Sunbelt Rentals, Inc. v. Capital Restoration, LLC, et al.

Filing 37

ORDER AND REASONS denying without prejudice 29 Motion to Dismiss. FURTHER ORDERED that Sunbelt shall properly serve NOLA with the complaint and summons in the above-captioned case, or obtain a waiver of service, no later than 12/29/2023. If Sunbelt fails to serve NOLA by this deadline, NOLA may refile its motion to dismiss or Sunbelt's claims against NOLA may be placed on this Court's call docket for dismissal. Signed by Judge Lance M Africk on 11/14/2023. (ko)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SUNBELT RENTALS, INC.

CIVIL ACTION

VERSUS

No. 23-269

CAPITAL RESTORATION,
LLC ET AL.

SECTION I
ORDER & REASONS

Before the Court is defendant NOLA Healthcare LLC’s (“NOLA”) motion 1 to
dismiss plaintiff Sunbelt Rentals, Inc.’s (“Sunbelt”) claims against it without
prejudice pursuant to Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5). Sunbelt
opposes the motion. 2 For the reasons that follow, the Court denies the motion.
I.

BACKGROUND

This case arises from a dispute regarding defendant Capital Restoration, LLC’s
(“Capital”) alleged failure to pay Sunbelt for construction rental equipment provided
for Capital’s use at a property owned by NOLA. On January 20, 2023, Capital
removed the instant action to this Court from the 24th Judicial District Court for the
Parish of Jefferson, Louisiana. 3 On May 26, 2023, the Court granted Sunbelt’s motion
for leave to file an amended complaint. 4 As to NOLA, the amended complaint asserts

R. Doc. No. 29.
R. Doc. No. 31.
3 R. Doc. No. 1.
4 R. Doc. No. 17.
1
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claims for the enforcement of lien claims pursuant to Louisiana’s Private Works Act
and unjust enrichment. 5
On May 26, 2023, a summons was issued as to “NOLA Healthcare, Inc.” rather
than NOLA Healthcare, LLC. 6 The summons was returned unexecuted on June 15,
2023 because the address found on the Louisiana Secretary of State’s Business
Filings page for NOLA’s registered agent, Mike Patel, was a vacant building. 7 On
August 10, 2023, a summons was issued to serve NOLA through Mike Patel or Manoj
Patel, the two names listed on the Louisiana Secretary of State Business Filings page
for NOLA. 8 On August 17, 2023, service was attempted through NOLA’s registered
agent, Manoj Patel, at 3301 Bonita Beach Road, Suite 112, Bonita Springs, FL
34134. 9 However, according to Sunbelt, Mr. Patel was not present and his support
staff informed the process server that he was out of the country for two weeks. 10 On
September 14, 2023, a summons addressed to “NOLA Healthcare, Inc. through its
registered agent Mike Patel” at “327 Black River Drive Maddisonville [sic], LA 70477”
was returned executed. 11
NOLA subsequently filed the instant motion to dismiss. 12 NOLA asserts the
proof of service indicates that “Sunbelt improperly named NOLA on the summons,

R. Doc. No. 18 (amended complaint), ¶¶ 30–42 (Private Works Act); 43–47 (unjust
enrichment).
6 R. Doc. No. 19 (summons); see also R. Doc. No. 31, at 3.
7 R. Doc. No. 21; see also R. Doc. No. 29-2.
8 R. Doc. No. 26; see also R. Doc. No. 29-2.
9 R. Doc. No. 25; see also R. Doc. No. 31-3.
10 R. Doc. No. 31, at 4.
11 R. Doc. No. 28.
12 R. Doc. No. 29.
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improperly stated an incorrect address on the summons for NOLA and failed to
properly serve the proper agent for service for NOLA Healthcare, LLC.” 13 NOLA’s
registered agent—whose name is Manoj Patel—stated in an affidavit that his alias is
Mike Patel, that he does not reside at the 327 Black River address, and that he never
accepted service on behalf of NOLA in the above-captioned matter. 14
According to NOLA, it is possible that the owner of the 327 Black River
property, an individual named Mike Sarona, “incorrectly accepted service on behalf
of NOLA.” 15 NOLA argues that “[s]ervice at that address and service on Mr. Sarona,
or whoever accepted service that day, was improper as that address is not the
domicile address of NOLA, and Mike Sarona is not the registered agent, officer, or
manager for NOLA.” 16 Accordingly, NOLA contends that Sunbelt’s claims against it
should be dismissed without prejudice for failure to properly effectuate service of
process pursuant to Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5). 17
In response, Sunbelt asserts that its claims against NOLA should not be
dismissed because its efforts to serve Mike Patel of Louisiana were made in good faith
and Sunbelt reasonably believed service had been successful. 18 Sunbelt relied on
information it obtained from the Louisiana Secretary of State Business Filings
website and believed “Mike Patel” and “Manoj Patel” were two different people rather

