Eugene v. International-Matex Tank Terminals LLC
Filing
21
ORDER AND REASONS: The 10 Motion to Dismiss for Failure to State a Claim is GRANTED in part, to enter dismissal without prejudice under Federal Rule of Civil Procedure 4(m), as set forth herein. Signed by Judge Ivan L.R. Lemelle on 9/27/2019. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PAUL EUGENE
CIVIL ACTION
VERSUS
NO. 18-5311
INTERNATIONAL-MATEX
TANK TERMINALS LLC
SECTION: “B”(1)
ORDER AND REASONS
Before
the
Court
are
defendant
International-Matex
Tank
Terminals LLC’s motion to dismiss (Rec. Doc. 10), plaintiff Paul
Eugene’s
opposition
(Rec.
Doc.
15),
and
defendant’s
reply
memorandum (Rec. Doc. 20). For the reasons discussed below,
IT IS ORDERED that the motion to dismiss under Federal Rule
of Civil Procedure 12(b)(5) is GRANTED in part, to enter dismissal
without prejudice under Federal Rule of Civil Procedure 4(m).
FACTS AND PROCEDURAL HISTORY
Plaintiff is a resident of Louisiana. See Rec. Doc. 2 at 2.
Defendant International-Matex Tank Terminals LLC (“IMTT”) is a
Delaware corporation with a principal place of business in New
Orleans, Louisiana. See id. IMTT previously employed plaintiff at
its St. Rose terminal. See Rec. Doc. 10-1 at 1.
Plaintiff brings this action pursuant to Title VII of the
Civil Rights Act of 1964, the Americans with Disability Act, and
other state laws. See Rec. Doc. 2. Plaintiff alleges that his
1
termination from IMTT was illegal and he suffered resulting damages
including loss of income, financial and emotional distress, and
suffering and loss of enjoyment of life. See id. at 3. Plaintiff
seeks, inter alia, compensatory, real, and punitive damages. See
id. at 4. Plaintiff also prays that his employment with IMTT be
reinstated. See id.
Plaintiff filed this action on May 24, 2018. See Rec. Doc.
10-1 at 3. Therefore, he was obligated to serve IMTT no later than
August 22, 2018. See id. Plaintiff served IMTT thirteen days after
that deadline, September 4, 2018. See id. at 4.
On October 16, 2018, IMTT filed a motion to dismiss for
insufficient service or, in the alternative, failure to state a
claim. See Rec. Doc. 10. On November 13, 2018, plaintiff filed a
response in opposition. See Rec. Doc. 15. On November 27, 2018,
IMTT filed a reply memorandum. See Rec. Doc. 20.
PARTIES’ CONTENTIONS 1
A. Defendant’s Contentions
IMTT
seeks
dismissal
pursuant
to
Rule
12(b)(5)
because
plaintiff failed to serve IMTT within 90 days after the filing of
his petition as required under FRCP 4. See id. at 1. Plaintiff
1 See also the parties’ contentions concerning IMTT’s request for an order
dismissing plaintiff’s claims pursuant to FRCP 12(b)(6). See Rec. Doc. 10-1 at
6-16; Rec. Doc. 15 at 3-7; Rec. Doc. 20 at 4-7 (the parties’ contentions
regarding 12(b)(6) dismissal).
2
filed his petition through counsel on May 24, 2018. See Rec. Doc.
10-1 at 3. Therefore, he was obligated to serve IMTT no later than
August 22, 2018. See id. Plaintiff served IMTT thirteen days after
the deadline, September 4, 2018. See id. at 4. Without a goodcause explanation, the only conclusion is that plaintiff failed to
timely
serve
IMTT
and
his
lawsuit
should
be
dismissed
with
prejudice. See id. “A dismissal without prejudice would be futile
in this case because [p]laintiff’s deadline to file suit on his
claims [has] passed.” Id. When plaintiff failed to effectuate
timely service, his claims expired as if they were never filed.
See id. at 5. IMTT believed that it would no longer face this
lawsuit
after
it
succeeded
before
the
EEOC
and
non-suit
by
plaintiff. See id. Plaintiff has exhibited a clear record of delay
such that his claims must be dismissed with prejudice. See id.
In its reply, IMTT continues to urge that plaintiff’s petition
should be dismissed. See Rec. Doc. 20 at 2. Plaintiff’s in forma
pauperis status does not provide good cause to excuse his failure.
