Amir El v. Louisiana State et al
Filing
19
ORDER & REASONS. It is ORDERED that Defendant's 17 Motion to Dismiss is GRANTED IN PART and DENIED IN PART. The Entry of Default (R. Doc. 14 ) is hereby SET ASIDE with respect to both Defendants, the State of Louisiana and Jefferson Pa rish. However, Plaintiff is granted an additional 90 days from the entry of this Order to properly serve Defendants in conformity with the requirements established by the Federal Rules of Civil Procedure. This Order shall stand as notice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure that if service is not properly executed, Plaintiff's claims may be dismissed without prejudice. Signed by Judge Carl Barbier. (gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KING SANDI AMIR EL
CIVIL ACTION
VERSUS
NO: 16-2125
LOUISIANA STATE, ET AL.
SECTION: “J”(2)
ORDER & REASONS
Before the Court is Defendant, the Parish of Jefferson,
Louisiana’s (Jefferson Parish) Motion to Dismiss Pursuant to Rule
12(b)(5) of the Federal Rules of Civil Procedure (R. Doc. 17), and
a response thereto filed by Plaintiff King Sandi Amir El (R. Doc.
18). Having considered the motion and legal memoranda, the record,
and the applicable law, the Court finds that the motion should be
GRANTED IN PART and DENIED IN PART, as explained more fully below.
FACTS AND PROCEDURAL BACKGROUND
Jefferson Parish’s motion comes in response to this Court’s
July 25, 2016 Entry of Default against the Parish and the State of
Louisiana (Defendants). (R. Doc. 14.) On March 14, 2016, Plaintiff
filed a pro se and in forma pauperis suit against Jefferson Parish
and
the
State
of
Louisiana
alleging
numerous
constitutional
violations. (R. Doc. 1.) On June 7, 2016, Plaintiff filed an Ex
Parte Motion for Entry of Default against Defendants for failure
to plead or otherwise respond. (R. Doc. 9-1 at 3.) On September
12, 2016, Jefferson Parish filed the present motion to dismiss
arguing that Plaintiff failed to effect proper service on Jefferson
Parish. (R. Doc. 17-1.) Consequently, Jefferson Parish argues that
all claims against the Parish should be dismissed and the entry of
default set aside. See id. In response, Plaintiff argues that the
Defendants were properly served “whether directly or via employees
(parish-state agents) by the U.S. Marshall’s service. . . .” (R.
Doc. 18 at 2.) Jefferson Parish’s motion to dismiss is now before
the Court on the briefs and without oral argument.
DISCUSSION
Jefferson
Parish
argues
that
Plaintiff
failed
to
effect
proper service on the Parish’s agent for service of process.
Jefferson Parish produced the process receipt and return which
shows
that
Plaintiff
requested
the
Marshal’s
service
effect
service on the “District Attorney’s Office for the Parish of
Jefferson (State of La.), 200 Derbigny Street, Gretna, La.” (R.
Doc. 8.) Jefferson Parish argues that the “District Attorney’s
Office for the Parish of Jefferson” is not an agent for service of
process for the Parish, nor is the district attorney’s office
permitted to accept service on behalf of Jefferson Parish. Patti
Nuccio, an administrative assistant at the district attorney’s
office, was the person who accepted service from the Marshal’s
service. Jefferson Parish argues that she is not a named defendant
in this case nor an agent of Jefferson Parish authorized to accept
service on its behalf. For these reasons, Jefferson Parish argues
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that service of process was insufficient and all claims against it
should be dismissed. (R. Doc. 8.) In opposition, Plaintiff argues
that Defendants were properly served “directly or via employees”
by the United States Marshal’s Service. (R. Doc. 18 at 2.)
Jefferson Parish’s Rule 12(b)(5) motion to dismiss is, in
essence, also asking the Court to set aside the Court’s Entry of
Default (R. Doc. 14). Under Rule 12(b)(5), a defendant may assert
insufficient service of process as a defense to a claim for relief.
Lewis v. La. Dep’t of Transp. & Dev., No. 10-4600, 2011 WL 3502327,
at *1 (E.D. La. Aug. 10, 2011). The burden of proof is on the party
asserting the sufficiency of the process and service at issue.
