Bernard et al v. Grefer et al

Filing 103

ORDER AND REASONS re 52 MOTION to Dismiss and 82 MOTION to Dismiss pursuant to Rules 12(b)(4) and 12(b)(5); ORDERED that Plaintiffs shall properly serve MOEPSI with the complaint and summons in this matter, or obtain a waiver of service, no later than 3/27/2015. If the Plaintiffs fail to do so, the Court will dismiss the action against MOEPSI. Signed by Judge Eldon E. Fallon on 3/17/2015.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CATHERINE M. BERNARD

CIVIL ACTION

VERSES

NO. 14-887

JOSEPH GREFER, ET AL.

SECTION "L" (2)

ORDER & REASONS
Before the Court is Defendant Mobil Exploration & Producing Southeast Inc.’s
(“MOEPSI”) Motion to Dismiss pursuant to Rules 12(b)(4) and 12(b)(5). (Rec. Doc. 82).
Therein, MOEPSI re-urges its earlier Motion to Dismiss. (Rec. Doc. 52). Having considered the
applicable law and the parties' briefs, the Court now issues this order and reasons.
I.

BACKGROUND
This case arises out of alleged personal injuries and property damages that resulted from

alleged exposure to naturally occurring radioactive material (“NORM”), also known as
technologically enhanced radioactive materials (“TERM”), as part of oil operations by various
pipe-cleaning defendants. In addition to the pipe-cleaning defendants, Plaintiffs name
landowners who owned the land upon which the pipe-cleaning operations were conducted and
oil companies as defendants. The Petition asserts claims by approximately 465 Plaintiffs, and
they originally filed their claims in the Civil District of Orleans Parish on March 5, 2014.
Defendant Transco Exploration Co. removed the case to this Court pursuant to the Class Action
Fairness Act. (Rec. Doc. 1). Defendant MOEPSI is named in the original complaint.
II.

PRESENT MOTIONS
MOEPSI filed its first Motion to Dismiss pursuant to rules 12(b)(4) and 12(b)(5) on

September 22, 2014. (Rec. Doc. 52). Subsequent to that Motion, Plaintiffs ultimately filed an

amended complaint on December 23, 2014. (Rec. Doc. 76). After Plaintiffs filed their amended
complaint, MOEPSI re-urged its Motion to Dismiss. (Rec. Doc. 82). MOEPSI states that it was
never served with the original petition, despite the fact that Plainitiffs named them as a defendant
therein. Rather, Plaintiffs served Mobil Exploration & Producing U.S., Inc (“MEPUS”), a related
but separate corporate entity not named as a defendant in this matter. After filing their amended
complaint, Plaintiffs again sought service on MEPUS. MOEPSI avers that it should be
dismissed from this action, as it has not been properly served.
Plaintiffs respond by leave of court, arguing that their action should be maintained, as
MOEPSI has failed to show any prejudice created by the defects in service. They argue that
because the defect is minor, MOEPSI’s motion should be denied.
III.

LAW & ANALYSIS
Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5) both challenge the sufficiency of

service of the summons and complaint. Rule 12(b)(4) challenges the form of the process and the
contents of the summons, specifically its noncompliance with Rule 4(b). Gartin v.
Pharmaceutical Companies, Inc., 289 Fed. Appx. 688, fn. 3 (5th Cir. 2008) (citing Charles Alan
Wright and Arthur R. Miller, 5B Fed. Prac. & Proc. Civ. § 1353 (3d ed.)). Rule 12(b)(5) motions
challenge the mode of delivery or the lack of delivery, including situations where the service is
delivered to an individual who is not an agent of the defendant and is not authorized to receive
service on his behalf. Id. Where, as here, the Defendant challenges the service on the grounds
that the defendant is misnamed in the summons, it is proper to consider the motion under both
Rule 12(b)(4) and Rule 12(b)(5). Charles Alan Wright and Arthur R. Miller, 5B Fed. Prac. &
Proc. Civ. § 1353 (3d ed.). Here, service is deficient pursuant to Rule 12(b)(4), as the party
named in the summons is not the party named as defendant. Process is also deficient pursuant to

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Rule 12(b)(5), as it was served on MEPUS, who is not the agent of the Defendant MOEPSI and
is not authorized to receive service on its behalf. Delivery was therefore not properly made.
Defendants have requested dismissal with prejudice; however, dismissal is only
appropriate where the defect in service is prejudicial to the defendant. Louisiana Acorn Fair
Hous. v. Quarter House, 952 F. Supp. 352 (E.D. La. 1997) (Africk, J.). Even then, such
dismissal is typically without prejudice. U.S. Fire Ins. Co. v. Miller, No. 02-1828, 2002 WL
31886812, at *2 (E.D. La. Dec. 18, 2002) (Vance, J.). Here, Defendants have offered no
evidence that they are prejudiced by the service defects in this case. Indeed, it is apparent that
MOPESI has received actual notice of this suit. Dismissal is therefore inappropriate.
Where it appears that there is a reasonable prospect that a plaintiff will ultimately be able
to properly serve a defendant, the appropriate course of action is to quash service in lieu of
dismissing the case. Thomas v. New Leaders for New Schools, 278 F.R.D. 347, 352. (E.D. La.
2011)(Africk, J.). As MOPESI and MEPUS are related corporations, it is likely that Plaintiffs
will be able to properly serve MOEPSI. Where dismissal is inappropriate, “[t]he Court has the
power to construe a motion to dismiss pursuant to Rule 12(b)(5) as a motion to quash service.”
Id. The court will therefore construe the motion as a motion to quash the service issued to
MEPUS. Consequently, because there appears to be a reasonable possibility that Plaintiffs will
be able to successfully serve MOEPSI, the court will quash service and provide the Plaintiffs 10
days within which to serve MOEPSI.
IV.

CONCLUSION
For the forgoing reasons, IT IS ORDERED that Plaintiffs shall properly serve MOEPSI

with the complaint and summons in this matter, or obtain a waiver of service, no later than
March 27, 2015. If the Plaintiffs fail to do so, the Court will dismiss the action against MOEPSI.

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New Orleans, Louisiana this 17th day of March, 2015.
____

UNITED STATES DISTRICT JUDGE

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