Lauderdale et al v. Caballero et al

Filing 41

ORDER AND REASONS GRANTING 28 MOTION to Dismiss for Lack of Jurisdiction Pursuant to F.R.Civ.P. 12(b)(4) and F.R.Civ.P. 12(b)(5). The plaintiffs' claims in the amended complaint against these Caballero and Atlanta Meat Company are hereby dismissed without prejudice. Signed by Judge Martin L.C. Feldman on 6/13/2018.(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SHELBY LAUDERDALE, ET AL.

CIVIL ACTION

v.

NO. 17-4152

JOSE CABALLERO, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is a motion to dismiss pursuant to Rule
12(b)(4) and 12(b)(5) by Jose Caballero and Atlanta Meat Company.
For the reasons that follow, the motion is GRANTED.
Background
This litigation arises out of an accident in which a Volvo
sleeper box truck allegedly struck a Hyundai Sonata, injuring the
Sonata’s driver and three passengers.
On May 2, 2016, Shelby Lauderdale was driving his 2005 Hyundai
Sonata westbound on Highway 90 in the center lane with Madonna
Rogers,

Katrice

passengers.

Drawsand,

and

Derrick

Drawsand

riding

as

Jose Caballero was driving a 2016 Volvo sleeper box

truck westbound on I-10 in the lane adjacent to Lauderdale’s
Sonata.

When Mr. Caballero tried to switch lanes, the truck he
1

was driving struck Lauderdale’s car. As a result of the collision,
Lauderdale and each of his passengers alleges that they suffered
injuries: Lauderdale alleges that he suffered cervical strains and
aggravation of pre-existing herniated lumbar discs; Rogers alleges
that she suffered cervical strains and a herniated lumbar disc;
Katrice Drawsand alleges that she sustained a lumber strain and a
cervical strain; and Derrick Drawsand alleges that he suffered
cervical strains, lumbar strains, and shoulder strain.
Alleging that Mr. Caballero’s negligence in operating the
truck caused these injuries to Lauderdale and his passengers,
Lauderdale, Rogers, and the Drawsands sued Caballero, along with
his

employer,

Atlanta

Company in state court.

Meat

Company,

and

Westfield

Insurance

On April 28, 2017, Westfield Insurance

Company removed the lawsuit to this Court, invoking the Court’s
diversity jurisdiction.

Shortly thereafter, Westfield answered

the complaint.
Nearly five months after the lawsuit was filed, neither Jose
Caballero nor Atlanta Meat Company had been served.

On August 31,

2017, the Court ordered that, by October 2, 2107, the plaintiffs
must file the return of service that has been effected on the other
defendants, Jose Caballero and Atlanta Meat Company; the Court
admonished the plaintiffs that failure to do so would result in
2

the dismissal of the unserved defendants.

The next day, Dallas

Maughon, Inc., d/b/a Atlanta Meat Company, moved to dismiss the
plaintiff’s claims against him under Rule 12(b)(4) and (b)(5),
arguing that the citation mailed to Atlanta Meat Company was
defective in that it was directed to the wrong party; the motion
was set for hearing on September 27, 2017.
responded to the motion.

The plaintiffs never

On September 26, 2017, the Court granted

Atlanta Meat Company’s motion to dismiss for insufficient process.
And on October 4, 2017, because the plaintiffs never filed into
the record the return of service of process (for either Atlanta
Meat Company or Jose Caballero), the Court dismissed without
prejudice

(for

failure

to

prosecute)

the

plaintiffs’

claims

against Jose Caballero. The plaintiffs never challenged the orders
dismissing Caballero or Atlanta Meat Company and never filed into
the record any service returns.
On November 30, 2017, the plaintiffs moved to remand their
lawsuit to state court. Westfield opposed the motion. On December
21, 2017, the Court denied the plaintiff’s motion to remand.1
After a scheduling conference held with counsel for plaintiffs and
counsel

for

Westfield,

the

Court

issued

a

scheduling

order

The Court noted in its Order and Reasons that the plaintiffs’
claims against Caballero and Atlanta Meat Company had previously
been dismissed.
3
1

selecting an August 27, 2018 trial date. When the plaintiffs filed
an unopposed2 motion to amend their complaint, the motion was
granted,3 and summons issued as to Atlanta Meat Company and Jose
Caballero on February 15, 2018.

But, to this date, no return of

service of process has been filed into the record as to these readded defendants.
move

to

Jose Caballero and Atlanta Meat Company now

dismiss

the

plaintiffs’

amended

complaint

due

to

insufficient process and insufficient service of process.
I.
"Service of process, under longstanding tradition in our
system of justice, is fundamental to any procedural imposition on
a named defendant."