R. Doc. No. 29-1, at 2.
R. Doc. No. 29-2.
15 Id.
16 Id.
17 Id.
18 See generally R. Doc. No. 31.
13
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than one person with an alias. 19 Sunbelt therefore requests an extension of time to
cure service upon NOLA and issue an alias summons. 20
II.

STANDARD OF LAW

Federal Rule of Civil Procedure 12(b)(4) provides that an action may be
dismissed for “insufficient process,” while Rule 12(b)(5) provides that an action may
be dismissed for “insufficient service of process.” “Although Rules 12(b)(4) and
12(b)(5) may appear to be similar, there is a distinction.” Piranha Rentals, LLC v.
Latkin, No. 15-6893, 2016 WL 8711679, at *1 (Feb. 19, 2016) (Africk, J.). “Rule
12(b)(4) is the proper challenge when the respondent alleges that the summons and
complaint do not properly name the party on whom the summons and complaint were
served.” Id. (quoting Wagster v. Gauthreaux, No. 12-00011-SDD, 2013 WL 5554104,
at *1 (M.D. La. Oct. 7, 2013)). “Rule 12(b)(5), in contrast, ‘allows for the dismissal of
a complaint for insufficiency of service of process.’” Id. (quoting Wagster, 2013 WL
5554104, at *1).
“Technically, . . . a Rule 12(b)(4) motion is proper only to challenge
noncompliance with the provisions of Rule 4(b) or any applicable provision
incorporated by Rule 4(b) that deals specifically with the content of the summons.”
McCoy v. Hous. Auth. of New Orleans, No. 15-398, 2015 WL 9204434, at *5 n.75 (E.D.
La. Dec. 17, 2015) (Brown, J.) (quoting 5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedures § 1353 (3d. ed.)). Instead, Rule 12(b)(5) “provides for

19
20

Id. at 3–5.
Id. at 5.
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dismissal of a claim if service of process was not timely made in accordance with
Federal Rule of Civil Procedure 4 or was not properly served in the appropriate
manner.” Worley v. Louisiana, No. 10-3313, 2012 WL 218992, at *2 (E.D. La. Jan. 25,
2012) (Africk, J.) (quoting Wallace v. St. Charles Sch. Bd., No. 04-1376, 2005 WL
1155770, at *1 (E.D. La. May 5, 2005) (Duval, J.)).
Pursuant to Rule 4(m), “[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. But if the
plaintiff shows good cause for the failure, the court must extend the time for service
for an appropriate period.” “To establish good cause, a plaintiff bears the burden of
demonstrating ‘at least as much as would be required to show excusable neglect.’”
Sims v. Landrieu Concrete & Cement Indus. LLC, No. 18-9932, 2020 WL 2617867, at
*2 (E.D. La. May 24, 2020) (Milazzo, J.) (quoting Winters v. Teledyne Movible
Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985)). “[S]imple inadvertence or mistake
of counsel or ignorance of the rules usually does not suffice.” Id. (quoting Winters, 776
F.2d at 1306).
Establishing good cause typically requires some evidence of “good faith on the
part of the party seeking an enlargement of time and some reasonable basis for
noncompliance within the time specified.” Lambert v. United States, 44 F.3d 296, 299
(5th Cir. 1995). “While the district court has discretion to extend the time allowed for
curing defective service if good cause is not shown, the court can also refuse to

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exercise this discretion.” Sims, 2020 WL 2617867, at *2 (quoting Hawkins v. Potter,
234 F. App’x 188, 190 (5th Cir. 2007)).
III.

