Collins v. WAFB, LLC et al

Filing 20

ORDER AND REASONS: IT IS ORDERED that Defendant's 6 motion to dismiss is DENIED WITHOUT PREJUDICE to re-urge after the time to perfect service has expired. Signed by Judge Ivan L.R. Lemelle on 12/16/2016. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELEANOR G. COLLINS

CIVIL ACTION

VERSUS

NO. 16-15648

WAFB, LLC, ET AL.

SECTION "B"(3)
ORDER AND REASONS

Before the Court is Defendant WAFB, LLC’s (“WAFB”) “Motion to
Dismiss

for

Insufficient

Service

of

Process.”

Rec.

Doc.

6.

Plaintiff Eleanor Collins timely filed a response. Rec. Doc. 7. As
more fully explained below,
IT IS ORDERED that Defendant’s motion to dismiss (Rec. Doc.
6) is DENIED WITHOUT PREJUDICE.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of Plaintiff’s allegedly false arrest

on January 22, 2016. Rec. Doc. 1 at 2. The arrest was reported by
WAFB, as well as Defendants Times Picayune, Bogalusa Daily News,
and NOLA.com. Id. In her complaint, Plaintiff states that these
news agencies failed to clarify that allegedly fraudulent checks
totaling $27,000 were not issued from her personal account. Id. at
4. Specifically, Plaintiff states that
It has harmed the reputation of the plaintiff, enabled
[sic]
employment
and
destroyed
the
plaintiff’s
credibility. The fact that the plaintiff was the owner
and these were company checks was never documented it
only gave the impression that the plaintiff wrote these
checks out of her personal checking account and
intentionally deceived Robertson Oil Company.

Id. at 4. According to Plaintiff, the charge was ultimately nolle
prossed. Id. at 3. Thus, on October 18, 2016, Plaintiff filed suit
against Defendants for libel, slander, defamation, assault, and
violations of Section 230 of the Communications Decency Act and
the First Amendment. Id. at 1.
II.

THE PARTIES’ CONTENTIONS

In its motion to dismiss, WAFB claims that it is a limited
liability company that was not properly served under the Federal
Rules of Civil Procedure. Rec. Doc. 6-1 at 2. Instead, it contends
that “Plaintiff attempted to serve WAFB with a summons and the
complaint by mail on its registered agent.” Id. Consequently, WAFB
moves for dismissal under Federal Rule of Civil Procedure 12(b)(5).
Id.
In response, pro se Plaintiff Collins reiterates some of the
arguments made in her complaint, copies and pastes the content of
Federal Rule of Civil Procedure 4 (as well as the amendments made
thereto), and begins arguing the merits of her case. Rec. Doc. 7
at 3-9.
III. LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 12(b)(5), a party may
move to dismiss a case for insufficient service of process. “In
the absence of valid service of process, proceedings against a
party are void.” Aetna Bus. Credit, Inc. v. Universal Décor &
Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981). “When
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service of process is challenged, the party on whose behalf it is
made must bear the burden of establishing its validity.” Id.
(citing Familia De Boom v. Arosa Mercantil, S.A., 629 F.2d 1134,
1139 (5th Cir. 1980)); see also Wesenberg v. New Orleans Airport
Motel Assocs. TRS, LLC, 14-1632, 2015 WL 5599012, at *1 (E.D. La.
Sept. 22, 2015). Nonetheless, “[t]he district court enjoys a broad
discretion

in

determining

whether

to

dismiss

an

action

for

ineffective service of process . . . .” George v. U.S. Dep’t of
Labor, Occupational Safety & Health Admin., 788 F.2d 1115, 1116
(5th Cir. 1986) (citing C & L Farms v. Fed. Crop Ins. Corp., 771
F.2d 407 (8th Cir. 1985)).
Federal

Rule

of

Civil

Procedure

4

establishes

the

requirements for summons and service of process and section (h)
provides that an unincorporated association must be served in one
of two ways. First, it may be served in the manner prescribed for
serving an individual under Rule 4(e)(1), which provides for
service 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 . . . .” FED.
R. CIV. P. 4(h)(1)(A); 4(e)(1). Accordingly, under Louisiana law,
a limited liability company must generally be served by personal
service on any one of its agents for service of process. LA. CODE
CIV. PROC.

art.

1266(A).

