Evans et al v. Johnson et al
MEMORANDUM ORDER GRANTING 43 Motion to Quash service of process on Johnson and American Motor Transportation; DENYING 43 Motion to Dismiss, Motion to Strike 42 Notice; DENYING AS MOOT subsequent 53 Motion to Dismiss, Motion to Quash, Motion to Strike 52 Affidavit. Plaintiffs are allowed until AUGUST 15, 2017 to properly serve the unserved Defendants. The current 41 Scheduling Order is UPSET and case is referred to Magistrate Judge Hayes for scheduling conference to be held after service is properly effected and documented in the record. Signed by Judge Elizabeth E Foote on 7/17/2017. (crt,Crick, S) Modified on 7/18/2017 to modify docket text. (Crick, S).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
TIFFANY EVANS, ET AL.
CIVIL ACTION NO. 16-81
JUDGE ELIZABETH ERNY FOOTE
VERNON JOHNSON, ET AL.
MAGISTRATE JUDGE HAYES
Before the Court is a motion to quash, or in the alternative, a motion to dismiss or
a motion to strike, filed by Defendants Vernon Johnson (“Johnson”) and American Motor
Transportation, Inc. [Record Document 43]. Plaintiffs oppose the motion. [Record
Document 50]. For the reasons discussed below, Defendants’ motion to quash [Record
Document 43] is GRANTED, while the alternative relief sought is DENIED.
On September 14, 2015, Plaintiffs filed suit in Louisiana state court against Johnson,
American Motor Transportation, and National Liability and Fire Insurance Company. Record
Document 1-1. Defendants removed the case to federal court on January 19, 2016, and
noted at that time that while National Liability and Fire Insurance Company had been
properly served, that service on the other two Defendants remained an issue. Record
Document 1, p. 2. Following continuances unrelated to the instant service issue, a jury trial
was set for September 18, 2017, with a pretrial conference scheduled for August 17, 2017.
Record Document 41.
On April 10, 2017, nearly one month before the close of discovery, Plaintiffs’ counsel
filed into the record certified mail receipts, which purported to show that Defendants
Johnson and American Motor Transportation had been properly served in October 2015.
Record Document 42. Defendants Johnson and American Motor Transportation have not
yet filed an Answer to the suit against them. Instead, they quickly filed the instant motion
to quash, asserting that federal and state service requirements have not been satisfied.
Following a review of the record and the jurisprudence, the Court agrees with the
Rule 4 of the Federal Rules of Civil Procedure provides that an individual may be
(1) 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; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
(B) leaving a copy of each at the individual’s dwelling or usual place
of abode with someone of suitable age and discretion who resides
(C) delivering a copy of each to an agent authorized by appointment
or by law to receive service of process.
Fed. R. Civ. P. 4(e). Louisiana law provides that service of process on an individual may be
personal or domiciliary. La. Code Civ. P. art. 1231. Domiciliary service means service left
at the dwelling house or usual place of abode of the person to be served with a person of
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suitable age and discretion residing in the domiciliary establishment. Id. art. 1234.
Rule 4 also provides that a corporation, partnership, or unincorporated association
(if being served in the United States) must be served:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual;1 or
(B) by delivering a copy of the summons and of the complaint to an officer,
a managing or general agent, or any other agent authorized by appointment
or by law to receive service of process and—if the agent is one authorized by
statute and the statute so requires—by also mailing a copy of each to the
defendant . . . .
Fed. R. Civ. P. 4(h).
Rule 4 further provides that
[i]f 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 that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period
Fed. R. Civ. P. 4(m).
Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim if service
of process was not properly served in the appropriate manner.
Gartin v. Par
Pharmaceutical Co., Inc., 289 F. App’x 688, 691 n.3 (5th Cir. 2008) (noting that Rule
12(b)(4) motions concern the form of process, while Rule 12(b)(5) motions challenge the
mode, manner, or lack of delivery).
“In the absence of valid service of process,
proceedings against a party are void.” Aetna Bus. Credit, Inc. v. Universal Decor & Interior
As previously set forth, Rule 4(e)(1) allows for service by “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).
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Design, 635 F.2d 434, 435 (5th Cir. 1981). “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.” Sys. Signs Supplies v. U.S. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir.
Good cause under Rule 4(m) requires “at least as much as would be required to
show excusable neglect, as to which simple inadvertence or mistake of counsel or
ignorance of the rules usually does not suffice.” Thrasher v. City of Amarillo, 709 F.3d 509,
511 (5th Cir. 2013) (internal citation omitted). Additionally, some “showing of good faith
on the part of the party seeking an enlargement and some reasonable basis for
noncompliance within the time specified is normally required.” Id. (citing Winters v.
Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985)).
This case involves defective service on both Johnson, an individual, and American
Motor Transportation, a corporation.2 The Court will address service on American Motor
Transportation first. Under Rule 4(h), there are two methods of serving a corporation: by
following state law or by delivering a copy of the summons and complaint to the officer,
managing or general agent, or any other agent authorized to receive service of process.
Louisiana law provides that service of process on domestic or foreign corporations is made
by personal service on any one of its agents for service of process. La. Code Civ. P. art.
