Greene v. 1st Lake Properties, Inc. et al
Filing
17
ORDER AND REASONS denying 11 Motion to Dismiss Case; FURTHER ORDERED that the request to quash service is GRANTED. Greene shall file proof of proper service upon 1st Lake Properties, Inc. and Brenda Huggett into the record no later than 11/21/ 2018. Failure to do so will result in the dismissal of Greene's complaint. Signed by Judge Lance M Africk on 10/30/2018. (blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BYRON GREENE
CIVIL ACTION
VERSUS
No. 18-4927
1ST LAKE PROPERTIES, INC., ET AL.
SECTION I
ORDER & REASONS
Before the Court is defendants 1st Lake Properties, Inc. (“1st Lake”) and
Brenda Huggett’s (“Huggett”) motion1 to dismiss pro se plaintiff Byron Greene’s
(“Greene”) complaint or, alternatively, to quash service pursuant to Federal Rule of
Civil Procedure 12(b)(5). For the following reasons, the motion is granted in part and
denied in part.
I.
On May 11, 2018, Greene filed this lawsuit against 1st Lake and Huggett
(collectively, the “defendants”). In his complaint, Greene alleges that the defendants
violated several of his constitutional rights during his tenancy at an apartment
community in Kenner, Louisiana known as Sugar Mill West Apartments. 2 1st Lake
R. Doc. No. 11.
See generally R. Doc. No. 1; see also R. Doc. No. 11-1, at 1. “Sugar Mill Apartment”
was originally a defendant in this case. R. Doc. No. 1, at 1. The present motion
requests, in part, that the Court dismiss Greene’s claims against Sugar Mill
Apartment, but the attorneys representing 1st Lake and Huggett do not represent
Sugar Mill Apartment and cannot request relief on its behalf. Furthermore, the
request is moot because, on October 23, 2018, the Court dismissed Sugar Mill
Apartment from this case. R. Doc. No. 15, at 1.
1
2
is a Louisiana corporation that operates Sugar Mill West Apartments, and Huggett
is the Sugar Mill West Apartments manager. 3
On May 16, 2018, the United States Magistrate Judge granted Greene’s motion
for leave to proceed in forma pauperis. 4 Accordingly, the Clerk of Court for the
Eastern District of Louisiana issued summonses for each defendant, all of which were
returned executed by a deputy United States Marshal on August 17, 2018. See
Lindsey v. United States R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996) (“Once the
in forma pauperis plaintiff has taken reasonable steps to identity the defendant(s),
‘Rule 4(c)(2) [now 4(c)(3)] and 28 U.S.C. § 1915(c) stand for the proposition that . . .
the court is obligated to issue plaintiff’s process to a United States [m]arshal who
must in turn effectuate service upon the defendants . . . .’”) (emphasis omitted). 5
II.
Federal Rule of Civil Procedure 12(b)(5) permits a court to dismiss a complaint
based on insufficient service of process. “In the absence of valid service of process,
proceedings against a party are void.” Aetna Bus. Credit, Inc. v. Universal Decor &
Interior Design, 635 F.2d 434, 435 (5th Cir. 1981). “[O]nce the validity of service of
process has been contested, the plaintiff bears the burden of establishing its validity.”
Carimi v. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992).
R. Doc. No. 11-1, at 2; R. Doc. No. 11-2, at 1. The caption of Greene’s complaint states
that Huggett is a defendant in both her individual and official capacities, R. Doc. No.
1, at 1, but the complaint never explains the distinction. In fact, Greene’s complaint
does not include any specific facts about Huggett other than the allegation that she
discriminated against him. See id. at 4, 5, 6.
