Stephens v. Carter et al

Filing 36

RULING denying 30 Motion to Dismiss Unserved Defendant. Signed by Judge Shelly D. Dick on 12/5/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
VAN H. STEPEHENS

CIVIL ACTION

VERSUS

15-521-SDD-RLB

JAMES C. CARTER, ANDY’S SUPER
CO., VIN CORPORATION, SPIRIT
COMMERCIAL AUTO RISK
RETENTION GROUP and PROGRESSIVE
CASUALTY INSURANCE COMPANY
RULING
This matter is before the Court on the Motion to Dismiss Unserved Defendant1 filed
by Defendants, James C. Carter, VIN Corporation, and Spirit Commercial Auto Risk
Retention Group, on behalf of Andy’s Super Co. (“ASC”). Plaintiff Van H. Stephens
(“Plaintiff”) has filed an Opposition,2 to which Defendants filed a Reply.3 For the reasons
which follow, the motion will be denied.
I.

FACTUAL BACKGROUND4

Plaintiff alleges that he sustained injuries as a result of an auto accident he had

with James Carter (“Carter”) on July 18, 2014. Plaintiff further alleges that, at the time of
the accident, Carter was acting within the course and scope of his employment, and/or
on a mission, and/or on an errand for ASC, and/or VIN Corporation (“VIN”) rendering ASC
and VIN liable to the Plaintiff under the doctrine of respondeat superior.

1

Rec. Doc. 30.
Rec. Doc. 33.
3
Rec. Doc. 35.
4
The Court adopts the Factual Background from Rec. Docs. 1-3, 29-2.
2

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The instant motion before the Court is Defendants’ Motion to Dismiss Unserved
Defendant, Andy’s Super Co. Defendants claim “that at the time of removal ASC was not
served.”5 Defendants further aver that Rule 4 of the Federal Rules of Civil Procedure
(“FRCP”) requires the Court to dismiss ASC, as it remains unserved.6
Plaintiff, in turn, argues that, prior to the case being removed from the 18th Judicial
Court (“JDC”) for the State of Louisiana, he mailed “a certified copy of its [sic] filed Petition
for Damages and a certified copy of the Citation from the 18th Judicial Court Clerk to ASC
through its registered agent for services of process – Andy Birdwell at 7855 S. Madison
Street, Suite E, Burr Ridge, IL, 60527.”7
II.

LAW AND ANALYSIS
Rule 4(m) of the Federal Rules of Civil Procedure states: “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 the defendant or
order that service by made within a specified time.”8 If the Court determines that ASC, a
Defendant in the present case, was not properly served within 90 days after the complaint
was filed in the 18th JDC, the Court may either dismiss with prejudice Plaintiff’s claims
against ASC or order that Plaintiff serve ASC within a specified time.
The sole issue before the Court in this motion is whether ASC was properly served.
29 U.S.C. § 1448 states:
In all cases removed from any State court to any district court
of the United States in which any one or more of the

5

Rec. Doc. 30-1.
The Court notes that ASC’s attorney signed the Notice of Removal to the Middle District of Louisiana on
behalf of ASC-a clear sign that ASC was both informed of, and participating in, the current litigation.
7
Rec. Doc. 33.
8
F.R.C.P. Rule 4(m) (2016).
6

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defendants has not been served with process or in which the
service has not been perfected prior to removal, or in which
process served proves to be defective, such process or
service may be completed or new process issued in the same
manner as in the cases originally filed in such district court.9
In order for the Court to resolve the question of sufficiency of process, it must “[look] to
the state law governing process.”10

Accordingly, the Court must examine whether

Plaintiff’s service of process on ASC was in accordance with the Louisiana Civil
Procedure Rules governing service of process.
Based upon the documents presented to the Court,11 it is clear that ASC is a
foreign corporation authorized to do business in the state of Louisiana.12 It is undisputed
by the Parties that the suit arose under Louisiana Revised Statute 13:3201.13 The Parties
do, however, dispute whether Plaintiff complied with Louisiana Revised Statute 13:3204
(“Louisiana Long Arm Statute”). The Louisiana Long Arm Statute states, in relevant part:
In a suit under R.S. 13:3201, a certified copy of the
citation…shall be sent by counsel for the plaintiff…to the
defendant by registered or certified mail, or actually delivered
to the defendant by commercial courier, when the person to
be served is located outside of this state or by an individual
designated by the court in which the suit is filed, or by one
authorized by the law of the place where the service is made
to serve the process of any of its courts of general, limited, or
small claims jurisdiction.
If service of process cannot be made on the nonresident by
registered or certified mail or by actual delivery, the court shall
order that service of process by made on an attorney at law

