Collins v. WAFB, LLC et al

Filing 37

ORDER AND REASONS: IT IS ORDERED that Defendant's 25 motion to dismiss is DENIED WITHOUT PREJUDICE to re-urge; IT IS FURTHER ORDERED that Plaintiff either obtain a waiver of service from Defendant or, failing that, properly serve Defendant (an d any other Defendant who has not yet been properly served) and file proof of service within twenty-one (21) days from the date of this Order. Again, Plaintiff is warned that it is her responsibility to properly serve Defendants (Fed. R. Civ. P. 4(c)(1)) and that her failure to timely effect proper service within the twenty-one day deadline will result in dismissal of all claims asserted against any Defendant who has not been properly served. Signed by Judge Ivan L.R. Lemelle on 3/9/2017. (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

Times-Picayune

L.L.C.’s

(“Times-Picayune”) “Motion to Dismiss for Insufficient Service of
Process or, in the Alternative, for Failure to Serve.” Rec. Doc.
25. Plaintiff Eleanor Collins timely filed a response. Rec. Doc.
26. Defendant then requested (Rec. Doc. 31), and was granted (Rec.
Doc. 33), leave to file a reply memorandum (Rec. Doc. 34). As more
fully explained below,
IT IS ORDERED that Defendant’s motion to dismiss (Rec. Doc.
25) is DENIED WITHOUT PREJUDICE.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As previously discussed, this case arises out of Plaintiff’s

arrest on January 22, 2016. Rec. Doc. 1 at 2. The arrest was
reported by Defendants Times-Picayune, WAFB, LLC (“WAFB”), and
Bogalusa Newsmedia, LLC. Id. In her complaint, Plaintiff states
that

these

fraudulent

news

agencies

failed

checks

totaling

$27,000

to

clarify

were

not

that
issued

allegedly
from

her

personal account. Id. at 4. Specifically, Plaintiff states that
It has harmed the reputation of the plaintiff, enabled
employment
[sic]
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
for violations of Section 230 of the Communications Decency Act
and the First Amendment. Id. at 1.
In an earlier motion to dismiss for insufficient service,
this Court noted that Plaintiff attempted to serve Defendant WAFB,
a limited liability company, by mailing the summons and complaint
to WAFB’s registered agent. Rec. Doc. 20 at 4. However, this Court
recognized
Plaintiff’s

that

service

claims

were

by

mail

therefore

was

insufficient

subject

to

and

dismissal

that
under

Federal Rule of Civil Procedure 12(b)(5). Id. (citing Wesenberg v.
New Orleans Airport Motel Assocs. TRS, LLC, No. 14-1632, 2015 WL
5599012,

at

*2

(E.D.

La.

Sept.

22,

2015).

However,

we

also

recognized that the time for service under Rule 4(m) did not expire
until January 16, 2017 and that Plaintiff, by responding to the
motion, evidenced an intent to actively pursue her claims. Id. at
5 (citations omitted). Accordingly, on December 16, 2016, we denied
the motion to dismiss without prejudice, but warned Plaintiff that
failure to properly effect service within the applicable time
period could result in dismissal. Id. at 6 (citations omitted).
2

II.

THE PARTIES’ CONTENTIONS

In its motion to dismiss, Defendant Times-Picayune argues
that Plaintiff failed to properly effect service within the time
limits permitted by Rule 4, that any extension of time to allow
proper service would be futile, and that Plaintiff’s claims should
therefore be dismissed. Rec. Doc. 25 at 1.
In response, pro se Plaintiff Collins recognizes that her
first attempt to serve Defendant was improper. Rec. Doc. 26 at 2.
However, she claims that she properly served Defendant on January
10, 2017 and even videotaped this attempt at service. Id. at 1-2.
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
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, 2015 WL 5599012, at *1.
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

3

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 allows 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 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
4