See id. Plaintiff was not required to hire a private process server
at $250.00 per hour. See id. Pursuant to the FRCP, plaintiff not
only had the ability, but also the right, for the U.S. Marshal to
effect service of this lawsuit on his behalf. See id. at 2-3.
Plaintiff apparently never requested service by the U.S. Marshal.
See id. at 3. The Fifth Circuit has affirmed dismissal of a lawsuit
when an in forma pauperis plaintiff failed to timely request
3
service by the U.S. Marshal. See id. Furthermore, in the Fifth
Circuit, a suit dismissed for failure to serve is treated as
abandonment under state law. See id. Therefore, even if this case
is dismissed without prejudice, the dismissal would operate as a
dismissal with prejudice because the prescriptive period has not
been interrupted considering plaintiff’s failure to timely serve
IMTT. See id. at 3-4.
B. Plaintiff’s Contentions
Plaintiff concedes that he perfected service of process on
IMTT 13 days late; however, he contends that dismissal based on
insufficient service of process is not appropriate considering the
totality of the circumstances here. See Rec. Doc. 15 at 2. At all
relevant times here, plaintiff was proceeding in forma pauperis
and reportedly operating in good faith, in an effort to serve IMTT
in Baton Rouge, Louisiana, through personal service. He attributes
late service to his financial inability to hire a process server
at $250.00 an hour. See id.
He further argues that dismissal without prejudice would not
be
futile
as
the
filing
of
the
first
complaint
interrupted
prescription and plaintiff would have additional time to re-file
the complaint. See id. Plaintiff received his right to sue letter
from the EEOC on February 25, 2018, making his complaint filing
deadline May 26, 2018. See id. He posits that since the instant
complaint was filed on May 24, 2018, this would allow an additional
4
two days to re-file his complaint if it were dismissed without
prejudice. See id. He proposes that in the interest of judicial
efficiency
and
equity,
the
instant
complaint
should
not
be
dismissed and even if it were, the dismissal should be without
prejudice. See id. at 3.
LAW AND FINDINGS
Federal Rule of Civil Procedure 12(b)(5) allows a party to
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.
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
5
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).
It appears to be uncontroverted that plaintiff eventually served
IMTT correctly by way of personal service.
Federal Rule of Civil Procedure 4(m) establishes the time
limit for service, stating that “[i]f 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.” Federal Rule
of Civil Procedure 4(m) also states that if a plaintiff shows good
cause for the failure, the court must dismiss the action without
prejudice or direct service be made within a specified time. It is
undisputed here that plaintiff failed to serve IMTT within 90 days
after his complaint was filed. Both parties agree that plaintiff
served IMTT thirteen days late. See Rec. Doc. 10-1 at 3; see also
Rec. Doc. 15 at 2.
The issue here concerns whether plaintiff has shown good cause
for his failure. See Teveras v. Clark, Civil Action No. 17-12747,
2018 U.S. Dist. LEXIS 117890, at *3 (E.D. La. July 16, 2018)
(stating that a court must first determine whether good cause exist
and the party responsible for serving process has the burden to
6
show that good cause existed for its failure to server process
properly). If good cause does exist, the Court must extend the
time requirement for service of process. If good cause does not
exist, the Court may, in its discretion, decide whether to extend
time for service or dismiss the case without prejudice. See id.
Plaintiff has not shown good cause for his failure to timely
serve IMTT. Pursuant to Federal Rule of Civil Procedure 4(c)(3),
at the request of an in forma pauperis plaintiff, a court may
direct that service be made by a United States Marshal or other
person
or
officer
specially
appointed
by
the
Court
for
that
purpose. See Wade v. Powell, Civil Action No. 02-2590, 2003 U.S.
Dist. LEXIS 17951, at *3 (E.D. La. Oct. 7, 2003); see also 28
U.S.C.
§
1915.
The
Fifth
Circuit
has
held
that
a
plaintiff
proceeding in forma pauperis is entitled to rely upon service by
a Marshal and should not be penalized for failure of a Marshal to
properly effect service, where such failure is due to no fault of
the plaintiff. See Wade, 2003 U.S. Dist. LEXIS 17951, at *3.
However, the plaintiff must request that service be made upon the
appropriate defendant and attempt to remedy any apparent service
defects that arise and are known to plaintiff. See id. at *4; see
also Nagy v. Dwyer, 507 F.3d 161, 164 (2nd Cir. 2007) (stating
that an entitlement to service by the Marshal does not mean
automatic service by the Marshal). To show good cause for not
effecting timely service, an in forma pauperis plaintiff must show
7
excusable
neglect
at
minimum.
