Hart v. Allen et al
Filing
38
RULNG denying 16 Motion to Dismiss for Improper Service and Failure to State a Claim. Plaintiff has 45 days from date of this order to perfect service in accordance with Rule 4(j)(2). Signed by Chief Judge Shelly D. Dick on 11/18/202. (SWE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
RICHARD HART
CIVIL ACTION
VERSUS
21-CV-699-SDD-RLB
MARCUS ALLEN
RULING
Before the Court is the Motion to Dismiss for Improper Service and Failure to State
a Claim1 filed by Defendant, State of Louisiana (“the State”). Plaintiff Richard Hart
(“Plaintiff”) filed an Opposition.2 The State filed a Reply,3 to which Plaintiff filed a Surreply.4 For the following reasons, the Motion5 is denied.
I.
BACKGROUND
The following facts are undisputed. On July 13, 2021, Plaintiff filed a petition for
damages against Captain Marcus Allen (“Allen”) and Major Ray Johnson (“Johnson”),
employees of the Louisiana Department of Public Safety and Corrections (“DOC”), as well
as the State of Louisiana through the DOC, alleging that he suffered multiple injuries from
tortious acts committed by Allen and Johnson. Plaintiff sought relief from Allen and
Johnson in their individual capacities, pursuant to 42 U.S.C. § 1983, and from the State,
pursuant to Louisiana Revised Statutes § 13:5106 and respondeat superior. His petition
1
Rec. Doc. No. 16.
Rec. Doc. No. 23.
3
Rec. Doc. No. 24.
4
Rec. Doc. No. 28.
5
Rec. Doc. No. 16.
2
1
was filed in the 20th Judicial District Court in and for the State of Louisiana East Feliciana
Parish.
At that time, he requested that service be made on the Attorney General, the DOC,
and the Office of Risk Management (“ORM”). However, for “reasons unknown,” the Clerk
of Court did not issue citations to the Attorney General or the DOC. On November 3,
2021, the sheriff tendered service of process, however, without a citation, on ORM.
The action was removed by the State on December 3, 2021.6 Plaintiff contends
that, soon after removal, he discovered that service had not been made on the Attorney
General and ORM.7 On February 16, 2022, Plaintiff sent separate waivers of service to
the Attorney General to sign on behalf of the State, the DOC, and the ORM.8 However,
the Attorney General provided no response and/or declined to waive service.9 On April 8,
2022, more than 90 days after removal, a summons was served on the Attorney General
and filed into the record the same day.10
The State now urges dismissal under Rule 12(b)(5)11 for insufficient service of
process and 12(b)(6) for failure to state a claim. The Court addresses these arguments
in turn.
6
Rec. Doc. No. 1.
Rec. Doc. No. 23, p. 3.
8
Rec. Doc. No. 23-3. Plaintiff also requested that service be waived on Allen and Johnson. On March 3,
2022, Allen and Johnson entered waivers of service. Rec. Doc. No. 11 & 12.
9
Rec. Doc. No. 23-4.
10
Rec. Doc. No. 15.
11
Although Defendant styles his motion as a motion pursuant to Rule 12(b)(4), which governs insufficient
process, it appears that he is in fact challenging service of process under Rule 12(b)(5). See 5B Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedures § 1353 (3d ed.) (“An objection under Rule
12(b)(4) concerns the form of the process rather than the manner or method of its service . . . A Rule
12(b)(5) motion is the proper vehicle for challenging the mode of delivery or the lack of delivery of the
summons and complaint.”) (citations omitted). Therefore, the Court analyzes Plaintiff’s motion pursuant to
Rule 12(b)(5).
7
2
II.
LAW AND ANALYSIS
A. Motion to Dismiss for Improper Service
Rule 12(b)(5) permits a challenge to the plaintiff's method of service or the lack of
delivery of the summons and complaint.12 When service of process is challenged, “the
serving party bears the burden of proving its validity or good cause for failure to effect
timely service.”13
In removal cases, service may be effected before or after removal. The district
court “must look to state law to ascertain whether service was properly made prior to
removal, [although] this does not foreclose service being effected in the district court.”14
If service has been not been effected or was defective before removal to the district court,
“service may be completed, or new process issued in the same manner as in cases
originally filed in such district court.”15
Here, it is undisputed that service was not effected on the State before removal.