(S.D. Tex. May 16, 2013); Mettle v. First Union Nat’l Bank, 279 F.
Supp. 2d 598, 602 (D.N.J. 2003)). Personal service on someone other
than the registered agent is also considered insufficient. See,
e.g. Matthews v. Int’l House of Pancakes, Inc., No. 07-2869, 2008
WL 217173, at *4 (E.D. La. Jan. 23, 2008) (dismissing claims for
insufficient service of process where the plaintiff attempted to
serve the corporate owner of IHOP Restaurants by delivering a copy
of the summons and complaint to the general manager at a particular
IHOP Restaurant).
Rule 4(m) further provides that
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.
FED. R. CIV. P. 4(m) (emphasis added). “The ‘general rule’ is that
‘when a court finds that service is insufficient but curable, it
generally should quash the service and give the plaintiff an
opportunity to re-serve the defendant.’” Rhodes v. J.P. Sauer &
Sohn, Inc., 98 F. Supp. 2d 746, 750 (W.D. La. 2000) (quoting
Gregory v. U.S./U.S. Bankr. Court for Dist. of Colo., 942 F.2d
1498, 1500 (10th Cir. 1991) (quoting Pell v. Azar Nut Co., 711
F.2d

949,

950

n.2

(10th

Cir.

1983)))

omitted).

5

(some

quotation

marks

Here, Defendant is a limited liability company subject to
Rule 4(h). Defendant argues that its registered agent, counsel for
Defendant, originally received a copy of the summons and complaint
by certified mail on October 20, 2016. Rec. Doc. 25-1 at 2 (citing
Rec. Doc. 3). As we previously held on December 16, 2016, service
by mail on an unincorporated association is insufficient. See Rec.
Doc. 20 at 4 (citations omitted). Thereafter, Plaintiff attempted
to serve Defendant by personally delivering a copy of the summons
and complaint to the office of Defendant’s registered agent. Rec.
Doc. 25-1 at 2 (citing Rec. Doc. 23-1 at 4). The registered agent
was apparently out of the state on the day that Plaintiff attempted
personal service, so the summons and complaint were left with an
administrative employee of her law firm. Id. (citing Rec. Docs.
25-2, 25-3).1 According to Defendant, no other attempts at service
have been made. Id.
Plaintiff submitted a DVD to the Court that purportedly showed
that the registered agent’s secretary informed the process server
that she could accept service on the registered agent’s behalf.
Rec. Doc. 26 at 1-2. The Court reviewed the video. On it, a
receptionist is heard saying that a document had “Lori’s name on

Rec. Docs. 25-2 and 25-3 contain affidavits of Loretta G. Mince, Defendant’s
registered agent and counsel, and Carla C. Mayer, providing (1) that Ms. Mince
was out of the state on January 10, 2017 and was never personally served in
this matter as the registered agent for Defendant and (2) Ms. Mayer was
personally served with a summons and complaint in this matter on January 10,
2017, even though she is not the registered agent for Defendant.
1

6

it, but Lori’s not here.” Another woman, later identified in the
video

by

the

receptionist

as

Carla

Mayer

(Loretta

Mince’s

secretary), enters the frame and informs the process server that
she can make a copy of the documents and sign them. At no point
does Ms. Mayer state that she is Defendant’s registered agent for
service of process.
In O’Meara v. New Orleans Legal Assistance Corporation, the
plaintiff was supposed to serve an individual and a corporation.
No. 90-4893, 1991 WL 110401, at *1 (E.D. La. June 10, 1991). The
individual happened to also be the registered agent for service of
process for the corporation. Id. Approximately sixty days after
the complaint was filed, the court issued a minute entry informing
the parties of the consequences of failing to properly serve the
defendants. Id. at 1. On the 120th day after the complaint was
filed, the plaintiff attempted service. Id. Specifically, the
process server went to the corporation’s offices in an attempt to
serve the individual, who was at lunch at the time. Id. at 2.
Instead, the receptionist paged another employee, who accepted
service. Id. The plaintiff argued that the employee “represented
herself as empowered to receive service, and therefore, that
service on [her] was sufficient.” Id. at 1. The court granted the
motion to dismiss, noting that the “plaintiff waited until the
final day allowable for service, and when [the individual] was
unavailable, served a person who did not have power to receive
7