See
id.
at
*5.
Showing
simple
inadvertence, mistake of counsel, or ignorance of relevant rules
does not establish good cause for not effecting timely service.
See id.; Kersh v. Derozier, 851 F.2d at 1512.
There
is
nothing
in
the
record
showing
that
plaintiff
requested service upon IMTT by the U.S. Marshals of this District
or any other district. Plaintiff does not allege that he requested
service by the U.S. Marshals Service. Instead, plaintiff argues
that, even though he was entitled to service by the Marshals, at
no cost to him, his finances prevented him from timely serving
IMTT. That argument misses the point and is unconvincing. See also
Smith v. Pennsylvania Glass Sand Corp., 123 F.R.D. 648, 650 (N.D.
Fla. Feb. 24, 1988) (finding that a financial complication did not
establish good cause). Plaintiff served IMTT on September 4, 2018;
however, that was 13 days after the 90-day deadline and plaintiff
offers no other excusable reason for failing to request free
assistance from the Court or Marshal Service. His financial status
would not foreclose that assistance, it would have been freely
given upon request. See Wade, 2003 U.S. Dist. LEXIS 17951, at *5.
Plaintiff has failed to show good cause for his failure to timely
serve IMTT. See id. at *6.
Having found that good cause does not exist, the court may,
in its discretion, decide whether to extend time for service or
8
dismiss the case without prejudice. See Teveras, 2018 U.S. Dist.
LEXIS 117890, at *3.
The relevant rules for this Court and pertinent case law in
this Circuit allow for discretion to “dismiss without prejudice”
or dismiss with prejudice when a dismissal without prejudice would
be futile. Circuit precedent recognizes that a dismissal without
prejudice leaves the parties in the same legal position as if no
suit had been filed and such a dismissal will result in an action
being time barred if the applicable statute of limitations has run
after the filing of the complaint. See Hawkins v. McHugh, 46 F.3d
10, 12 (5th Cir. 1995).
Plaintiff argues that dismissal without prejudice would not
be futile here because the filing of his complaint interrupted the
prescription period, leaving him with two days as additional time
to re-file his complaint. See Rec. Doc. 15 at 2-3. He contends the
best interest of judicial time and cost should not cause dismissal
with prejudice. See id. at 3. IMTT contends that dismissal without
prejudice would be futile because plaintiff’s 90-day deadline to
file suit on his claims has passed; plaintiff’s failure to timely
serve IMTT makes his claims expire as if they were never filed;
and plaintiff has exhibited a clear record of delay. See Rec. Doc.
10-1 at 4-5; see also Rec. Doc. 20 at 3-4.
9
While inexcusable neglect to timely effect service has been
shown, IMTT offers no facts to support its assertion that plaintiff
has exhibited a clear record of intentional delay.
In Hawkins, 46 F.3d at 13, the Circuit affirmed the district
court’s
dismissal
plaintiff’s
service,
of
first
plaintiff’s
complaint
annulling
the
was
suspension
established by Louisiana law.
second
complaint
dismissed
of
a
for
because
insufficient
prescription
period
An equitable exception to the
limitations period has been developed that may allow a plaintiff
to maintain an action that would otherwise be barred by the statute
of limitations.
As stated in Burrell v. Crown Cent. Petroleum,
Inc., 255 F. Supp. 2d 591, 604 (E.D. Tex. 2003), the equitable
exception arises when the unlawful employment practice manifests
itself over time, instead of as a single discriminatory act or a
series of discrete acts. See Waltman v. Int'l Paper Co., 875 F.2d
468, 474 (5th Cir.1989). This exception is known as the “continuing
violation doctrine.” Notably, the Fifth Circuit has recognized
that the application of this doctrine can be “inconsistent and
confusing.” See Berry v. Bd. of Supervisors of L.S.U., 715 F.2d
971, 979 n. 11 (5th Cir.1983); see also Salinas v. Kroger Texas,
L.P., 163 F. Supp. 3d 419, 432 (S.D. Tex. 2016) and cases cited
therein (In assessing whether legal rights were timely exercised,
it is the jury's role to determine when a reasonable person in
plaintiff's position should have realized that alleged misdeeds
10
were actionable discrimination).
Without prejudice for additional
review in any future action, the present record appears to show an
arguable yet barely plausible claim for a continuing violation.
Further,
an
equitable
result
should
allow
dismissal
without
prejudice as requested and minimally shown warranted by plaintiff.
New Orleans, Louisiana this 27th day of September 2019
__________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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