Second,

Rule

4(h)

provides

that

an

unincorporated association may be served “by delivering a copy of
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the summons and of the complaint to an officer, a managing or
general agent, or any other agent authorized by appointment or by
law to receive service of process . . . .”

FED. R. CIV. P.

4(h)(1)(B). Further, “[c]ourts have consistently held . . . that
Rule 4(h)(1)(B)’s delivery requirement refers to personal service,
not service by mail.” Wesenberg, 2015 WL 5599012, at *2 (citing
Larsen v. Mayo Med. Ctr., 218 F.3d 863, 868 (8th Cir. 2000);
Technologists, Inc. v. MIR’s Ltd., 725 F. Supp. 2d 120, 127 (D.D.C.
2010); Hazim v. Schiel & Denver Book Grp., No. 12-1286, 2013 WL
2152109, at *2 (S.D. Tex. May 16, 2013); Mettle v. First Union
Nat’l Bank, 279 F. Supp. 2d 598, 602 (D.N.J. 2003)).
Here, Plaintiff attempted to serve WAFB by mailing the summons
and complaint to WAFB’s registered agent. Rec. Doc. 6-1 at 2; Rec.
Doc. 2 at 2-3. According to the Federal Rules and the case law,
simply mailing the summons and complaint is not sufficient. See
Wesenberg,

2015

WL

5599012,

at

*2.

Even

if

the

mailing

was

sufficient to give WAFB actual notice of the pending lawsuit,
actual notice does “not operate as a substitute for process.”
Ransom v. Brennan, 437 F.2d 513, 519 (5th Cir. 1971); see also
Wesenberg, 2015 WL 5599012, at *2 n. 8; Price v. Hous. Auth. Of
New Orleans, 09-4257, 2010 WL 3802553, at *2 (E.D. La. Sept. 20,
2010). Consequently, Plaintiff’s claims against WAFB are subject
to

dismissal

for

insufficient

service

12(b)(5).
4

of

process

under

Rule

Nonetheless, under Rule 4(m),
If a defendant is not served within 90 days after the
complaint is filed, the court . . . must dismiss the
action without prejudice against that defendant or order
that service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.
Here, Plaintiff filed her complaint on October 18, 2016. Rec. Doc.
1. Consequently, if the Court’s calculations are correct, Rule
4(m) gives Plaintiff until as late as Monday, January 16, 2017 to
perfect service. Thus, dismissal would be premature, especially
because Plaintiff has attempted service and responded to this
motion—evidencing an intent to actively pursue her claims. See,
e.g. W.J. Enters., Inc. of Jefferson v. Granwood Flooring, Ltd.,
16-9492, 2016 WL 3746225, at *2 (E.D. La. July 13, 2016) (denying
without

prejudice

defendant’s

motion

to

dismiss

under

Rule

12(b)(5) as premature, because plaintiff took steps to correct the
service issue before the service deadline and the motion to dismiss
was filed “a mere 42 days after suit was filed”); Price v. Hous.
Auth. Of New Orleans, 09-4257, 2010 WL 2836103, at *2 (E.D. La.
July 16, 2010) (noting that Plaintiff had repeatedly attempted to
effect service of process and that “[w]hile he has made mistakes
in attempting to serve defendants, he has not shown the kind of
inaction that would justify dismissing his pro se complaint at
this point”).

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IV.

CONCLUSION

For the reasons outlined above,
IT IS ORDERED that Defendant’s motion to dismiss (Rec. Doc.
6) is DENIED WITHOUT PREJUDICE to re-urge after the time to perfect
service has expired. Plaintiff is warned that failure to timely
effect proper service may result in dismissal (FED. R. CIV. P. 4(m))
and that unrepresented pro se parties, just like represented
parties, are held accountable for complying with the Federal Rules
of Civil Procedure and Local Rules of Court, along with Court
orders (see, e.g. Fed. R. Civ. P. 41(b); Price v. McGlathery, 792
F.2d 472, 474 (5th Cir. 1986) (affirming dismissal of plaintiff’s
action for failure to prosecute after plaintiff’s counsel failed
to obey court orders); Beard v. Experian Info. Sols. Inc., 214 F.
App’x 459, 462 (5th Cir. 1981) (affirming sua sponte dismissal of
a pro se plaintiff’s action for failure to prosecute)).
New Orleans, Louisiana, this 16th day of December, 2016.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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