Burgos v. Scottsdale Insurance Company

Filing 7

ORDER AND REASONS granting MOTION 4 to Dismiss for Failure to State a Claim and for insufficiency of service of process filed by Scottsdale Insurance Company.. Signed by Chief Judge Sarah S. Vance on 4/28/14.(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CESAR R. BURGOS

CIVIL ACTION

VERSUS

NO: 14-531

SCOTTSDALE INSURANCE COMPANY

SECTION: R

ORDER AND REASONS
Defendant Scottsdale Insurance Company moves the Court to
dismiss this case without prejudice under Federal Rule of Civil
Procedure 12(b)(5).1 Because plaintiff's service of process on
defendant did not comply with Louisiana law, and because plaintiff
has not shown good cause for his failure to effect proper service,
the Court GRANTS defendant's motion and dismisses plaintiff's
complaint without prejudice.

I.

BACKGROUND
Plaintiff Cesar Burgos filed this lawsuit against Scottsdale

in

Louisiana

state

court

on

August

27,

2013,

alleging

that

Scottsdale improperly adjusted a claim Burgos made for damages his
property suffered as a result of Hurricane Isaac.2 Scottsdale was
served with plaintiff's petition for damages on February 26, 2014,3
and it removed this case to federal court on March 11, 2014 on the

1

R. Doc. 4.

2

R. Doc. 1-3 at 1-3.

3

Id. at 13.

basis of diversity jurisdiction.4 Scottsdale expressly reserved all
defenses and objections to plaintiff's complaint in its Notice of
Removal.5
Scottsdale now moves to dismiss plaintiff's complaint without
prejudice pursuant to Rule 12(b)(5), arguing that plaintiff failed
to request service of his state court petition on defendant within
the time period allowed by Louisiana Code of Civil Procedure
article 1201(C).6 Plaintiff has not responsed to Scottsdale's
motion.

II.

LEGAL STANDARD
Rule 12(b)(5) allows a defendant to challenge as insufficient

the method of service attempted by the plaintiff. "When service of
process is challenged, the serving party bears the burden of
proving its validity or good cause for failure to effect timely
service." Sys. Signs Supplies v. U.S. Dep't of Justice, Wash.,
D.C., 903 F.2d 1011, 1013 (5th Cir. 1990) (per curiam); accord
Shabazz v. City of Houston, 515 F. App'x 263, 264 (5th Cir. 2013).
Because Burgos served Scottsdale before Scottsdale removed
this case to federal court, the Court must apply Louisiana law to
determine the validity of service. Freight Terminals Inc. v. Tyder
Sys., Inc., 461 F.2d 1046, 1052 (5th Cir. 1972) ("[T]he district

4

See R. Doc. 1.

5

Id. at 4.

6

R. Doc. 4.
2

court must look to state law to ascertain whether service was
properly made prior to removal . . . ."); see also Sal Ciolino &
Assocs. v. First Extended Serv. Corp., 156 F. App'x 621, 622 (5th
Cir. 2005); Hutchinson v. Dollar Gen. Corp., Civil Action No. 07574, 2008 WL 1803778, at *2 (M.D. La. Apr. 18, 2008); Castillo v.
St. Charles Corr. Ctr., No Civ. 06-0043, 2006 WL 4027292, at *5
(E.D. La. Aug. 15, 2006); McKinley v. Sanderson Farms, Inc., No
Civ.A. 06-0044, 2006 WL 901831, at *1 (E.D. La. Apr. 6, 2006).
Under Louisiana law, service of a citation must "be requested on
all named defendants within ninety days of commencement of the
action." La. Code Civ. P. art. 1201(C). If a plaintiff fails to
request service on a defendant within the required time period,
"[a] judgment dismissing [the] action without prejudice shall be
rendered as to [that defendant] . . . unless good cause is shown
why service could not be requested." La. Code Civ. P. art. 1672(C).
"Louisiana courts strictly construe the good cause requirement of
article 1672(C)." Barnett v. La. State Univ. Med. Ctr.-Shreveport,
841 So. 2d 725, 726 (La. 2003); see also Hutchinson, 2008 WL
1803778, at *3 ("Louisiana, as a matter of policy, commands strict
adherence to articles 1201(C) and 1672(C).").

III. DISCUSSION
Burgos filed his state court petition on August 27, 2013,7 and

7

R. Doc. 1-3 at 1.
3

requested that the court hold service on Scottsdale.8 Scottsdale
was not actually served until February 26, 2014, roughly six months
after the petition was filed.9 Thus, it appears that Burgos did not
request service on Scottsdale within the ninety-day period allowed
by Louisiana Code of Civil Procedure article 1201(C).10 Burgos -who, as the serving party, has the burden of proving that service
was proper, see Shabazz, 515 F. App'x at 264 -- has presented no
evidence tending to contradict this conclusion, nor has he shown
good cause for his failure to comply with the statute. Accordingly,
the Court must dismiss this action without prejudice pursuant to
Louisiana Code of Civil Procedure article 1672(C). See Sal Ciolino,
156 F. App'x at 622; Hutchinson, 2008 WL 1803778, at *3-5.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendant's motion

and dismisses plaintiff's complaint without prejudice.

New Orleans, Louisiana, this 28th day of April, 2014.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

8

Id. at 3.

9

R. Doc. 1 at 1; R. Doc. 1-3 at 13.

10

See R. Doc. 1-3 at 13.
4