Initially, Defendants complained of several errors in service, including that there
was no affidavit verifying service. Plaintiffs’ counsel has since filed into the record an
affidavit certifying that he sent a “certified true copy of the Petition for Damages” to
both Johnson and American Motor Transportation, at the addresses listed in the
accident report. Record Document 52. The Court will not address the affidavit issue, as
it now appears to be moot.
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1261(A). Article 1261(b) further provides:
If the corporation has failed to designate an agent for service of process, if
there is no registered agent by reason of death, resignation, or removal, or
if the person attempting to make service certifies that he is unable, after due
diligence, to serve the designated agent, service of the citation or other
process may be made by any of the following methods:
(1) By personal service on any officer, or director, or on any person
named as such in the last report filed with the secretary of state.
(2) By personal service on any employee of suitable age and
discretion at any place where the business of the corporation is
(3) By service of process under the provisions of R.S. 13:3204, if the
corporation is subject to the provisions of R.S. 13:3201.
La. Code Civ. P. art. 1261(B).
Here, in response to the instant motion from the Defendants, the Plaintiffs assert
service on American Motor Transportation was properly made by mailing, via certified mail,
a certified copy of the Petition to the address listed for American Motor Transportation on
the accident report. Record Document 50, p. 3. Plaintiffs represent that “[t]he Certified
Mail sent to American Motor at its address listed was signed for by someone, but this writer
is uncertain as to the individual name . . . .” Id. Plaintiffs do not argue that they
attempted service on American Motor Transportation’s authorized agent, as they were
required to under article 1261(A), nor have they asserted compliance with Rule 4, which
allows for service on an officer, a managing or general agent, or any other agent
authorized to receive service of process. Rather, they fully concede-- unapologetically-that they served an unknown person at American Motor Transportation’s business address
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because that was the address they found on the accident report. In essence, Plaintiffs
contend that because they made a “clear attempt to comply with the Louisiana Long Arm
Statute,” any error on their part is immaterial. Id. at 4.
To the contrary, the Court finds that under either acceptable method of service,
Plaintiffs’ service on American Motor Transportation was defective. Plaintiffs have not
provided any cause, much less good cause, for their insufficient service.
Further compounding the problem is that the Plaintiffs’ own filings are internally
inconsistent as to whether they attempted to serve American Motor Transportation with
only the Petition, or the Petition along with the Citation. See Record Documents 50 and
52. This latter issue is the flaw in Plaintiffs’ service on Johnson. The affidavit of service
does not indicate that a copy of the Citation was also served, nor does the docket reflect
this elsewhere. As set forth herein, service of both is required by law.
B. Time for Service
Rule 4(m) requires that a defendant must be served within 90 days after the
complaint is filed. In a removed case, the time for service begins to run from the date of
removal, not the date the complaint was filed in state court. Hunt v. Smith, 67 F. Supp. 2d
675, 684 (E.D. Tex. 1999); see 4 Wright & Miller, Federal Practice & Procedure, § 1137
(2016). Plainly, the 90 day service period has passed.
When a plaintiff does not serve a defendant within the required time period, the
Court is required to dismiss the case unless the plaintiff shows good cause for the failure.
Fed. R. Civ. P. 4(m). The plaintiff bears the burden of demonstrating good cause. Newby
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v. Enron Corp., 284 F. App’x. 146, 149 (5th Cir. 2008). Good cause must rise above
“[s]imple inadvertence or mistake of counsel or ignorance of the rules.” Id. Plaintiff must
demonstrate “good faith . . . and some reasonable basis for noncompliance within the time
As previously mentioned, Plaintiffs have not presented any good cause for their
insufficient service, and in fact, they appear to be operating under the belief that service
was not insufficient. At no point prior to the Defendants’ motion did Plaintiffs ever move
for an extension of time for service. There is no reasonable basis for noncompliance with
the rules of civil procedure.
However, even if good cause is not shown, this Court has the discretion to extend
the time allowed for service. Newby, 284 F. App’x at 149. The Court may appropriately
exercise this discretion when, for example, the statute of limitations would bar a refiled
action, or when the defendant is evading service or conceals a defect in service. Id. Here,
the Court notes that Defendants did not file their motion to quash and/or dismiss until
discovery was about to close, nearly two years after the accident occurred and
approximately fifteen months after they removed the case to federal court. All three
Defendants are represented by the same counsel, and they do not claim to have suffered
any prejudice resulting from insufficient service. However, because they have never filed
an Answer, nor presumably have they participated in the discovery process, the Court will
upset the current scheduling order and allow time for the Plaintiffs to properly serve the
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For the reasons discussed above, Defendants’ motion to quash [Record Document
43], insofar as it requests that service of process on Johnson and American Motor
Transportation be quashed, is GRANTED. The alternative relief sought therein-- the
motion to dismiss and the motion to strike-- is DENIED. Plaintiffs are hereby allowed until
August 15, 2017 to properly serve the unserved Defendants. The current Scheduling
Order [Record Document 41] is hereby UPSET, and this case is referred to Magistrate
Judge Hayes for a scheduling conference to be held after service is properly effected and
documented in the record.
The Defendants’ subsequent motion to dismiss [Record
Document 53], based upon the same grounds discussed herein, is DENIED AS MOOT.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 17th day of July, 2017.
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