Murphy Bros., Inc. Michetti Pipe Stringing,

Inc., 526 U.S. 344, 350 (1999).

“In the absence of service of

process (or waiver of service by the defendant), a court ordinarily
may

not

exercise

defendant.”

power

over

a

party

the

complaint

names

as

Id. (“[O]ne becomes a party officially, and is

required to take action in that capacity, only upon service of a
summons....”)(citation omitted); see also Aetna Bus. Credit v.

According to counsel for defendants, the plaintiffs did not seek
Westfield’s consent for the motion to amend, but Westfield did not
object
to
the
plaintiffs’
misrepresentation
because
the
plaintiffs’ claims against the other defendants had been dismissed
without prejudice.
3 The motion to amend the complaint was filed within the scheduling
order’s deadline for amending pleadings.
4
2

Universal Decor, 635 F.2d 434, 435 (5th Cir. 1981)("In the absence
of valid service of process, proceedings against a party are
void.").
Federal Rule of Civil Procedure 4(c) governs service of
process

and

obliges

the

plaintiff

to

serve

the

summons

and

complaint:
A summons must be served with a copy of the complaint.
The plaintiff is responsible for having the summons and
complaint served within the time allowed by Rule 4(m)
and must furnish the necessary copies to the person who
makes service.

Rule 4(m) provides the time limit for service:
If 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.
But if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.
(emphasis added).
Rule 12(b)(4) of the Federal Rules of Civil Procedure allows
a defendant to attack the form of the process, rather than the
method by which it is served.

By contrast, Federal Rule of Civil

Procedure 12(b)(5) allows a party to advance a defense based on
insufficient service of process.

Fed. R. Civ. P. 12(b)(5); 5B

Charles Alan Right & Arthur R. Miller, FEDERAL PRACTICE AND
5

PROCEDURE, § 1353 (3d ed. 2013)(“Rule 12(b)(5) motion is the proper
vehicle for challenging the mode of delivery or the lack of
delivery of the summons and complaint.”). Dismissal is appropriate
under Rule 12(b)(5) if, for example, service of process is not
accomplished

in

a

timely

manner

or

was

not

served

in

the

appropriate manner.
“When service of process is challenged, the serving party
bears the burden of proving its validity or good cause for failure
to effect timely service.“

Systems Signs Supplies v. U.S. Dep’t

of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990)(citations omitted).
District courts exercise “broad discretion in determining whether
to dismiss an action for ineffective service of process.”

George

v. U.S. Dep’t of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986).

When

a defendant challenges whether the plaintiff has complied with the
time limit for service of process, the Court must first determine
if the plaintiff can show good cause; if so, then the Court must
extend the 90 day period for service.
F.3d 20, 21 (5th Cir. 1996).

See Thompson v. Brown, 91

If good cause is not shown, the Court

may decide to dismiss the case without prejudice or extend the
deadline for service.

Id.

To show good cause within the meaning

of Rule 4(m), “some showing of good faith and a reasonable basis
for noncompliance within the time specified is necessary.”

See

McDonald v. United States, 898 F.2d 466, 467 (5th Cir. 1990).
6

Notably, “[a]ctions falling into the category of inadvertence,
mistake or ignorance of counsel are not excusable neglect and do
not establish good cause for extending the...period for service.”
Traina v. United States, 911 F.2d 1155, 1157 (5th Cir. 1990)(citing
McDonald, 898 F.2d 466). If the plaintiff fails to show good cause
for its failure to effect timely service, dismissal is warranted.
See McDonald, 898 F.2d at 468; Pugh v. Bank of Am., No. 16-14766,
2017 WL 1427015, at *3 (E.D. La. Apr. 21, 2017)(Milazzo, J.);
Hunter v. Goodwill Indus., No. 05-2698, 2006 WL 1968860, at *2
(E.D. La. July 13, 2006)(Vance, J.).
II.
Jose Caballero and Atlanta Meat Company move to dismiss the
plaintiffs’ amended complaint on the ground that the plaintiffs
have not even attempted service on them, notwithstanding that more
than 90 days have passed since the plaintiffs amended their
complaint and summons issued.

The defendants contend that the

plaintiffs cannot show good faith or offer a reasonable basis for
failing to timely serve them, given that: (a) more than eight
months passed since the Court directed the plaintiffs to serve the
defendants or face dismissal; (b) more than 90 days have passed
since plaintiffs filed their amended complaint; (c) at no time did
plaintiffs attempt to effect service; (d) plaintiffs have not
requested service information on Caballero or Atlanta Meat Company
7

from Westfield, nor have they requested a waiver of service from
their counsel, nor have they requested an extension of time to
effect service. In an untimely response to the defendants’ motion,
plaintiffs’

counsel

counters

that

service

of

the

original

complaint was effected on Caballero and Atlanta Meat Market back
in September 2017, but that due to an error by counsel’s secretary,
the return of service was filed in state court instead of this
Court.