Plaintiff avers that on July 13, 2021, he filed a request for service on the State, the ORM,
and the DOC, in the 20th Judicial District Court.16 However, he concedes that “for reasons
unknown,” the Clerk of Court did not issue a citation to the Attorney General or the DOC.17
Only service on the ORM was effectuated prior to the removal of this action.18
Accordingly, the Court must determine whether Plaintiff subsequently completed
process “in the same manner” as in cases originally filed in this Court.”19 Federal Rule of
12
Fed. R. Civ. P. 12(b)(5); Coleman v. Bank of N.Y. Mellon, 969 F. Supp. 2d 736, 745 (N.D. Tex. 2013).
Sys. Signs Supplies v. United States Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990) (per curiam)
(citations omitted).
14
Freight Terminals, Inc. v. Ryder Sys., Inc., 462 F.2d 1046, 1052 (5th Cir. 1972).
15
28 U.S.C. § 1448.
16
Rec. Doc. No. 23, p. 1.
17
Id. at 2.
18
Rec. Doc. No. 16-2.
19
See 28 U.S.C. § 1448.
13
3
Procedure 4 governs service of the summons and complaint. Under Rule 4(j)(2), a plaintiff
that sues a state or state agency must effectuate service of process on the defendant by
(A) “delivering a copy of the summons and of the complaint to its chief executive officer”
or (B) “serving a copy of each in the manner prescribed by that state's law for serving a
summons or like process on such a defendant.” As is clear, Rule 4(j)(2) is disjunctive and
allows service under either method. Additionally, in removal cases, Rule 4(m) requires
that each named defendant be served within 90 days of removal to federal court.20
Here, there is no indication that Plaintiff effected service under option A. The Chief
Executive Officer of Louisiana is the Governor.21 Plaintiff has made no representation that
he served or attempted to serve Governor John Bel Edwards.
Accordingly, Plaintiff must show, under option B, that he served the State of
Louisiana in accordance with State Law.22 The general procedure for service on the State
of Louisiana is found at La. R.S. 13:5107(A)(1), which provides that service and citation
on the State of Louisiana or a state agency may be obtained by citation and service on,
inter alia, the attorney general of Louisiana.23 Further, La. R.S. 39:1538(D) provides that,
when the state or a state agency is named as a defendant in a suit for monetary damages,
“process must be served on the head of the department concerned as well as the Office
of Risk Management and the Attorney General.”24 Thus, Plaintiff was required to serve
20
Rule 4(m) applies equally to removal actions if no service was perfected prior to removal. See, e.g.,
Rojas v. Carrington Mortg. Servs., LLC, No. 7:20-cv-409, 2021 WL 1092303, at *1–2 (S.D. Tex. Mar. 22,
2021) (dismissing the lawsuit under Rule 4(m) because the plaintiffs failed to serve the defendants prior to
or after removal).
21
See Terrebonne Par. NAACP v. Jindal, No. 14-069, 154 F. Supp. 3d 354, 360 (M.D. La. Dec. 8, 2015);
Amir El v. Louisiana State, No. 16-2125, 2016 WL 6563403 (E.D. La., Nov. 4, 2016).
22
Fed. R. Civ. P. 4(j)(2)(B).
23
Service of citation on only the attorney general is sufficient for purposes of R.S. 13:5107(A)(1). Burnett
v. James Construction Group, 10–2608 (La.7/1/11), 66 So.3d 482, 482.
24
Cordova v. LSU Agric. & Mech. Coll. Bd. of Supervisors, 2019 WL 5493355, at *4 (W.D. La. Oct. 24,
2019). See also Whitley v. State ex rel. Bd. of Sup'rs of Louisiana State Univ. Agr. Mech. College, 66 So.
4
process and citation on the Attorney General, the ORM, and the department concerned—
in this case, the DOC.25
Here, Plaintiff concedes that citation was never served on the ORM or the DOC.
Plaintiff maintains that he attempted to serve the DOC with a citation, but the Clerk of this
Court would not issue the citation because the DOC is not a named defendant. Plaintiff
also believed, incorrectly, that Louisiana law did not require service of citation on the
ORM.26 Accordingly, the Court finds that service did not comply with La. R.S. 39:1538
(and consequently, Rule 4(j)(2)(B)) and that proper service on the state has not been
made.