Shabazz v. City of Houston, 515 F. App’x 263, 264 (5th Cir. 2013).
“The court may set aside an entry of default for good cause. . .
.”
Fed.
R.
Civ.
P.
55(c).
Courts
consider
three
factors
to
determine whether “good cause” exists: (1) whether the default was
willful; (2) whether the plaintiff would be prejudiced; and (3)
whether the defense is meritorious. Hancock Bank v. Oller, No. 141300, 2016 WL 301695, at *2 (E.D. La. Jan. 25, 2016).
Jefferson Parish did not address the three “good cause”
factors, but the Court shall interpret Jefferson Parish’s motion
to dismiss for improper service as the default not being willful
and as a potentially meritorious defense. See United States v. One
Parcel of Real Prop., 763 F.2d 181, 183 (5th Cir. 1985) (citing
cases) (construing motion not labeled as “motion to set aside entry
3
as default” as such). Thus, if Plaintiff cannot satisfy his burden
of proving service on Jefferson Parish was proper, the Entry of
Default against the Parish will be set aside. See In re OCA, 551
F.3d 359, 370 (5th Cir. 2008) (motions to set aside entry of
default are more commonly granted than motions to set aside default
judgments); Broad. Music, Inc. v. M.T.S. Enter., Inc., 811 F.2d
278, 282 (5th Cir. 1987) (“No person need defend an action nor
suffer judgment against him unless he has been served with process
and properly brought before the court.”). Plaintiff’s opposition
to Jefferson Parish’s motion to dismiss is void of any legal
support for his assertion that service on Ms. Nuccio is proper
under of the Federal Rules of Civil Procedure or Louisiana Code of
Civil Procedure. Specifically, Plaintiff fails to address Rule
4(j)(2) 1 or Article 1265 2 of the Louisiana Code of Civil Procedure.
See (R. Doc. 18.) Plaintiff only argues that Jefferson Parish was
1 Rule 4(j)(2)(A)-(B) provides that service of process on a local government
can be made either by “delivering a copy of the summons and of the complaint to
its chief executive officer, or serving a copy of each in the manner prescribed
by that state’s law for serving a summons or like process on such a defendant.”
2 Article 1265 states:
Service of citation or other process on any political subdivision,
public corporation, or state, parochial or municipal board or
commission is made at its office by personal service upon the chief
executive officer thereof, or in his absence upon any employee
thereof of suitable age and discretion. A public officer, sued as
such, may be served at his office either personally, or in his
absence, by service upon any of his employees of suitable age and
discretion. If the political entity or public officer has no
established office, then service may be made at any place where the
chief executive officer of the political entity or the public
officer to be served may be found.
La. Code of Civ. P. Art. 1265. See also La. Rev. Stat. § 39:1538; La. Rev. Stat.
§ 13:5107.
4
properly served either directly or via employees by the United
States Marshal’s service on April 1, 2016. Id. Similarly, Jefferson
Parish’s motion merely states that Ms. Nuccio is not the agent for
service of process for Jefferson Parish, and therefore service was
improper.
(R.
Doc.
12.)
Jefferson
Parish’s
motion
fails
to
affirmatively state who its agent for service of process is, or
the proper method to serve Jefferson Parish under the federal or
state rules. Nevertheless, it is Plaintiff’s burden to prove the
sufficiency of process and service. Shabazz, 515 F. App’x at 264.
Plaintiff has failed to prove process and service were sufficient
as to Defendant Jefferson Parish. Accordingly, the Court must
determine whether to dismiss the action without prejudice or
provide the pro se Plaintiff additional time to attempt proper
service.
Upon
determination
that
service
was
insufficient,
the
district court may simply quash service of process or dismiss the
action
without
prejudice.
See
Int’l
Transactions,
Ltd.
v.
Embotelladora Agral Regionmontana SA de CV, 277 F. Supp. 2d 654,
665 (N.D. Tex. 2002). “Where a court finds service is insufficient
but curable, the general rule is that it should quash the service
rather
than
dismiss
the
complaint
and
give
the
plaintiff
an
opportunity to re-serve the defendant.” Rhodes v. J.P. Sauer &
Sons, Inc., 98 F. Supp. 2d 746, 750 (W.D. La. 2000). Dismissal is
proper only where proper service would be futile. Id. The Court
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finds that dismissal is inappropriate due to Plaintiff’s pro se
status and diligent attempt to properly serve Jefferson Parish.