9

28 U.S.C. § 1448 (2016).
Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.1285, 1287 (11th Cir. 1985).
11
 As outlined by the Supreme Court in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007), “Courts must consider the complaint in its entirety, as well as other sources courts ordinarily
examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which the court may take judicial notice.”
12
Rec Docs. 33-2, 35.
13
Id.
10

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appointed to represent the defendant pursuant to Code of
Civil Procedure Article 5091.14
In order to satisfy the plain language of the Louisiana Long Arm Statute, the Plaintiff must
serve ASC either by registered or certified mail or commercial carrier. The documents in
the record show that Plaintiff sent, via certified mail, an original and copies of the Petition
for Damages as well as a certified copy of the Citation from the 18th JDC15 - a clear
attempt to comply with the Louisiana Long Arm Statute. ASC argues that Plaintiff did not
satisfy the Louisiana Long Arm Statute because: ASC was not actually served process,
there is a dispute as to ASC’s address, and Plaintiff only served one of the addresses
without any attempt to serve the second address.
The Louisiana First Circuit Court of Appeals in McFarland v. Dippel addressed the
question of whether a party must actually be served in order to comply with the Louisiana
Long Arm Statute. McFarland arose from the sale of a home by a South Carolina resident,
McFarland, to Dippel, a Louisiana resident. 16 Shortly after the sale, Dippel’s attorney
“wrote McFarland a letter asserting a warranty claim for defects in the home.”17 Within
the same month of the letter being sent, McFarland’s wife, who was also an attorney,
wrote back to Dippel on behalf of her husband, denying the claims made in Dippel’s
letter.18

Dippel filed suit in the 20th Louisiana JDC.19

Neither party disputed that

McFarland was served via certified mail at his correct residential address in South

14

La. R.S. 13:3204 (2016).
Rec. Doc. 33, 33-4.
16
McFarland v. Dippel, 99-0584 (La.App. 1 Cir. 3/31/00).756 So.2d 618, 620.
17
Id.
18
Id.
19
Id.
15

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Carolina.20 However, “McFarland did not claim the certified mailing, which was returned
to Dippel’s attorney,” and “the envelope that contained the citation and petition bears the
notation “UN” on it, underneath which the dates 10/28, 11/4, and 11/12 are listed.”21
Following a motion for a default judgment against McFarland due to the unanswered
mailing of the citation and petition, the 20th JDC awarded a default judgment to Dippel.22
Subsequent to the default judgment in favor of Dippel, McFarland filed a petition seeking
to nullify the default judgment based on the legal ground that he was not properly served
pursuant to the Louisiana Long Arm Statute, and the court therefore lacked personal
jurisdiction over him.23
Reviewing the Louisiana Long Arm Statute, the McFarland court held:
Under the clear wording of [the Louisiana Long Arm Statute]
all that is necessary to constitute service upon a non-resident
under the long-arm statute is that counsel for the plaintiff send
a certified copy of the citation and of the petition in the suit to
the defendant by registered or certified mail, or actually deliver
it in person. There is no requirement under [the Louisiana
Long Arm Statute] for a signed return receipt.24
Applying the holding of McFarland to the present case, all the Plaintiff is required
to do to satisfy the Louisiana Long Arm Statute is send a certified copy of the citation and
petition from the 18th JDC by registered or certified mail, or deliver in person the citation
and petition to ASC – there is no requirement that Plaintiff actually physically serve ASC.

