Lantz et al v. Progressive Casualty Insurance et al

Filing 62

ORDER denying 55 MOTION to Appoint Curator for Amador Gomez Ochoa. ORDERED that on or before March 17, 2017, Plaintiffs shall serve Defendant Ochoa and file proof of service into the record. Failure to do so may result in dismissal of Defendant Ochoa, without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 02/17/2017. (ELW)

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. 55). Plaintiffs seek
an order appointing an “attorney at law” to represent defendant Amador Gomez Ochoa pursuant
to Louisiana Code of Civil Procedure article 5091 for the purpose of effecting service on the
allegedly absentee defendant.
I.

Background
Plaintiffs initiated this personal injury action on or about April 7, 2016. (R. Doc. 1-2).

The record indicates that Plaintiffs attempted to serve Ochoa with process on or about April 21,
2016, but were unsuccessful. (R. Doc. 24). The action was removed on May 10, 2016. (R. Doc.
1).
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 their first motion to appoint curator. (R. Doc. 33).
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 Plaintiffs, who provides that service was 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).
On November 7, 2016, the Court denied the foregoing motion, concluding that Plaintiffs
did not establish that Ochoa was an “absentee” under the statute. (R. Doc. 51). The Court
extended Plaintiffs’ deadline to respond to the Court’s September 27, 2016 Show Cause Order
(R. Doc. 26) to December 2, 2016.
On December 2, 2016, Plaintiffs filed the instant motion, which again seeks the
appointment of a curator pursuant to Louisiana Code of Civil Procedure article 5091 for the
purposes of serving process on Ochoa. (R. Doc. 55). Plaintiffs represent that they hired a private
investigator, Heather Fulker Cambre of Genesis Information Services, Inc., to locate the
whereabouts of Ochoa. (R. Doc. 55 at 2). In an attached affidavit, Ms. Cambre represents that
she identified several possible addresses for the location of Ochoa and attempted service at five
separate locations in Baton Rouge, Louisiana. (R. Doc. 55-4). None of these attempts at service
were successful.
II.

Law and Analysis
“Under the Erie doctrine, federal courts sitting in diversity apply state substantive law

and federal procedural law.” Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996)
(citing Erie R. Co. v. Thompkins, 304 U.S. 64, 78 (1938)). Accordingly, federal procedural law
governs procedural law in this action. See S. U.S. Trade Ass'n v. Guddh, 565 F. App’x 280, 284

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(5th Cir. 2014) (citing DP Solutions, Inc. v. Rollins, Inc., 353 F.3d 421, 427 (5th Cir. 2003); see
also Fed. R. Civ. P. 81(c) (“These rules apply to a civil action after it is removed from a state
court.”); Willy v. Coastal Corp., 503 U.S. 131, 134 (1992) (The “expansive language” of Rule
81(c) “contains no express exceptions.”).
Rule 4 of the Federal Rules of Civil Procedure governs service of process in a federal
civil action. Under the federal rules, an individual may be served by personal service,
domiciliary service, or by serving an agent “authorized by appointment or by law to receive
service of process.” Fed. R. Civ. P. 4(e)(2). Alternatively, an individual may be served
“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(e)(1).
Plaintiffs seek an order appointing an attorney at law to represent Ochoa pursuant to
Louisiana Code of Civil Procedure article 5091, which provides, in pertinent part, the following:
A. 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. art. 5091(A).1 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

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According to a leading treatise, the appointment of an attorney at law to represent an absentee defendant
under Louisiana law is “derived from Spanish law” in lieu of the “common law approach to providing fair
notice in such circumstances . . . through advertisement.” Frank Maraist, Attorneys for unrepresented
parties, 1A La. Civ. L. Treatise, Civ. Proc. - Special Proceed. § 10.3; see also La. Code Civ. Proc. Ann.
Bk. IX, T. I, Ch. 2, Refs & Annos. (“The Louisiana procedural practice of appointing an attorney at law to
represent an unrepresented defendant stems back to Partida 3. 2. 12, requiring the appointment of a
curator to represent an absent defendant.”) (citing Robert Wyness Millar, Jurisdiction Over Absent
Defendants: Two Chapters in American Civil Procedure, 14 La. L. Rev. 321, 329 (1954)).