4 R. Doc. No. 3.
5 R. Doc. Nos. 3, 5, 6, 7.
3
2
Federal Rule of Civil Procedure 4(m) gives plaintiffs 90 days to effect service
on a defendant. If a defendant is not properly served within 90 days of the filing of
the complaint, the court must dismiss the action or order that service be made within
a specified time. Fed. R. Civ. P. 4(m); see also Price v. Hous. Auth. of New Orleans,
No. 09-4257, 2010 WL 3802553, at *2 (E.D. La. Sept. 10, 2010) (Vance, J.). However,
the rule also provides that, if the plaintiff shows good cause for his failure, the court
must extend the deadline for effecting service “for an appropriate period.” Fed. R. Civ.
P. 4(m). The plaintiff also bears the burden of establishing “good cause for failure to
effect timely service.” Systems Signs Supplies v. United States Dep’t of Justice, 903
F.2d 1011, 1013 (5th Cir. 1990).
“[S]ervice of process by pro se, [in forma pauperis] litigants is governed by
‘[s]pecial,’ or more lenient, rules.” Holly v. Metro. Transit Auth., 213 F. App’x 343, 344
(5th Cir. 2007) (italics added) (quoting Lindsey, 101 F.3d at 446). 6 “Nonetheless, when
the failure of effective service may be ascribed to the plaintiff’s ‘dilatoriness or fault’
or ‘inaction,’ the case may be properly dismissed.” Id. at 344–45 (quoting Rochon v.
Dawson, 828 F.2d 1107, 1109–10 (5th Cir. 1987)).
Rule 4(e) governs service of process on an individual:
Unless federal law provides otherwise, an individual—other than a
minor, an incompetent person, or a person whose waiver has been filed—
may be served in a judicial district of the United States by:
(1)
following state law for serving a summons in an action
brought in courts of general jurisdiction in the state
In Lindsey, the Fifth Circuit explained the “special” rules that govern in forma
pauperis litigants. Lindsey, 101 F.3d at 446 (citing 28 U.S.C. § 1915(c), now § 1915(d),
and Fed. R. Civ. P. 4(c)(2), now Rule 4(c)(3)).
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where the district court is located or where service is
made; or
(2)
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 there; or
(C) delivering a copy of each to an agent authorized
by appointment or by law to receive service of
process.
Fed. R. Civ. P. 4(e).
Rule 4(h) governs service of process on a corporate entity. A corporation may
be served either in accordance with Rule 4(e)(1), described above, or “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). 7
The summonses that were returned executed show that Greene informed the
United States Marshals Service that Huggett could be served via “the manager” at
“Sugarmill West Office.” 8 As to 1st Lake, Greene instructed that a copy of the
summons and the complaint could be given to “any person ‘authorize[d] to accept.’” 9
In the returned summonses, the deputy United States Marshal who effectuated
“[I]f the agent is one authorized by statute and the statute so requires,” Rule 4 also
requires that a copy of the summons and complaint be mailed to each of the
defendants. Fed. R. Civ. P. 4(h)(1)(B).
8 R. Doc. No. 5.
9 R. Doc. No. 6.
7
4
service indicated that Jean Czernia (“Czernia”), an administrative assistant, received
service of process for both defendants. 10 1st Lake and Huggett now move the Court
to dismiss Greene’s complaint for insufficient service of process or, alternatively, to
quash service.
III.
In support of their motion to dismiss, 1st Lake and Huggett submitted a
declaration from 1st Lake’s director of operations, Anthony Barattini (“Barattini”). 11
According to Barattini, 1st Lake employs Huggett. 12 Pursuant to Rule 4(m), Greene
was required to serve the defendants by August 9, 2018.
1st Lake Properties, Inc.
The Court concludes that 1st Lake has not been properly served. Pursuant to
Rule 4(h), as it applies to this case, 1st Lake can be served by delivering a copy of the
summons and complaint to “an officer, a managing or general agent, or any other
agent authorized by appointment or by law,” Fed. R. Civ. P. 4(h)(1)(B), or by
complying with Louisiana’s service of process laws, Fed. R. Civ. P. 4(h)(1)(A). The
Louisiana Code of Civil Procedure provides that a corporation must be served “by
See R. Doc. Nos. 5, 6. It is unclear from the record whether Czernia is an
administrative assistant for Sugar Mills West Apartments, 1st Lake, or some other
individual or entity.