Further, despite acting pro se, Plaintiff’s numerous filings and
attempted use 3 of the Federal Rules shows his willingness and
ability to properly serve Jefferson Parish. See Raburn v. Dae Woo,
Inc., No. 09-1172, 2010 WL 743933, at *4 (N.D. Tex. Mar. 3, 2010)
(noting the plaintiff’s “willingness and ability” to properly
serve defendant as factor in support of granting additional time).
Accordingly,
while
the
Entry
of
Default
is
set
aside
as
to
Jefferson Parish, the Court denies Jefferson Parish’s request to
dismiss Plaintiff’s claims without prejudice. Plaintiff shall be
granted an additional ninety (90) days to properly serve Jefferson
Parish in conformity with the Federal Rules of Civil Procedure.
The State of Louisiana has not filed a response in this case,
presumably because Plaintiff did not properly serve the State of
Louisiana. Rule 4(j)(2) provides that a state must be served by
delivering a copy of the summons and complaint to the state’s chief
executive officer or in a matter prescribed by that state’s law.
See Fed. R. Civ. P. 4(j)(2). Governor John Bel Edwards is the Chief
Executive Officer of Louisiana. See Terrebonne Par. NAACP v.
Jindal, No. 14-069, 154 F. Supp. 3d 354, 360 (M.D. La. Dec. 8,
3 Plaintiff’s motion in opposition cited to Federal Rule 4(l)(1) in support of
his argument that service was proper. (R. Doc. 18 at 2.) However, Rule 4(l)(1)
provides how to prove service, not whether such service was proper.
6
2015). Plaintiff did not serve Governor Edwards. See (R. Doc. 8.)
Further, Louisiana Revised Statute § 13:5107 provides:
In all suits filed against the state of Louisiana or a
state agency, citation and service may be obtained by
citation and service on the attorney general of
Louisiana, or on any employee in his office above the
age of sixteen years, or any other proper officer or
person, depending upon the identity of the named
defendant and in accordance with the laws of this
state, and on the department, board, commission, or
agency head or person, depending upon the identity of
the named defendant and in accordance with the laws of
this state, and on the department, board, commission, or
agency head or person, depending upon the identity of
the named defendant and the identity of the named board,
commission, department, agency, or officer through which
or through whom suit is to be filed against.
Plaintiff has not properly served any proper person pursuant to §
13:5107. (R. Doc. 8.) Thus, Plaintiff has failed to prove service
of process upon Defendant State of Louisiana was proper. Rule 4(m)
of the Federal Rules of Civil Procedure provides that “[i]f a
defendant is not served within 90 days after the complaint is filed
the court—on motion or on its own after notice to the plaintiff—
must dismiss the action without prejudice against that defendant
or order that service be made within a specified time.” See also
Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996)
(explaining that if proper service is not made, the action is
subject to sua sponte dismissal, without prejudice, by the district
court after notice to the plaintiff). The Court is acting sua
sponte and is therefore unable to dismiss Plaintiff’s claims
against the State of Louisiana, because Plaintiff has not received
7
notice. See Fed. R. Civ. P. 4(m); Lindsey, 101 F.3d at 446.
Accordingly, the Entry of Default (R. Doc. 14) is also set aside
with respect to the State of Louisiana; however, Plaintiff shall
be granted an additional ninety (90) days to properly serve the
State of Louisiana in accordance with the Federal Rules of Civil
Procedure. Further, this Order shall stand as notice to Plaintiff
that if service is not properly executed, Plaintiff’s claims may
be dismissed without prejudice. See id.
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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (R.
Doc. 17) is GRANTED IN PART and DENIED IN PART. The Entry of
Default (R. Doc. 14) is hereby SET ASIDE with respect to both
Defendants, the State of Louisiana and Jefferson Parish. However,
Plaintiff is granted an additional ninety (90) days from the entry
of this Order to properly serve Defendants in conformity with the
requirements established by the Federal Rules of Civil Procedure.
This Order shall stand as notice pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure that if service is not properly
executed, Plaintiff’s claims may be dismissed without prejudice.
New Orleans, Louisiana this 4th day of October, 2016.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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