service on behalf of [the individual] or [the corporation].” Id.
at 5.
According to the Federal Rules and precedent, service upon
Ms. Mayer was not sufficient. Quite simply, she is not Defendant’s
registered agent for service of process.
Because Defendant was not properly served within Rule 4(m)’s
ninety-day deadline, which expired on January 16, 2017, Defendant
argues that Plaintiff’s claims should be dismissed for failure to
serve. Rec. Doc. 25-1 at 5. Further, Defendant urges this Court to
refrain from giving Plaintiff additional time, because Plaintiff’s
complaint fails to state a valid claim. Id. at 6. Specifically,
under

Louisiana

law,

falsity

is

an

essential

element

of

a

defamation claim and must be proven by the plaintiff. Id. (citing
Navis v. Times-Picayune Pub. Corp., 92-2656 (La. App. 4 Cir.
1/27/94); 631 So. 2d 1338, 1339 (“In order to prevail in a case of
defamation under the Louisiana law, the plaintiff must prove five
elements: defamatory words; publication; falsity; malice, actual
or implied, and resultant injury”) (citations omitted); Hines v.
Ark. La. Gas Co., 613 So. 2d 646, 651 (La. App. 2 Cir.), writ
denied, 617 So. 2d 932 (La. 1993) (same) (citations omitted);
Easter Seal Soc. for Crippled Children & Adults of La., Inc. v.
Playboy Enters., Inc., 530 So. 2d 643, 649 (La. App. 4 Cir.), writ
denied sub nom., 532 So. 2d 1390 (La. 1988) (same) (citations
omitted); Cavalier v. Houma Courier Newspaper Corp., 472 So. 2d
8

274, 276 (La. App. 1 Cir. 1985) (“The plaintiff in a defamation
case must bear the considerable burden of showing that he can
produce sufficient evidence at trial to prove with convincing
clarity that the defendant made false statements in the news
article and that he either knew the statements were false or that
he

recklessly

disregarded

the

question

of

their

falsity”)

(citations omitted)). According to Defendant, Plaintiff conceded
in her complaint that she was arrested and, because Defendant
merely reported that Plaintiff was arrested for allegedly issuing
worthless checks, Plaintiff will not be able to prove falsity. Id.
at 6.
Plaintiff only briefly responds to this argument, repeating
that the article published by Defendant failed to note that she
was “nolle prosse[d].” Rec. Doc. 26 at 1.
In Atchison v. U.S. District Courts, the pro se plaintiff
attempted to serve the defendants two hundred and nineteen days
after she filed her complaint, long after the expiration of the
120-day clock previously provided for in Rule 4(m). 190 F. Supp.
3d 78, 90-91 (D.D.C. 2016).

She claimed that she repeatedly

contacted the court in various attempts to issue the summonses.
Id. at 91. Nonetheless, the court found that the pro se plaintiff’s
attempts to serve process were untimely. Id. at 84. However,
because the plaintiff was not previously warned of the consequences
of failing to perfect service “and because it is clear that all
9

the [d]efendants appearing received actual notice,” the court
elected not to dismiss the plaintiff’s complaint for the service
defect.

Id.

at

92.

Instead,

the

court

noted

that

it

“would

typically grant an extension of time for [the plaintiff] to attempt
to perfect service.” Id. Significantly, the defendants moved to
dismiss the claims under both Rule 12(b)(5) for insufficient
service and 12(b)(6) for failure to state a claim. Id. at 86. Thus,
after analyzing the parties’ arguments under 12(b)(6), the court
ultimately found that “an extension would be futile here because
. . . the Complaint fails to state a claim upon which relief can
be granted.” Id. at 84. Not only was the court fully briefed on
the 12(b)(6) issue, a court in the district previously considered
and dismissed the plaintiff’s claims. Id. at 94. Accordingly, the
court granted the defendants’ motions to dismiss pursuant to Rule
12(b)(6). Id.
Unlike the court in Atchison, this court was not fully briefed
on whether or not Plaintiff’s complaint failed to state a claim
upon which relief could be granted. Defendant did not file a
separate motion to dismiss under 12(b)(6). Rather, Defendant asks
this Court to dismiss under 12(b)(5), instead of giving Plaintiff
additional time to perfect service, based solely on Defendant’s
two-paragraph argument that additional time would be futile.
In Smith v. Womans Hospital, the plaintiff attempted to serve
a corporation by mailing a copy of the summons and complaint via
10