11 R. Doc. No. 11-2. The Court may consider declarations and affidavits when
resolving a Rule 12(b)(5) challenge without converting the motion to dismiss into a
motion for summary judgment. See Thomas v. New Leaders for New Schs., 278 F.R.D.
347, 351 (E.D. La. Dec. 19, 2011) (Africk, J.); see also Quinn v. Miller, 470 F. App’x
321, 323 (5th Cir. 2012); Dumas v. Decker, 556 F. App’x 514, 515 (7th Cir. 2014);
Vazquez-Robles v. CommoLoCo, Inc., 757 F.3d 1, 4 (5th Cir. 2014); Hearst v. West, 31
F. App’x 366, 369 (9th Cir. 2002).
12 R. Doc. No. 11-2, at 1.
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personal service on any one of its agents for service of process.” La. Code Civ. Proc.
art. 1261(A). 13
According to Barattini’s declaration, 1st Lake’s agents for service of process are
William Henry Shane, Jr. and James P. Favrot, neither of whom have been personally
served with a copy of the summons and complaint. 14 Thus, Greene has not served 1st
Lake in accordance with Rule 4(h)(1)(A). Instead, the deputy United States Marshal
gave a copy of the summons and complaint to Czernia based on Greene’s
instructions. 15
Rule 4(h)(1)(B) has, therefore, also not been satisfied. Czernia is not a 1st Lake
registered agent for service of process, nor does Greene contend that she is “an officer,
a managing or general agent, or any other agent authorized by appointment or by
law.” See Peter-Takang v. Dep’t of Children & Family Servs., No. 14-1078, 2015 WL
4097157, at *5 (E.D. La. July 5, 2015) (Brown, J.). He has, therefore, not met his
burden of showing that 1st Lake was validly served. 16
In limited circumstances, a corporation may be served by personally serving the
Louisiana Secretary of State or his designee pursuant to Louisiana Code of Civil
Procedure article 1262. However, neither party argues that article 1262 applies in
this case.
14 R. Doc. No. 11-2, at 2.
15 Greene’s response to the motion to dismiss states only that “1st Lake Properties et
al[ ] was served by U.S. Marshal Office on August 3, 2018” and that the defendants
have not answered the complaint within the period required by the federal rules of
civil procedure. R. Doc. No. 14, at 1.
16 With respect to who qualifies as a “managing” or “general” agent for a corporation,
another section of this Court has explained,
13
[i]n Lone Star Package Car Co. v. Baltimore & O. R. Co., 212 F.2d 147,
152 (5th Cir. 1954), the Court held that “[i]f a corporation’s business is
so substantial as to render the corporation amendable to suit in the
6
Brenda Huggett
The Court also concludes that Huggett has not been properly served. Rule 4(e)
permits Greene to serve Huggett in one of four ways: by personal service, domiciliary
service, serving an authorized agent authorized, or in compliance with Louisiana law.
See Fed. R. Civ. P. 4(e).
Huggett states that she has not been personally served, and Greene does not
contest her contention. Rather, the deputy United States Marshal gave a copy of the
summons and complaint to Czernia at the Sugar Mill West Apartments complex. To
effect domiciliary service pursuant to the federal rules, the deputy United States
marshal would have had to leave a copy of the summons and the complaint at
Huggett’s “individual dwelling or usual place of abode.” Fed. R. Civ. P. 4(e)(2)(B). In
state, its principal agent in charge of activities within that state meets
the test of a ‘managing agent.’” Further, the Fifth Circuit recognized in
Jim Fox Enterprises, Inc. v. Air France, 644 F.2d 63, 64 (5th Cir. 1981),
that “the courts have established the proposition that one invested with
general powers involving the exercise of independent judgment and
discretion is such an agent.” . . . [I]n an unpublished opinion, the Court
found that “the individual sought to be served must have actually
authorized another to accept service of process on the would-be
principal’s behalf . . . .” Lisson v. ING Groep N.V., 262 F[.] App[’]x. 567,
569 (5th Cir. 2007) (unpublished). The Lisson Court held that service on
an unauthorized employee is insufficient “even if such service [is]
sufficient to apprise [the Corporation] of the action pending against it.”
