Matherne v. Louisiana State et al

Filing 59

ORDER granting 22 Motion to Dismiss for Insufficient Service. The motion to Dismiss is granted as set forth in document. Heath A. Matherne's claims against Defendant State of Louisiana through the Department of Children and Family Services is dismissed with prejudice. Signed by Judge Greg Gerard Guidry on 1/30/2020. (ko)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION

HEATH A. MATHERNE

NO: 18-3396

VERSUS

SECTION: T (3)

STATE OF LOUISIANA, THROUGH
THE DEPARTMENT OF CHILDREN
AND FAMILY SERVICES, GENECIA
HILL, AND LAFOURCHE PARISH
SCHOOL BOARD
ORDER

Before the Court is a Motion to Dismiss for Insufficient Service1 filed by Defendant State
of Louisiana through the Department of Children and Family Services (“DCFS”). For the
following reasons, the Motion to Dismiss for Insufficient Service2 is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
This matter arises out of Plaintiff’s claim for monetary damages under 42 U.S.C. § 1983
against the State of Louisiana through the Department of Children and Family Services (“DCFS”).
Plaintiff alleges DCFS violated his constitutional rights by taking Plaintiff’s minor daughter from
school due to allegations of child abuse without first notifying Plaintiff.3 DCFS moves to dismiss
Plaintiff’s complaint for insufficient service on DCFS.
LAW AND ANALYSIS
Federal Rule of Civil Procedure 12(b)(5) permits a defendant to move to dismiss a
complaint for improper service of process. “A 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.”4 Federal

1

R. Doc. 22.
R. Doc. 22.
3
R. Doc. 1-2.
4
5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1353 (3d ed.).
2

1

Rules of Civil Procedure Rule 4(j)(2) provides that a state, a municipal corporation, or any other
state-created governmental organization that is subject to suit must be served by: “(A) delivering
a copy of the summons and of the complaint to its chief executive officer; or (B) 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.” La. R.S. § 13:5107(A)(1) governs service on a state agency, and 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.
In this case, Plaintiff requested and effected service on James LeBlanc, the Secretary of the
Department of Public Safety and Corrections (“DPSC”).5 LeBlanc is the head of DPSC, not the
chief executive officer of DCFS. 6 Therefore, Plaintiff’s service was insufficient under Federal
Rule 4(j)(2)(A). Additionally, Plaintiff has not properly served any proper person pursuant to La.
R.S. § 13:5107. Thus, Plaintiff has failed to prove service of process upon Defendant State of
Louisiana through the Department of Children and Family Services.

CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that Motion to Dismiss for
Insufficient Service 7 is GRANTED. Heath A. Matherne’s claims against Defendant State of

5

R. Doc. 1-2, p.5.
R. Doc. 22-1, p.2.
7
R. Doc. 22.
6

2

Louisiana through the Department of Children and Family Services are DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana, on this ____ day of January, 2020.

GREG GERARD GUIDRY
UNITED STATES DISTRICT JUDGE

3