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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 this action, the Court previously did not reach the issue of whether Article 5091 is
applicable in a federal proceeding because, even if it was, Plaintiffs had not established a
“diligent effort” to serve the absentee defendant as required by the statute. See Lantz v. State
Farm Mutual Automobile Ins. Co., No. 16-318, No. 51 (M.D. La. Nov. 7, 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); see also 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)
(same); Meyer v. Bayles, No. 12-0043, 2012 WL 1667586, at *1 n.4 (W.D. La. May 11, 2012)
(same). Given the factual submissions in support of the instant motion, the Court must now
address the applicability of Article 5091 in a federal proceeding removed from state court.
Having reviewed the applicable law, the Court concludes that Article 5091 constitutes a
Louisiana procedural mechanism that falls outside of the “state law for serving a summons” that
is applicable under Rule 4(e)(1). Foremost, Louisiana law for serving process on resident
individuals does not reference Article 5091, or otherwise discuss the appointment of an attorney
on behalf of an absentee in-state defendant. See La. Code. Civ. P. arts. 1231-1237. While the
Louisiana long arm statute, which governs service of process on non-residents, references Article
5091, it merely provides that “[i]f service of process cannot be made on the nonresident by

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registered or certified mail or by actual delivery, the court shall order that service of process be
made on an attorney at law appointed to represent the defendant pursuant to Code of Civil
Procedure Article 5091.” La. R.S. 13:3204(B). The Louisiana long arm statute does not provide
the court with authority to make such an appointment; it merely authorizes the court to order
service of process on an attorney already appointed pursuant to Article 5091.
While service of process on an attorney at law duly appointed pursuant to Article 5091
prior to removal may be an appropriate method for serving an absentee defendant in an action
removed to federal court, the actual appointment of such an attorney goes beyond Rule 4(e)(1).
Rule 4(e)(1) does not authorize the Court to apply Louisiana procedural law to aid in service of
process on an absentee defendant.2
The Court’s holding is consistent with a recent decision by the Western District of Texas
addressing analogous procedural mechanisms for appointment of an attorney ad litem to
represent unknown heirs pursuant to Texas procedural law. See Ocwen Loan Servicing LLC v.
Lane, No. 15-244, 2015 WL 7301182, at *1 (W.D. Tex. Nov. 18, 2015) (“While service may be
effected according to state law, providing procedural protection for a litigant properly served
who did not appear goes beyond effectuating service, and it is not at all clear to the Court that
Federal Rule 4(e)(1) authorizes the appointment, at the expense of the United States government,
of an attorney ad litem to represent unknown heirs to the deceased owners of property. Further,

In contrast, Rule 69(a)(1) provides that where a party is seeking to execute a money judgment, “[t]he
procedure on execution—and in proceedings supplementary to and in aid of judgment or execution—
must accord with the procedure of the state where the court is located” unless a federal statute otherwise
applies. Fed. R. Civ. P. 69(a)(1) (emphasis added). Accordingly, federal courts have recognized that
application of Article 5091 is appropriate as a procedural mechanism to aid in the execution of judgment
as expressly authorized by Rule 69(a)(1). See Ware v. Daybrook Fisheries, Inc., No. 14-2229, 2015 WL
7296654, at *2 (E.D. La. Nov. 18, 2015) (citing Urban Resorts Grp. v. Wheeler, No. 82-2470, 1996 WL
28507, at *1 (E.D. La. Jan. 22, 1996); Merrill Lynch, Pierce, Fenner & Smith v. Falgoust, No. 80-4704,
1993 WL 149607, at *1 (E.D. La. May 5, 1993)).
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Plaintiffs have cited no federal authority sanctioning the appointment of an attorney ad litem
under such circumstances.”).3
The Court further concludes that the instant motion to appoint an attorney at law is
untimely as it was not filed prior to the deadline to serve Ochoa as provided by Rule 4(m). This
action was removed on May 10, 2016. Accordingly, at the latest, service on Ochoa was due on
or before August 8, 2016, which is 90 days from the date of removal.4 Plaintiffs did not serve
Ochoa or otherwise move for an appointment of an attorney at law by that date. Even if Article
5091 were applicable in this proceeding, the Court concludes that a plaintiff may not circumvent