Duncan v. City of Hammond, No. 08-5043, 2009 WL 10680059, at *1 (E.D. La. Mar.
31, 2009) (Vance, J.). In 2014 the Fifth Circuit held that service was properly effected
on a corporation-defendant, noting that the person who had been served was one of
the corporation’s owners and its manager. Gatte v. Dohm, 574 F. App’x 327, 332 (5th
Cir. 2014). Regardless, as explained herein, Greene does not allege that Czernia was
an officer or a managing or general agent of 1st Lake, and there is nothing in the
record demonstrating that Czernia meets any of the criteria described in the various
Fifth Circuit cases summarized in Duncan.
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his declaration, Barattini attests that, although Huggett works at Sugar Mill West
Apartments, she does not reside there. 17 Consequently, domiciliary service has not
been properly effected under Rule 4. Finally, Greene does not assert that Czernia is
authorized to receive process as Huggett’s agent. Thus, for Huggett to have been
properly served, she would have had to be served in accordance with Louisiana law.
Under Louisiana law, “[s]ervice of . . . process may be either personal or
domiciliary.” La. Code Civ. P. art. 1231. Article 1232 provides that “[p]ersonal service
is made when a proper officer tenders the citation or other process to the person to be
served.” Pursuant to article 1234, “[d]omiciliary service is made when a proper officer
leaves the citation or other process at the dwelling house or usual place of abode of
the person to be served with a person of suitable age and discretion residing in the
domiciliary establishment.” As explained herein, Greene has not effected personal or
domiciliary service on Huggett, and Louisiana law does not authorize serving an
individual at her workplace. See Jason v. Nugent, No. 04-1722, 2005 WL 53301, at *2
(E.D. La. Jan. 7, 2005) (Vance, J.). Therefore, Greene has not validly served Huggett.
IV.
Despite Greene’s failure to serve 1st Lake and Huggett, the Court will not
dismiss his complaint. “Where there is ‘a reasonable prospect that [the] plaintiff
ultimately will be able to serve [the] defendant properly,’ the proper course of action
is to quash service and permit a plaintiff another opportunity to complete service
rather than dismiss the case.” Thomas v. New Leaders for New Schs., 278 F.R.D. 347,
17
R. Doc. No. 11-2, at 1, 2.
8
352 (E.D. La. Dec. 19, 2011) (Africk, J.) (quoting Charles Alan Wright & Arthur R.
Miller, 5B FED. PRAC. & PROC. § 1353 (3d ed. 2004)); see also Systems Signs Supplies,
903 at 1014 (explaining that, although a litigant’s pro se status does not excuse
“complete failure to effect service,” such a litigant’s “technical imperfections of
service” may provide “grounds for leniency” when a defendant has actual notice of the
lawsuit).
The address listed on Greene’s summons for 1st Lake matches the address
listed for 1st Lake with the Louisiana Secretary of State, 18 and Greene now knows
the names of its registered agents. There is a reasonable possibility that Greene will
be able to properly serve 1st Lake and Huggett. Although Greene does not offer any
explanation for his failure to serve the defendants, the Court will nonetheless exercise
its discretion to quash service and provide Greene an additional 21 days from this
date during which he must re-serve both of the defendants and file proof of such
service into the record.
IT IS ORDERED that the request to dismiss the complaint is DENIED.
18
See R. Doc. No. 6; R. Doc. No. 11-2, at 3.
9
IT IS FURTHER ORDERED that the request to quash service is
GRANTED. Greene shall file proof of proper service upon 1st Lake Properties, Inc.
and Brenda Huggett into the record no later than NOVEMBER 21, 2018. Failure to
do so will result in the dismissal of Greene’s complaint.
New Orleans, Louisiana, October 31, 2018.
_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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