The defendants reply that the plaintiffs’ untimely excuses

do not warrant an extension of time to serve the defendants.

The

Court agrees.
The plaintiffs fail to show good cause for their failure to
serve the amended complaint on Caballero and Atlanta Meat Company.
Indeed, plaintiffs’ counsel admits that the failure to serve these
defendants was due to mistake and neglect.4

The plaintiffs offer

what they purport to be proof of service of the original petition
for damages (which has since been dismissed as to the moving
defendants and amended by the plaintiffs’ own motion) and suggest
that plaintiffs’ defective affidavits of service in state court
(of the original petition more than eight months ago) constitute
good cause for their failure to prove service in the last eight

It is regrettable that plaintiffs’ counsel fastens blame on his
secretary and, on some level, this Court for lapses attributable
entirely to him.
8

4

months since their “mistake” was made.

Even if the plaintiffs

submitted proof of service of the original petition (which they
have not), the Court finds counsel’s conduct (in failing to even
attempt to serve the defendants with the amended complaint) and
assumptions (that it is not necessary to effect service of an
amended complaint that names defendants previously dismissed) at
best unreasonable and at worst ignorant.

When the original

petition was pending, the plaintiffs were ordered to file proof of
service into this Court’s record and never did so.

Even if

plaintiffs’ counsel is to be believed that he thought his secretary
did so, in no less than three separate orders, plaintiffs’ counsel
was notified that the plaintiffs’ claims against Caballero and
Atlanta Meat Company had been dismissed.

And plaintiffs’ counsel

certainly should have known that Caballero and Atlanta Meat Company
were not parties to the lawsuit when they did not participate in
the scheduling conference that was held, when the scheduling order
was issued, when neither Caballero nor Atlanta Meat Company were
participating in this litigation, and when plaintiffs’ counsel
himself filed a motion to amend the complaint to re-add them as
defendants.

When that motion to amend was granted and summons

issued, plaintiffs’ counsel inexplicably failed even to attempt to
serve Caballero and Atlanta Meat Company.

9

The plaintiffs bear the burden of establishing valid service
on the defendants; they have failed to do so.
failed

to

show

good

cause

excusing

this

They have likewise

failure.

At

best,

plaintiffs’ counsel’s conduct falls into the category of mistake
or ignorance, which falls short of excusable neglect.

See Traina

v. United States, 911 F.2d at 1157 (citing McDonald, 898 F.2d 466).
Plaintiffs’

counsel

limply

offers:

“Clearly,

[counsel]

was

mistaken in his belief that the amended complaint was for house
keeping

purposes

service.”

This

and

that

explanation

prior

service

betrays

constituted

counsel’s

procedure and, more concerning, due process.

actual

ignorance

of

See Omni Capital

Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)(the
Court lacks personal jurisdiction over a defendant unless the
defendant has been served with process in accordance with Federal
Rule of Civil Procedure 4.).

Plaintiffs’ counsel’s ignorance and

neglect of his service responsibilities in this case are not
excusable.

Nor is the Court persuaded to grant an additional 30

days to serve the summons and complaint on Caballero and Atlanta
Meat Company.5

The plaintiffs have had ample time and opportunity

to make these defendants parties to this lawsuit.

Yet, with one

month remaining before the expiration of the discovery deadline

A request embedded as an afterthought in the plaintiffs’ untimely
opposition papers.
10
5

and only two months until the scheduled trial date, the plaintiffs
suggest that no party will be prejudiced by late service and that
no deadlines will need to be extended if these two defendants are
finally

added

to

the

lawsuit.6

An

unrealistic

suggestion.

Plaintiffs’ counsel’s sustained neglect of this case is not grounds
for extending the time for serving Caballero and Atlanta Meat
Company.7
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the motion to dismiss by Caballero and Atlanta Meat Company is
hereby GRANTED.
against

these

The plaintiffs’ claims in the amended complaint
Caballero

and

Atlanta

Meat

Company

are

hereby

dismissed without prejudice.
New Orleans, Louisiana, June 13, 2018
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

Adding to the baffling explanations for neglect of this case,
plaintiffs’ counsel offers that no party will be prejudiced by the
late additions of Caballero and Atlanta Meat Company because no
depositions have taken place. The Court can only note in response
to this revelation that the deadline for discovery will lapse in
a month.
7 If the Court indulged a request for additional time to serve
these defendants on the ground that no discovery has happened in
this case anyway, it would only enable neglect and unprofessional
conduct.
11
6