ANALYSIS

NOLA argues that Sunbelt failed to properly serve NOLA’s registered agent,
officer, or manager by incorrectly identifying “NOLA Healthcare, Inc.” in the
summons, incorrectly listing NOLA’s registered address as “327 Black River Drive,
Madisonville, LA 70447” and serving another individual who improperly accepted
service on behalf of NOLA. 21 In response, Sunbelt does not dispute that Sunbelt did
not properly serve NOLA with process pursuant to Rules 12(b)(4) and 12(b)(5).
Rather, Sunbelt contends that it can demonstrate good cause for its failure to properly
effect service. 22 Specifically, Sunbelt argues that its efforts to serve NOLA were
reasonable based on Louisiana Secretary of State records and a corporate disclosure
statement filed by NOLA in another case, both of which suggested that “Manoj Patel”
and “Mike Patel” were two different individuals. 23
As discussed, Sunbelt made several attempts to serve NOLA. Its first attempt
to serve NOLA failed because the address listed for NOLA with the Louisiana
Secretary of State was a vacant building. 24 On its second attempt, “service was
attempted through NOLA’s registered agent as listed on the Louisiana Secretary of
State Business filings, Manoj Patel at 3301 Bonita Beach Road, Suite 112, Bonita

R. Doc. No. 29-1, at 3.
R. Doc. No. 31, at 3.
23 Id. at 4.
24 Id. at 3; see also R. Doc. Nos. 31-1 and 31-2.
21
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Springs, FL 34134.” 25 However, Mr. Patel was not present, and his support staff
informed the process server that he was out of the country for two weeks.” 26 Since
“Mike Patel” of Louisiana and “Manoj Patel” of Florida were both listed on the
Louisiana Secretary of State Business Filings page for NOLA, Sunbelt then
attempted to serve Mike Patel at 327 Black River Drive, Madisonville, LA 70447. 27
An individual accepted service on behalf of NOLA at this address as “Mike Patel.” 28
Ultimately, as stated, this individual was not in fact Manoj Patel, whose alias is Mike
Patel.
The Court is satisfied that Sunbelt has shown good cause sufficient to warrant
an extension of the time for service. As explained, Sunbelt made several attempts to
properly serve NOLA and its failures were understandable in light of the information
it found on the Louisiana Secretary of State’s Business Filings page for NOLA.
Sunbelt’s multiple attempts to serve NOLA make clear that its failure to effect proper
service upon NOLA was not the result of simple inadvertence, mistake of counsel, or
ignorance of the rules. See Sims, 2020 WL 2617867, at *2 (quoting Winters, 776 F.2d
at 1306). In other words, Sunbelt has provided ample evidence of its good faith
through its repeated efforts to serve NOLA. See Lambert, 33 F.3d at 299. Further,
the incorrect information found on the Louisiana Secretary of State’s website supplies

Id. at 4; see also R. Doc. No. 31-3.
Id.
27 Id.; see also R. Doc. No. 31-4.
28 Id.; see also R. Doc. No. 28.
25
26

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a reasonable basis for Sunbelt’s failure to properly serve NOLA. See id. Accordingly,
the Court finds good cause exists to extend the time for service. Fed. R. Civ. P. 4(m).
IV.

CONCLUSION

For the foregoing reasons,
IT IS ORDERED that NOLA’s motion to dismiss is DENIED WITHOUT
PREJUDICE.
IT IS FURTHER ORDERED that Sunbelt shall properly serve NOLA with
the complaint and summons in the above-captioned case, or obtain a waiver of service,
no later than DECEMBER 29, 2023. If Sunbelt fails to serve NOLA by this deadline,
NOLA may refile its motion to dismiss or Sunbelt’s claims against NOLA may be
placed on this Court’s call docket for dismissal.
New Orleans, Louisiana, November 14, 2023.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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