Randolph v. East Baton Rouge Parish School System et al

Filing 25

RULING: The Defendants Motion to Dismiss and Motion to Stay is GRANTED to the extent that the Court will stay all briefing deadlines until service of process has been effected. In all other respects, the motion is DENIED. Plaintiff shall have twenty-one (21) days from the date of this Order to properly serve the Defendants. Signed by Judge Shelly D. Dick on 03/03/2016. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KATHRYN RANDOLPH

CIVIL ACTION NO.

VERSUS

15-654-SDD-EWD

EAST BATON ROUGE PARISH
SCHOOL BOARD, ET AL.

RULING
This matter is before the Court on the Motion to Dismiss and Motion to Stay1 filed
by the Defendants, East Baton Rouge Parish School System, David Tatman, Dr. Bernard
Taylor, Jr., Warren Drake, Domoine Rutledge, Millie Williams, Sharmayne Rutledge, and
Stacie Williams (“the Defendants”). Plaintiff, Kathryn Randolph (“Plaintiff”), has filed an
Opposition2 to this motion. The Court has already granted this motion in part by staying
the briefing deadlines for other motions in this matter until this motion has been resolved.3
For the reasons which follow, the remainder of the Defendants’ motion will be denied.
I.

BACKGROUND
Plaintiff filed this lawsuit against the East Baton Rouge Parish School Board and

other Defendants asserting civil rights employment claims arising under both state and
federal law. The record in this case reflects that Plaintiff, who was acting pro se at the

1

Rec. Doc. No. 17.
Rec. Doc. No. 20.
3
Rec. Doc. No. 21, wherein the Court granted the Defendants’ Motion for Extension of Time to Respond to
Plaintiff’s Motion for Preliminary Injunction and Request for Expedited Review, Rec. Doc. No. 19.
2

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time of attempted service of process, executed five summonses which were returned to
the Clerk of Court by Plaintiff’s eventual counsel.4

The summonses were signed by

Plaintiff’s husband who indicated that he “left” a copy of the summonses with the
respective secretary for five Defendants: the EBRP School System (Lynn West), Millie
Williams (Susan Thomas), Warren Drake (Jamie Manda), Domoine Rutledge (Suzanne
Roberts), and David Tatman (Lynn West).5 Nothing in the record indicates that service
was made on the remaining Defendants, Sharmayne Rutledge, Dr. Taylor, or Stacie
Williams.
II.

INSUFFICIENT SERVICE OF PROCESS
The Government moves to dismiss this action under Rules 12(b)(5) and 4(m) for

insufficient service of process. “In the absence of valid service of process, proceedings
against a party are void.6 When service of process is challenged, the party making
service has the burden to establish its validity.”7
The Defendants contend that Plaintiff's Complaint8 should be dismissed for
insufficiency of service of process, pursuant to Fed.R.Civ.P. 12(b)(5), as she failed to
serve the EBRPSB's President or Vice President, as required under Louisiana law.
Louisiana Revised Statute 17:51 requires that all lawsuits against school boards “shall be

4

Rec. Doc. No. 9.
Rec. Doc. Nos. 9-1, 9-2, 9-3, 9-4, & 9-5.
6
Blankenship v. U.S., 2004 WL 4986557, at *3 (S.D. Tex. Oct. 15, 2004)(citing Aetna Business Credit, Inc.
v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir.1981).
7
Id., citing Aetna, 635 F.2d at 435.
8
Rec. Doc. 1.
5

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served on the President of the board and in his absence on the vice-president.”9 In
addition, Fed.R.Civ.P. (“Rule”) 4(m) requires that the plaintiff serve the proper defendant
within 120 days of filing the complaint with the court.
Defendants also argue for dismissal because they allege Plaintiff failed to properly
serve the individual Defendants in this case in accordance with Federal Rule 4(e), which
authorizes a plaintiff to serve a defendant through personal, domiciliary, or
“representative” service. Rule 4(e) also allows service of process in accordance with
state law pursuant to La. C.C. P. arts. 1231-37.
Plaintiff opposes the Defendants’ motion arguing that La. R.S. 17:51 is not the
statute that specifies the process and procedure for service of process. Rather, Plaintiff
contends that the procedure for service of process is found in Louisiana Code of Civil
Procedure Article 1265.10