20

Id.
Id.
22
McFarland, 706 So.2d at 620.
23
Id.
24
Id. at 622.
21

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Based upon the documents provided to the Court, Plaintiff complied with the requirements
of the Louisiana Long Arm Statute as interpreted by the court in McFarland.25
ASC attempts to distinguish its case from McFarland by arguing that, unlike the
defendant in McFarland, ASC was not attempting to evade process.26

The court in

McFarland stated: “where the facts demonstrate a litigant chose to ignore notice of a
certified letter, and refused to claim the letter at the post office, that conduct is tantamount
to a refusal of service and cannot defeat otherwise valid service.”27 ASC interprets this
quotation as support for its contention that, unless a defendant is actively evading service
of process, the Court must find that the requirements of the Louisiana Long Arm Statute
were not satisfied. This argument is unsupported by the plain language of the Louisiana
Long Arm Statute and the clear holding of McFarland – “All that is necessary to constitute
service upon a non-resident under the long-arm statute is that counsel for the plaintiff
send a certified copy of the citation and of the petition in the suit to the defendant by
registered or certified mail, or actually deliver it in person.”28
ASC’s remaining argument is that it was not properly served because Plaintiff knew
of a second business address for ASC as evidenced by the accident report and other
documents.29 According to ASC, “it is likely plaintiff issued his initial service in Burr Ridge,
IL to an incorrect address thus depriving ASC of notice of this matter.”30 ASC offers no
jurisprudential support for this contention. The Court applies the thorough and well-

25

Rec. Docs. 33, 33-3, 33-4.
Rec. Doc. 35.
27
McFarland, 756 So.2d at 622.
28
 Id.
29
Rec. Docs. 35, 35-1, 35-2.
30
Rec. Doc. 35.
26

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reasoned analysis in Grace v. Myers for guidance as to ASC’s argument regarding
whether service was proper due to an alleged mistake with the correct address.31
In Grace, the non-resident upon whom service was attempted submitted proof that
he did not live at the address where service was attempted and had, in fact, been living
in a different state from that in which service was attempted.32 In examining these facts,
the Grace court stated,
It is clear that Plaintiff did not properly serve [Defendant]
pursuant to [the Louisiana Long Arm Statute] as [Defendant]
did not live at his former address…at the time service was
attempted. The record indicates that Plaintiff directed service
to an address obtained at the time of the accident and made
no additional efforts to determine [Defendant’s] address at the
time service was attempted.33
Based on these facts, the court in Grace held that the plaintiff had not served the
defendant in accordance with the Louisiana Long Arm Statute. The facts in Grace and
the present case, however, are distinguishable. While ASC had a different address listed
on the accident report and in the statement of insurance coverage, the address that
Plaintiff served was the address listed with the Illinois Secretary of State for the registered
agent for service of process for 2015.34 Unlike in Grace, the Plaintiff properly relied on the
records of the Illinois Secretary of State, which clearly indicate that the address for both
the Agent and the address for the President was Burr Ridge, Illinois.35 ASC’s argument
presents a legal conundrum which would obligate the Plaintiff to serve an address other
than the current valid address for the registered agent for the service of process as

31

Grace v. Myers, 15-cv-00300, 2015 WL 4939893, *1 (M.D. La. Aug. 18, 2015).
Id. at *4.
33
Id. at *5.
34
Rec. Docs. 33-3, 35-1, 35-2.
35
Rec. Doc. 33-3.
32

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evidenced by the records for the Illinois Secretary of State – the very purpose for a
registered agent for the service of process is to ensure that a business has one individual
upon whom process can be served so that such confusions can be avoided.36
Because the Court finds that ASC’s argument regarding multiple addresses is
unsupported by relevant jurisprudence, the Court finds that Plaintiff’s mailing to the Burr
Ridge address in accordance with the accurate records of the Illinois Secretary of State
fulfills the requirements of the Louisiana Long Arm Statute.
In Plaintiff’s Memorandum in Opposition, he requests that service be deemed
sufficient or, alternatively, that he be granted additional time to perfect service on ASC.37
Given the Court’s finding that Plaintiff complied with the Louisiana Long Arm Statute, the
Court deems that Plaintiff’s service on ASC was sufficient.38
III.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss39 is DENIED. Having

denied Defendant’s Motion to Dismiss and, for the above stated reasons, the Court finds
that service on ASC was proper under the Louisiana Long Arm Statute.
Signed in Baton Rouge, Louisiana on December 5, 2016. 

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

36

Id.
Rec. Doc. 33.
38
Accordingly, the Court need not entertain Plaintiff’s and ASC’s argument regarding service of ASC
counsel to fulfill the Louisiana Long Arm Statute.
39
Rec. Doc. 30.
37

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