FedEx to the entity’s corporate predecessor. No. 14-500, 2015 WL
2357127, at *2 (M.D. La. May 15, 2015). The delivery was left with
a receptionist, who the plaintiff argued was an agent of the
corporation, and a corporate employee signed for the delivery. Id.
The court recognized that a registered agent is a person with
“actual authorization from the entity sought to b[e] served” and
that “apparent authority is insufficient.” Id. at 3 (quoting Fyfee
v. Bumbo Ltd., No. 09-0301, 2009 WL 2996885, at *1 (S.D. Tex. Sept.
16, 2009); O’Meara, 1991 WL 110401, at *3) (internal quotation
marks removed). The defendant argued that additional time should
not

be

provided,

because

the

plaintiff

was

previously

given

specific information regarding how to effect proper service. Id.
at 2. Ultimately, however, the court denied the motion to dismiss
and afforded the plaintiff an additional fourteen days within which
to perfect service. Id. at 4. See also Richard v. City of Port
Barre, No. 14-2427, 2015 WL 566896, at *1 (W.D. La. Jan. 20, 2015)
(denying a motion to dismiss for insufficient service of process
and affording the plaintiffs an additional twenty-one days within
which to perfect service).
Here, Plaintiff attempted to serve Defendant on two separate
occasions, both within the ninety-day deadline provided by Rule 4.
After this Court’s earlier Order, informing Plaintiff that service
by

mail

was

insufficient,

she

attempted

to

personally

serve

Defendant’s registered agent for service of process. The agent was
11

unavailable

and

the

process

server

incorrectly

assumed

that

service upon the agent’s secretary would be sufficient. As we noted
in our earlier Order, Plaintiff has clearly evidenced an intent to
actively pursue her claims. Rec. Doc. 20 at 5 (citing W.J. Enters.,
Inc. of Jefferson v. Granwood Flooring, Ltd., No. 16-9492, 2016 WL
3746225, at *1 (E.D. La. July 13, 2016); Price v. Hous. Auth. of
New Orleans, No. 09-4257, 2010 WL 2836103, at *2 (E.D. La. July
16, 2010) (giving the plaintiff an additional twenty days to effect
service after noting that the plaintiff made multiple attempts to
effect

service

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”). However, Plaintiff’s ongoing unsuccessful attempts
may not warrant additional extensions after another failure to
comply with federal and local rules.
IV.

CONCLUSION

For the reasons outlined above,
IT IS ORDERED that Defendant’s motion to dismiss (Rec. Doc.
25) is DENIED WITHOUT PREJUDICE to re-urge;
IT IS FURTHER ORDERED that Plaintiff either obtain a waiver
of

service

from

Defendant

or,

failing

that,

properly

serve

Defendant (and any other Defendant who has not yet been properly
served) and file proof of service within twenty-one (21) days from
the date of this Order. Again, Plaintiff is warned that it is her
12

responsibility to properly serve Defendants (Fed. R. Civ. P.
4(c)(1)) and that her failure to timely effect proper service
within the twenty-one day deadline will result in dismissal of all
claims asserted against any Defendant who has not been properly
served. As we reminded Plaintiff in our earlier Order, pro se
parties, like represented parties, must comply with court rules
and orders. See, e.g. Fed. R. Civ. P. 41(b); Price v. McGlathery,
792 F.2d 472, 474 (5th Cir. 1986); Beard v. Experian Info. Sols.
Inc., 214 F. App’x 459, 462 (5th Cir. 2007).
New Orleans, Louisiana, this 9th day of March, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

13