Plaintiff further contends that Lynn West, an Executive

Assistant in the School Board’s central office, was “clothed with the apparent authority to
accept legal documents on behalf of the president as the agent for the School System
and other public officers of the school system as set forth in L.C.C.P. Art. 1265.”11
Plaintiff’s arguments are utterly without merit and contrary to settled state and
federal law. In Jackson v. St. John the Baptist Parish School Board,12 the Fifth Circuit
Court of Appeal of Louisiana rejected precisely the same argument presented by the

9

See La.Rev.Stat. 17:51; see also Lazard v. E. Baton Rouge Parish Sch. Bd., No. 3:12–00552, 2013 WL
3772286, at *2 (M.D.La. July 16, 2013).
10
Rec. Doc. No. 20, p. 3.
11
Id. at p. 4.
12
13-103 (La. App. 5 Cir. 6/27/13), 121 So.3d 164.

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Plaintiff in the case before the Court. The plaintiff in Johnson argued that service upon
the School Board could be made pursuant to Article 1265 of the Louisiana Code of Civil
Procedure rather than La. R.S. 17:51. The court held that “the more specific application
of La. R.S. 17:51 to school boards controls.”13 Federal courts in Louisiana have held
likewise.14
The Court also finds that the individual Defendants in this case were not properly
served in accordance with Rule 4(e) and La. C.C.P. article 1232.

Service upon a

defendant’s secretary at the defendant’s place of business in not proper service. In this
case, the individual Defendants were not personally served with a copy of the summons
and complaint, and copies of such documents were not left at the Defendants’ homes or
places of abode as required by Rule 4(e)(2)(A) & (B). Domiciliary service cannot be made
at one’s place of work.15
Despite these deficiencies, the Court is mindful that Plaintiff was proceeding pro
se at the time of the attempted service of process. Courts do expect plaintiffs who elect
to represent themselves to have the same level of knowledge of the law as attorneys

13

Id. at 169.
See Wallace v. St. Charles Parish School Board, No. 04-1376, 2005 WL 1155770 (E.D. La. May 5,
2005)(requiring service of process upon a School Board in accordance with La. R.S. 17:51); Lazard v. E.
Baton Rouge Parish Sch. Bd., No. 3:12–00552, 2013 WL 3772286, at *2 (M.D.La. July 16, 2013)(Court
held service upon the School Board Superintendent was improper as it did not comply with La. R.S. 17:51);
Petty v. Orleans Parish School Board, No. 13-6021, 2013 WL 545860 (E.D. La. Feb. 11, 2014)(Court held
service upon the School Board Superintendent was improper as it did not comply with La. R.S. 17:51).
15
See Muhammad v. State of Louisiana, No. 99-3742 & No. 99-2694, 2000 WL 1511181, n. 10 (E.D. La.
Oct. 6, 2000); Smith v. Western Offshore, Inc., 590 F.Supp. 670, 674 (E.D. La. 1984)(“Service upon an
individual through a nonauthorized agent for service of process at the individual's place of business is not
a proper means of serving process under the Federal Rules of Civil Procedure”.).
14

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admitted to practice.16 However, “the District Court has wide discretion in determining
whether to dismiss an action for insufficient service, and courts often give pro se litigants
leeway in correcting defects in service of process.”17 With this in mind, the Court will allow
Plaintiff twenty-one (21) days from the date of this Order to properly serve the Defendants.
Plaintiff is cautioned that failure to properly serve the Defendants within this time period
will result in a dismissal with prejudice.
III.

CONCLUSION
For the reasons set forth above, the Defendants’ Motion to Dismiss and Motion to

Stay18 is GRANTED to the extent that the Court will stay all briefing deadlines until service
of process has been effected. In all other respects, the motion is DENIED. Plaintiff shall
have twenty-one (21) days from the date of this Order to properly serve the Defendants.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on March 3, 2016.

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

16

Lazard, 2013 WL 3772286, at *2; citing Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981).
Id., at *2; citing Lisson v. ING Groep N.V., 262 F. Appx. 567, 571 (5th Cir. 2007).
18
Rec. Doc. No. 17.
17

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