Now the Court must decide whether dismissal is appropriate. The ORM and the
DOC are not named defendants and, thus, do not invoke dismissal under Rule 4(m).27
Further, although Plaintiff failed to comply with La. R.S. 39:1538, that statute “does not
mandate that service of citation be requested within 90 days of filing the petition or that
the failure to do so warrants the dismissal of the action.”28 Indeed, the Louisiana Supreme
Court has held that La. R.S. 39:1538 does not provide for the sanction of dismissal and
any insufficiency under La. R.S. 39:1538 “can be cured by subsequent service on those
3d 470, 480 (La. 2011) (a plaintiff is “at a minimum, required to serve the head of the department concerned,
the office of risk management, and the attorney general).
25
Plaintiff argues that § 39:1538(4) does not require service of citation on the entities listed therein and that
Whitley, 66 So.3d 470 supports this proposition. However, in Mitchell v. Starks, 2021 WL 895801, (M.D.
La. 2021) this Court expressly rejected such an argument. Writing for the Court, Judge Johnson stated that
“§ 39:5138 means service of both the citation and Petition, as is typical in state court” and disagreed that
Whitley eliminated the duty to file a citation. Id. at *2. As Judge Johnson observed: the Whitley Court upheld
the need for citation in noting that the “’objection regarding service of citation under LSA–R.S. 39:1538(4) .
. . was cured by Whitley's subsequent service of citation on the AG and ORM.’” Id. at *2 n.2. (quoting 66
So.3d at 381. Seeing no reason to deviate from this reasoning, the Court maintains that § 39:1538(D)
requires service of process and citation on the AG, the ORM, and the department head.
26
See supra, note 25.
27
Rule 4(m) only applies to named defendants. See Aguirre v. ISC Constructors, LLC, 70 F. Supp. 3d 766,
777 (E.D. Tex. 2014).
28
Whitley, 66 So.3d at 480.
5
entities/persons not previously served.”29 Thus, the Court will give Plaintiff the opportunity
to comply with La. R.S. 39:1538.
Still pushing for dismissal, the State argues that Plaintiff failed to serve the State
through the Attorney General within 90 days of removal and dismissal is therefore
appropriate under Rule 4(m). Plaintiff concedes that service on the Attorney General was
not had until April 8, 2022, roughly a month after the 90-day deadline.30
Rule 4(m) provides that “if a defendant is not served within 90 days after the
complaint filed” or the case is removed,31 the court “must dismiss the action without
prejudice against that defendant or order that service be made within a specified time.”
The Fifth Circuit has held that district courts have broad discretion in determining whether
improper service of process should result in dismissal.32 Even if the plaintiff lacks good
cause, the court has discretionary power to extend the time for service.33
The Court chooses to exercise that discretion here. Specifically, the Court finds
that the State has had actual notice of this lawsuit since removing this action and has not
been prejudiced by the one-month delay in service. Additionally, the record shows that
Plaintiff has proactively sought to serve the State without any periods of significant
inaction. Indeed, within 90 days of removal, Plaintiff timely requested that the State waive
service.34
29
Id. at 482.
Rec. Doc. No. 23, p. 8.
31
When a case is removed, Rule 4(m)’s deadline runs from the date of removal. Hunt v. Smith, 67
F.Supp.2d 675, 684 (E.D. Tex. 1999).
32
Julien v. St. John Baptist Parish School System, 2022 WL 2528234, at *3 (E.D. La. 2022) (citing George
v. U.S. Dep't of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986)).
33
Millan v. USAA General Indem. Co., 546 F.3d 321, 325 (5th Cir. 2008).
34
Rec. Doc. No. 23-3.
30
6
Louisiana law provides that the State, through the Attorney General, has the
authority to waive service on behalf of itself or a state department.35 After removal to this
Court, Plaintiff sent the Attorney General separate waivers of service to sign on behalf of
the State, the ORM, the DOC, and DOC employees Allen and Johnson.36 The Attorney
General provided the following response:37
This response is perplexing. As is clear, the Attorney General only addressed
waiver of service on the DOC and the DOC employees. He did not address whether he
would waive service on behalf of the State or the ORM, even though, once again, Plaintiff
35
See La. R.S. 13:5107(D)(1). Moreover, La. C.C.P. art. 1201(B) provides “[t]he defendant may expressly
waive citation and service thereof by any written waiver made part of the record.”
36
Rec. Doc. No. 23-3.
37
Rec. Doc. No. 23-4.
