Lantz et al v. Progressive Casualty Insurance et al

Filing 51

ORDER denying 33 Motion to Appoint Curator for defendant, Amador Gomez Ochoa. The 26 Show Cause Deadline is extended, as to Defendant Amador Gomez Ochoa, to 12/2/2016. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 11/7/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KATHERINE COLLINS LANTZ, ET AL.

CIVIL ACTION

VERSUS
NO. 16-318-JJB-RLB
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, ET AL.
ORDER
Before the Court is Plaintiffs’ Motion to Appoint Curator. (R. Doc. 33). Plaintiffs seek to
serve defendant Amador Gomez Ochoa through an appointed attorney pursuant to Louisiana
Code of Civil Procedure 5091 “because he is an absentee who has not been served with process.”
(R. Doc. 33 at 1).
Plaintiffs initiated this personal injury action on or about April 7, 2016. (R. Doc. 1-2).
The action was removed on May 10, 2016. (R. Doc. 1).
The record indicates that Plaintiffs attempted to serve Ochoa with process on or about
April 21, 2016. (R. Doc. 24).
On September 27, 2016, the Court ordered Plaintiffs to show cause, in writing, why their
claims against Ochoa should not be dismissed under Rule 4(l) and (m) of the Federal Rules of
Civil Procedure for lack of service and/or proof of service. (R. Doc. 26 at 1). The Court further
provided that Plaintiffs did not have to respond to the show cause order if they filed into the
record proof of service on Ochoa by October 11, 2016. (R. Doc. 26 at 1).
On October 11, 2016, Plaintiffs filed the instant motion. (R. Doc. 33).
Article 5091 of the Louisiana Code of Civil Procedure provides, in pertinent part, the
following:
The court shall appoint an attorney at law to represent the defendant, on the
petition or ex parte written motion of the plaintiff, when:

(1) It has jurisdiction over the person or property of the defendant, or over the
status involved, and the defendant is:
(a) A nonresident or absentee who has not been served with process, either
personally or through an agent for the service of process, and who has not waived
objection to jurisdiction.
La. Code Civ. Proc. Ann. art. 5091(A). Plaintiffs seek appointment of an attorney at law to
represent Ochoa on the basis that he is an “absentee who has not been served with process.” (R.
Doc. 38 at 1).
At least one district court has questioned whether this Louisiana procedural statute
applies in an action in federal court outside of the context of aiding in the execution of judgments
as expressly authorized in Rule 69(a)(1) of the Federal Rules of Civil Procedure. See Ware v.
Daybrook Fisheries, Inc., No. 14-2229, 2015 WL 7296654, at *2 (E.D. La. Nov. 18, 2015).
Plaintiff has not submitted any arguments regarding whether the instant procedural statute should
be applied in this diversity action.
The Court need not decide that issue at this time. An “absentee” is defined as a person
who is either a nonresident of this state, or a person who is domiciled in but has departed from
this state, and who has not appointed an agent for the service of process in this state in the
manner directed by law; or a person whose whereabouts are unknown, or who cannot be found
and served after a diligent effort, though he may be domiciled or actually present in the state; or
a person who may be dead, though the fact of his death is not known, and if dead his heirs are
unknown.” La. Code Civ. Proc. art. 5251(1).
In support of their motion, Plaintiffs assert that they have “requested service at the
address identified within the accident report” associated with the underlying accident but “were
advised that while the apartment complex existed, no such address as identified within the
accident report existed.” (R. Doc. 38 at 1). Plaintiffs also submitted an affidavit by Tom Cassisa,
the owner of the process server company used by Plaintiff, who provides that service was
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attempted at an address in Baton Rouge; the mail carrier for the area confirmed that Ochoa had
moved from the location months ago; a current address for Ochoa could not be located; and the
owner of the vehicle in the crash report could also not be located. (R. Doc. 38 at 2).
The Court finds that the foregoing efforts, which did not include the hiring of a private
investigator or any further investigation to determine the whereabouts of Ochoa, are insufficient
to establish a “diligent effort” as required by the statute. See Smith v. Averette, No. 15-2396,
2016 WL 434368, at *3 (W.D. La. July 18, 2016), report and recommendation adopted, 2016
WL 4384785 (W.D. La. Aug. 16, 2016) (court was not authorized to appoint attorney at law
where there was no indication that the plaintiff hired a private investigator and identified the
efforts made by such an investigator to locate the unserved defendant); Meyer v. Bayles, No. 120043, 2012 WL 1667586, at *1 n.4 (W.D. La. May 11, 2012) (same).
For the foregoing reasons,
IT IS ORDERED that Plaintiffs’ Motion (R. Doc. 33) is DENIED. Any renewed
motion shall specifically address the applicability of Louisiana Civil Procedure Rules to this
matter in federal court. The motion shall also address any costs associated with such
appointment as set forth in Louisiana Code of Civil Procedure 5096. Finally, the motion shall
address the specific steps taken to attempt service of Ochoa within the timeframes permitted by
Rule 4 of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the deadline to respond to the Court’s September 27,
2016 Show Cause Order (R. Doc. 26) is extended, with regard to defendant Amador Gomez
Ochoa, to December 2, 2016.
Signed in Baton Rouge, Louisiana, on November 7, 2016.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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