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In addition, a recent decision out of the Eastern District of Louisiana questioned the applicability of
Article 5091 in federal proceedings outside of the Rule 69 context:
I know of no reason why Louisiana procedural law, outside of the Rule 69 context, might
apply in this federal court. Because jurisdiction is based on diversity of citizenship,
Louisiana substantive law and federal procedural law apply to these state-law claims. The
Federal Rules of Civil Procedure, not the Louisiana Code of Civil Procedure, govern this
matter. I know of no Federal Rule of Civil Procedure authorizing this court to do what
defendant requests.
Ware, 2015 WL 7296654, at *2 (citations and internal punctuation omitted). While some federal courts
have appointed attorneys at law pursuant to Article 5091 outside of the Rule 69 context, the decisions
located by the Court provide no analysis regarding the applicability of Article 5091 in federal court in
light of the Erie doctrine and the limited availability of state law pursuant to Rule 4(e). See, e.g., Tifco,
Inc. v. American Ins. Agency of the South, No. No. 88-3094, 1989 WL 8838 (E.D. La. Feb. 1, 1989)
(denying motion to dismiss filed by attorney at law); United States v. Ware, No. 09-00099, 2015 WL
6739032, at *3 n.1 (W.D. La. Nov. 4, 2015) (noting appointment of attorney to represent an unopened
succession pursuant to Article 5091 in action proceeding in rem).
4
Several district courts in the Fifth Circuit have held that the 90-day deadline to serve a defendant who
was not served in state court commences at the time of removal, not when the state court petition was
filed. Copeland v. EMC Mortg. LLC, No. 16-159, 2016 WL 7634455, at *5 (S.D. Miss. Dec. 21, 2016)
(“In removed cases, the Rule 4(m) time period starts to run upon removal to the federal district court, not
the date the action was originated in state court.”) (quoting 4B Wright & Miller, Fed. Prac. & Proc. Civ. §
1137 (4th ed.)); Foster v. Rescare, Inc., No. 16-670, 2016 WL 3388387, at *2 (E.D. La. June 20, 2016)
(“[A] plaintiff who does not perfect service of process in state court has 90 days from the date of removal
in which to complete the task.”); Baba Lodging, LLC v. Wyndham Worldwide Operations, Inc., No. 101750, 2011 WL 4346315, at *1 (W.D. La. Aug. 18, 2011) (“In removed cases, the Rule 4(m) time period
starts to run upon removal, not the date the state court petition was filed.”), report and recommendation
adopted, 2011 WL 4346549 (W.D. La. Sept. 15, 2011); see also Washington v. Louisiana, No. 10-261,
2010 WL 3169279, at *3 (M.D. La. Aug. 11, 2010) (“Under [former] Rule 4(m) of the Federal Rules of
Civil Procedure, [the plaintiff] has 120 days from filing of the notice of removal to perfect service on the
individual defendants.”).

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the 90-day service requirement of Rule 4(m) by untimely moving for an attorney at law to serve
in lieu of an absentee defendant. See In re Air Crash at Lexington, Ky., Aug. 27, 2006, No. 06316, 2008 WL 217123, at *2-3 (E.D. Ky. Jan. 25, 2008) (concluding that while state procedural
law authorizing constructive service through the appointment of a “warning order attorney” was
available to the parties pursuant to Rule 4(e)(1), a plaintiff cannot “circumvent or nullify” the
deadlines of Rule 4(m) through a “belated request for a warning order attorney.”).
Given the record, however, the Court will provide Plaintiffs one last opportunity, until
March 17, 2017, to serve Defendant Ochoa with process and file such proof of service into the
record. Failure to do so may result in dismissal of Defendant Ochoa, pursuant to Rule 4, without
further notice.
III.

Conclusion
Based on the foregoing,
IT IS ORDERED that Plaintiffs’ Motion to Appoint Curator (R. Doc. 55) is DENIED.
IT IS FURTHER ORDERED that on or before March 17, 2017, Plaintiffs shall serve

Defendant Ochoa and file proof of service into the record. Failure to do so may result in
dismissal of Defendant Ochoa, without prejudice, pursuant to Rule 4(m) of the Federal Rules of
Civil Procedure.
Signed in Baton Rouge, Louisiana, on February 17, 2017.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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