7
requested that service on those entities be waived. At present, there is no indication that
the State ever responded to those requests.
Further, the Attorney General incorrectly disclaimed “authority” to waive service on
behalf of the DOC. It is true, as the Attorney General acknowledged, that the DOC is not
an individual, corporation, or association that must waive service under Rule 4(d).38
However, the Court discerns nothing in the Federal Rules of Civil Procedure that prohibits
a state or state organization from freely choosing to waive service when in federal court.39
If there is any doubt in this regard, the State’s ability to waive service in Louisiana courts
is brought into the federal courthouse through Rule 4(j)(2)(B), which again, provides for
service in accordance with state law.40 Waiver of service by the Attorney General on
behalf of the State would constitute sufficient service on the State under Rule 4(j)(2)(B).
Ultimately, district courts have the discretionary power to extend the time for
service.41 Here, the Court sees no reason to impose the sanction of dismissal on Plaintiff,
who time and again, has demonstrated a good-faith effort to make service on the State.
Plaintiff initially requested that service be made on the Attorney General, the Department
of Corrections, and the Office of Risk Management, in the 20th Judicial District Court.
However, for “reasons unknown,” the Clerk of Court did not serve the Attorney General
or the DOC (and made service of process, without a citation, to the ORM). By the time
Plaintiff discovered this error, the case had already been removed to federal court. Then,
38
“The plain language of Rule 4(d) does not apply to Rule 4(j).” Judeh v. Louisiana State Univ. Sys., No.
12-1758, 2013 WL 654921, at *2 (E.D. La. Feb. 20, 2013).
39
“[T]he waiver-of-service procedure of subdivision (d) of Rule 4 is not applicable to any of the defendants
enumerated in subdivision (j), but there is nothing to prevent the plaintiff from asking the defendant to accept
service without a fuss.” Woods v. State, Department of Health and Hospitals, 2008–0257 (La.App. 1st
Cir.6/6/08), 992 So.2d 1050, 1057, writ denied, 2008–2426 (La.12/19/08), 996 So.2d 1133 (emphasis
removed) (quoting Rule 4, 28 U.S.C.A., Practice Commentary C4–28).
40
See La. R.S. 13:5107(D)(1).
41
Millan, 546 F.3d. at 325.
8
within 90 days of removal, Plaintiff attempted to serve the State under Rule 4(j)(2)(B) by
sending separate waivers of service to the State, the DOC, and the ORM. However, the
Attorney General ignored the waiver requests on the State and the ORM and improperly
disclaimed “authority” to waive service on the DOC. Two months later, the State filed the
instant Motion asking this Court to dismiss Plaintiff’s claims for insufficient service of
process. The Court will decline the invitation.
The Court retroactively extends the Rule 4(m) deadline to the date of actual service
on the Attorney General, such that service on the Attorney General was timely. Plaintiff
will have 45 days from the date of this order to perfect service of citation on the ORM and
the DOC. Alternatively, within 45 days, Plaintiff may simply choose to serve Governor
John Bel Edwards in accordance with Rule 4(j)(2)(A).42
B. Motion to Dismiss for Failure to State a Claim
In its initial brief, the State sought dismissal under Rule 12(b)(6), believing that
Plaintiff’s claim against the State was based on § 1983. However, the State has
abandoned this argument after Plaintiff clarified that his claim against the State was based
purely on respondeat superior. Accordingly, the 12(b)(6) motion is denied.
III.
CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss for Improper Service
and Failure to State a Claim43 is hereby DENIED. It is ORDERED that Plaintiff has 45
days from the date of this order to perfect service in accordance with Rule 4(j)(2). The
42
Post-removal, a plaintiff only needs to comply with § 39:1538 if they opt to serve the state or state agency
in accordance with state law pursuant to Rule 4(j)(2)(B) of the Federal Rules of Civil Procedure. Johnson
v. City of Monroe, 2022 WL 2382714, at *5 (W.D. La. 2022). Otherwise, he “simply may re-serve the state
and/or its agency by delivering a copy of the summons and the complaint/petition to that entity's chief
executive officer as provided by Rule 4(j)(2)(A), in accordance with Rules 4(a)-(c). Id.
43
Rec. Doc. No. 16.
9
Court strongly encourages the Attorney General to waive service commensurate the “duty
to avoid unnecessary expense” under FRCP 4(d)(1).
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on November 18, 2022.
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
10
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