Myers et al v. Progressive County Mutual Insurance Co et al

Filing 20

MEMORANDUM ORDER denying 19 Motion to Appoint Curator. Signed by Magistrate Judge Mark L Hornsby on 2/27/2018. (crt,Keller, J)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RICKY MYERS, ET AL

CIVIL ACTION NO. 17-cv-0663

VERSUS

JUDGE FOOTE

PROGRESSIVE COUNTY MUTUAL
INSURANCE CO., ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Ricky and Amber Myers filed suit in state court to recover personal injury damages
allegedly suffered in connection with an accident. Plaintiffs allege that Mr. Myers had his
car towed by Tommy Jones, whose negligence was responsible for the car rolling off the
tow truck and onto Mr. Myers. Plaintiffs sued Tommy Jones, his employer, and a liability
insurer. The case was removed to federal court based on diversity jurisdiction.
Plaintiffs filed two motions for extension of time to effect service on Tommy Jones.
Both requests were granted. Plaintiffs have now filed a Motion to Appoint Curator (Doc.
19) in which they assert that diligent efforts to serve Mr. Jones have been unsuccessful.
They believe he lives somewhere in Texas, but they do not know so much as the name of
the town in which he lives. There is no affirmative evidence that Jones is avoiding service.
It appear that he simply moved, and Plaintiffs have been unable to find him.
Plaintiffs invoke Federal Rule of Civil Procedure 4(e) and La. C.C.P. art. 5091, and
ask the court to appoint an attorney/curator to represent Tommy Jones on the grounds that
he is an absentee. Plaintiffs’ motion does not cite any authority, beyond the cited rules, for

using this procedure in federal court. The issue was recently reviewed in Lantz v. State
Farm Mutual Auto Ins. Co., 2017 WL 662989 (M.D. La. 2017), and the court concluded
that Art. 5091 is a Louisiana procedural mechanism that falls outside of the “state law for
serving a summons” that is applicable under Rule 4(e)(1). Accordingly, Rule 4(e)(1) does
not authorize the court to apply Louisiana procedural law to aid in service of process on an
absentee tort defendant.
The undersigned is persuaded by the analysis in that decision, so Plaintiffs’ Motion
to Appoint Curator (Doc. 19) is denied. It is also questionable whether due process
would permit entry of a default money judgment against a tort defendant who has no
knowledge of the proceedings and has been served only through delivery of process to a
court-appointed curator. If Plaintiffs have other authority that they believe is persuasive
on this issue, they may renew their request. On the showing made, it must be denied.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 27th day of February,
2018.

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