Tucker v. Unitech Training Academy et al
ORDERED that Defendant Alana Sarrazin's Motion to Dismiss (R. Doc. 30 ) is DENIED. It is FURTHER ORDERED that Plaintiff's Motion for Extension of Time to File a Response to Defendant Alana Sarrazin's Motion to Dismiss (R. Doc. 35 ) is DENIED AS MOOT. Signed by Judge Carl Barbier. (gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ACADEMY, ET AL.
ORDER & REASONS
Before the Court are two motions. First is Defendant Alana
Sarrazin’s motion to dismiss for untimely service of process. (R.
Doc. 30.) Second is Plaintiff’s motion for extension of time to
reply to Defendant Alana Sarrazin’s motion to dismiss. (R. Doc.
35.) Having considered the motions and legal memoranda, the record,
and the applicable law, the Court finds that Defendant Alana
Sarrazin’s motion to dismiss for untimely service (R. Doc. 30)
should be DENIED, and that Plaintiff’s motion for extension of
time to reply to Defendant Alana Sarrazin’s motion to dismiss (R.
Doc. 35) should be DENIED AS MOOT.
FACTS AND PROCEDURAL BACKGROUND
On December 28, 2015, Plaintiff filed suit against Unitech
Training Academy and its employees, Alana Sarrazin and Michelle
Hammothe, alleging discriminatory and adverse employment practices
in violation of, inter alia, Title VII of the Civil Rights Act of
1964 and the Americans with Disabilities Act. (R. Doc. 1 at 2, 5.)
On August 8, 2016, the named Defendants filed a motion to dismiss
due to improper and untimely service of process. (R. Doc. 14.) On
October 3, 2016, this Court issued an Order and Reasons denying
Defendants’ motion. (R. Doc. 24.) While the Court determined that
Defendants were not properly or timely served, the Court granted
Plaintiff an additional thirty days from the date of the Order and
Reasons to perfect proper and timely service. Id. at 9. On November
21, 2016, Defendant Alana Sarrazin filed another motion to dismiss
(R. Doc. 30). In short, Defendant Sarrazin argues that she was not
served within thirty days of October 3, 2016. (R. Doc. 30-1 at 2.)
Consequently, Defendant Sarrazin requests that this Court dismiss
effectuate service. Id. at 6.
The deadline for Plaintiff to file an opposition to Defendant
Sarrazin’s motion to dismiss was no later than eight days before
Sarrazin’s motion was set for submission on Wednesday, December
21, 2016. (R. Doc. 30 at 3.) Accordingly, Plaintiff’s deadline to
file an opposition was Tuesday, December 13, 2016. Plaintiff did
not submit a timely opposition. On December 20, 2016, Plaintiff
filed a motion for an extension of time to respond to Defendant
Sarrazin’s motion to dismiss. (R. Doc. 32; R. Doc. 35.) In short,
Plaintiff argues that this is her first request for such extension,
and that Defendant Sarrazin’s motion contains complex issues that
must be fully explored. (R. Doc. 35 at 1.) Further, Plaintiff’s
proof of service on Defendant Sarrazin was not submitted to the
Court until December 28, 2016, although service appears to have
been properly executed on Defendant Sarrazin on November 3, 2016.
See (R. Doc. 30-1 at 2; R. Doc. 33.) The motions are now before
the Court on the briefs and without oral argument.
Federal Rule of Civil Procedure 6
Federal Rule of Civil Procedure 6(a)(1)(A)-(C) provides:
(a) Computing Time. The following rules apply in
computing any time period specified in these rules, in
any local rule or court order, or in any statute that
does not specify a method of computing time.
(1) Period Stated in Days or a Longer Unit. When the
period is stated in days or a longer unit of time:
(A) exclude the day of the event that triggers the
(B) count every day, including intermediate Saturdays,
Sundays, and legal holidays; and
(C) include the last day of the period, but if the last
day is a Saturday, Sunday, or legal holiday, the period
continues to run until the end of the next day that is
not a Saturday, Sunday, or legal holiday.
Federal Rule of Civil Procedure 4(l)
Federal Rule of Civil Procedure 4(l)(1),(3) provides:
(1) Affidavit Required. Unless service is waived, proof of
service must be made to the court. Except for service by a
United States marshal or deputy marshal, proof must be by the
server's affidavit. . . .
(3) Validity of Service; Amending Proof. Failure to prove
service does not affect the validity of service. The court
may permit proof of service to be amended.
Defendant Sarrazin argues that she was not served within
thirty days from the Court’s October 3, 2016 Order and Reasons.
Federal Rule of Civil Procedure 6 provides that when the period of
a Court’s order is stated in days, the period excludes the day of
the event that triggers the period. Fed. R. Civ. P. 6(a)(1)(A).
Thus, the period within which Plaintiff was required to properly
serve Defendant Sarrazin commenced on October 4, 2016, as the
Court’s October 3, 2016 Order triggered the period. Further, thirty
days from October 4, 2016 is November 3, 2016. Defendant admits
she “was served with process on November 3, 2016.” (R. Doc. 30-1
Defendant also argues that “no proof of service has been filed
into the record evidencing the untimely service made on Alana
Sarrazin.” Id. At the time Defendant Sarrazin filed her motion,
and as of the submission date on the motion, Plaintiff had not
produced any evidence that Defendant Sarrazin was timely served.
However, Defendant Sarrazin’s own motion admits that she was served
on November 3, 2016. Id. Further, Plaintiff has since filed proof
of service on Defendant Sarrazin into the record. See (R. Doc.
affidavit that he personally served the summons on Defendant Alana
Sarrazin at LeBlanc Pharmacy located at 7211 Regent Street, New
Orleans, Louisiana on November 3, 2016. Id. Nevertheless, even if
“failure to prove service does not affect the validity of service.”
Fed. R. Civ. Pro. 4(l)(3). Defendant’s admission that she was
served on November 3, 2016 is sufficient proof that Plaintiff
timely served Defendant Sarrazin in accordance with this Court’s
October 3, 2016 Order and Reasons (R. Doc. 24). Because Defendant
Sarrazin does not argue that service was defective in any other
manner, her motion (R. Doc. 30) must be denied.
IT IS HEREBY ORDERED that Defendant Alana Sarrazin’s Motion
to Dismiss (R. Doc. 30) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Extension
of Time to File a Response to Defendant Alana Sarrazin’s Motion to
Dismiss (R. Doc. 35) is DENIED AS MOOT.
New Orleans, Louisiana this 9th day of January, 2017.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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