Landry v. Chabert Operational Management Company, L.L.C. et al
ORDER AND REASONS: Before the Court is Defendant Todd Duplantis' improperly styled 48 Motion to Set Defendant's Defense for Insufficiency of Service of Process for Hearing. Plaintiff did not file an opposition. Defendant's motion sho uld have been styled, and we will consider it as, a motion to dismiss under Federal Rule of Civil Procedure 12(b). IT IS ORDERED that Plaintiff's claims against Defendant Duplantis are DISMISSED WITHOUT PREJUDICE for failure to properly effectuate service of process. Signed by Judge Ivan L.R. Lemelle on 11/2/2016.(mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SAUL FRANCIS LANDRY, III
CHABERT OPERATIONAL MANAGEMENT,
COMPANY, L.L.C., ET AL.
ORDER AND REASONS
Before the Court is Defendant Todd Duplantis’ (“Duplantis”)
Insufficiency of Service of Process for Hearing.” Rec. Doc. 48.
Plaintiff did not file an opposition. Defendant’s motion should
have been styled, and we will consider it as, a motion to dismiss
under Federal Rule of Civil Procedure 12(b). Further, under the
Local Rules of this federal court, motions are set for submission,
not hearing. For the reasons set forth below,
IT IS ORDERED that Plaintiff’s claims against Defendant
Duplantis are DISMISSED WITHOUT PREJUDICE for failure to properly
effectuate service of process.
complaint, alleging, among other things, a defense of insufficient
service of process. Rec. Doc. 41 at 1-2. In the present motion,
Duplantis “moves to set [his] defense of insufficient service of
process as set forth in [his] Answer . . . for hearing” pursuant
to Federal Rule of Civil Procedure 12(i). Rec. Doc. 48 at 1. In
insufficient service of process to dismiss the complaint . . . .”
Rec. Doc. 48-3 at 1. As already noted, that motion is being treated
as a motion to dismiss and is deemed submitted. Accordingly, he
argued that Plaintiff attempted to serve him by serving an employee
of the Terrebonne Parish Consolidated Government (“TPCG”) at their
government office, even though Duplantis no longer worked for the
TPCG and did not reside at the government office. Id. Duplantis
notes that Plaintiff was aware that
Duplantis no longer worked
for the TPCG, because the summons is addressed to “Ex Police Chief
Todd Duplantis.” Rec. Doc. 48-1 at 1 (emphasis added). Because
Duplantis was not served in accordance with Federal Rule of Civil
Procedure 4(e), he argues that the Plaintiff’s claims against him
should be dismissed. Rec. Doc. 48-3 at 2-3.
Federal Rule of Civil Procedure 12(b) provides that
[e]very defense to a claim for relief in any pleading
must be asserted in the responsive pleading if one is
required. But a party may assert the following defenses
by motion: . . . (5) insufficient service of process . .
. . A motion asserting any of these defenses must be made
before pleading if a responsive pleading is allowed . .
. . No defense or objection is waived by joining it with
one or more other defenses or objections in a responsive
pleading or in a motion.
FED. R. CIV. P. 12(b) (emphasis added). Here,
the defense of insufficiency of service of process in his original
answer. Rec. Doc. 41 at 1-2. According to the Federal Rules, a
defense is only waived if a party failed to raise the defense by
motion under Rule 12 or failed to raise “it in a responsive
pleading or in an amendment allowed by Rule 15(a)(1) as a matter
of course.” FED. R. CIV. P. 12(h)(1); see also M-I LLC v. Stelly,
733 F. Supp. 2d 759, 772 (S.D. Tex. 2010) (after quoting Rule
12(i), concluding that “Because the Defendants’ motion to dismiss
is based on a defense they raised originally in their answers,
[Plaintiff’s] waiver argument fails”) (citing
Racing & Motorcycles, Inc. v. Robinson, 2010 WL 2757523, at *3
(S.D. Tex. July 13, 2010)). Accordingly,
for insufficient service of process is properly before this Court.
Under Rule 12(i), “[i]f a party so moves, any defense listed
in Rule 12(b)(1)-(7)—whether made in a pleading or by motion— . .
. must be heard and decided before trial unless the court orders
a deferral until trial.” FED. R. CIV. P. 12(i). It appears that Rule
12(i) is rarely used.1 In one of the few cases discussing Rule
insufficient service of process, the Sixth Circuit explained that
[t]echnically speaking, it is improper to raise a
challenge to service of process in a motion for summary
judgment because the defense ‘involves a matter in
abatement and does not go to the merits of the action.’
Nevertheless, when the defense has been preserved in an
answer and is later raised in a pre-trial motion, a court
For example, it has been used by various courts in Texas to defer ruling on
portions of motions to dismiss. See, e.g. Texas v. United States, No. 15-151,
2016 WL 4138632, *24 (N.D. Tex. Aug. 4, 2016); Aderholt v. Bureau of Land Mgmt.,
No. 15-162, 2046 WL 3541857, *9 (N.D. Tex. June 29, 2016); St. Gregory Cathedral
School v. LG Elecs., Inc., No. 12-739, 2015 WL 11121531, at *9 (E.D. Tex. Mar.
13, 2015); Calip v. Concentra Health Serv., Inc., No. 08-2104, 2010 WL 637800,
*3 (N.D. Tex. Feb. 22, 2010); Hill v. Hunt, No. 07-2020, 2010 WL 54756, *3 n.2
(N.D. Tex. Jan. 4, 2010).
will look past the label chosen by the movant and treat
the motion as a request for a ruling on the defense made
under . . . Rule 12(i).
King v. Taylor, 694 F.3d 650, 657 n.2 (6th Cir. 2012) (internal
citations omitted). Several other defendants in this case filed
motions to dismiss pursuant to Rule 12(b) prior to filing an answer
(a more familiar and preferred way to assert 12(b) defenses).2
Duplantis followed an alternative procedure made available by
the Federal Rules.
Thus, under Rule 4(e), an individual may be served by
following state law for serving a summons in an
action brought in courts of general jurisdiction in
the state where the district court is located or
where service is made; or
doing any of the following:
(A) delivering a copy of the summons and of the
complaint to the individual personally;
(B) leaving a copy of each at the individual’s
dwelling or usual place of abode with someone
of suitable age and discretion who resides
(C) delivering a copy of each to an agent
authorized by appointment or by law to receive
service of process.
In this case, Duplantis’ summons was personally served on
Leilani Hardee, an employee of the TPCG at 8026 Main Street, Houma,
For example, Defendants Chabert Operational Management Company, LLC and
Oschner filed a motion to dismiss pursuant to Rule 12(b)(6) on July 11, 2016,
prior to answering Plaintiff’s complaint. Rec. Doc. 23. This Court granted the
motion as unopposed on August 4, 2016. Rec. Doc. 34. Similarly, Defendant
Rushing Media filed a motion to dismiss pursuant to Rule 12(b)(5) for
insufficiency of service of process on August 1, 2016, prior to answering
Plaintiff’s complaint. Rec. Doc. 30. Again, this Court granted the motion as
unopposed on August 17, 2016. Rec. Doc. 43. Finally, Defendant Jean Savoie filed
a motion to dismiss for insufficiency of service of process on August 17, 2016,
prior to filing an answer (Rec. Doc. 44) and this Court granted the motion as
unopposed on September 8, 2016 (Rec. Doc. 47).
Louisiana 70360. Rec. Doc. 48-1 at 2. Duplantis was no longer
employed by the TPCG and he did not reside at 8026 Main Street,
nor did he have an authorized agent for service. Rec. Doc. 48-3.
domiciliary service, or by service on an authorized agent. He was
not properly served and the claims against him should be dismissed.
Even though Duplantis filed the instant motion on September
28, 2016 and set it for submission on November 2, 2016, Plaintiff
memorandum in opposition was due on or before October 25, 2016. No
party filed a motion to continue the noticed submission date or a
motion for extension of time within which to oppose the motion.
While pro se litigants are provided greater leniency in certain
areas, they are still obligated to comply with all court orders,
rules, and deadlines. Beard v. Experian Info. Sols. Inc., 214 Fed.
App’x 459, 462 (5th Cir. 2007) (citing Birl v. Estelle,660 F.2d
592, 593 (5th Cir. 1981)). For the reasons outlined above,
IT IS ORDERED that Plaintiff’s claims against Duplantis are
DISMISSED WITHOUT PREJUDICE for failure to properly effectuate
service of process.
New Orleans, Louisiana, this 2nd day of November, 2016.
SENIOR UNITED STATES DISTRICT JUDGE
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