Bey v. Caddo Parish et al

Filing 23

MEMORANDUM RULING re 7 MOTION to Dismiss Gingerbread House. Signed by Chief Judge S Maurice Hicks, Jr on 9/16/2022. (crt,Keifer, K)

Case 5:21-cv-04245-SMH-KDM Document 23 Filed 09/16/22 Page 1 of 4 PageID #: 236

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
URIAH EL BEY

CIVIL ACTION NO. 21-4245

VERSUS

JUDGE S. MAURICE HICKS, JR.

CADDO PARISH JUVENILE COURT,
ET AL.

MAGISTRATE JUDGE MCCLUSKY

MEMORANDUM RULING
Before the Court is a Motion to Dismiss Pursuant to Federal Rules 12(b)(4) and (5)
filed by Defendant, the Gingerbread House Children’s Advocacy Center (“Gingerbread
House”). See Record Document 7. The Gingerbread House seeks dismissal on the
grounds of insufficient process/failure of process and/or insufficient service of
process/failure of service of process. See id. Plaintiff Uriah El Bey filed an opposition; yet,
the opposition appears to address the merits of her claims and does not touch on
insufficient process and/or insufficient service of process. See Record Document 10.1 For
the reasons set forth below, the Gingerbread House’s Motion to Dismiss is GRANTED.
I.

BACKGROUND
Plaintiff Uriah El Bey a/k/a Martha Ruth Smith (“Plaintiff”) filed this suit on December

10, 2021. See Record Document 1. She amended her complaint on December 16, 2021.
See Record Document 3. Although difficult to discern, it appears Plaintiff’s claims arise
out of a child custody matter. She names multiple defendants, including the Gingerbread
House.
On January 5, 2022, an unnamed individual came to the Gingerbread house and left

1

The Court hereby ORDERS that Record Document 10 be sealed, as it contains
sensitive information that should not be part of the public record.

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a copy of a Summons at the front desk. See Record Document 7 at ¶ 1. No complaint was
attached to the Summons. See id. at ¶ 2. The Summons was not served on the
Registered Agent for the Gingerbread House, Jessica Milan Miller. See id.
According to the record, summons were returned executed. See Record Document
6. Plaintiff filed a Proof of Service as to the Gingerbread House on January 5, 2022, which
stated that affiant James Ray Harvey received the summons for the Gingerbread House
on December 23, 2021 and served the summons on the Gingerbread house on January
5, 2022. See Record Document 6-2.
II.

LAW AND ANALYSIS
Again, the Gingerbread House seeks dismissal pursuant to Rule 12(b)(4) and (5) for

insufficient process and insufficient service of process.
A.

Insufficient Process and Insufficient Service of Process.

Rule 12(b)(4) allows a defendant to move for dismissal based on insufficient
process. Rule 12(b)(5) permits a challenge to the method of service attempted by the
plaintiff or to the lack of service. Here, the Gingerbread House seeks dismissal because
no copy of the complaint was attached to the summons, as required by Rule 4(c)(1).
Additionally, pursuant to Rule 4(e)(1) and (2) and 4(h), the summons and a copy of the
complaint were not delivered to a persona authorized to receive service of process for the
Gingerbread House, here Jessica Milan Miller.
The plaintiff bears the burden of proof regarding sufficiency of the process. See
Lechner v. Citimortgage, Inc., 4:09–CV–302–Y, 2009 WL 2356142, at *1 (N.D.Tex. July 29,
2009); see also Fed.R.Civ.P. 4(c). If process is insufficient, then “federal courts have broad
discretion to dismiss an action.” Chapman v. Trans Union LLC, No. CIV.A. H–11–553, 2011
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WL 2078641, at *1 (S.D.Tex. May 26, 2011) (citation omitted). The plaintiff likewise has
the burden to ensure that the defendants are properly served with a summons and a copy
of the complaint. See Fed.R.Civ.P. 4(c)(1); Carimi v. Royal Carribean Cruise Line, Inc.,
959 F.2d 1344, 1346 (5th Cir.1992).
The Court finds that Plaintiff’s service on the Gingerbread House violated Rule
4(c)(1) and Rule 4(e) and (h) because a copy of the complaint was not attached to the
summons and neither the summons nor the complaint were delivered/served on Jessica
Milan Miller. Rule 4(m) provides that “[i]f a defendant is not served within 120 days after
the complaint is filed, the court ... must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.” Ayika v. Sutton, 378
Fed.Appx. 432, 434 (5th Cir. 2010) (per curiam). [W]hen the time to effect service has
expired, the party attempting service has the burden of demonstrating 'good cause' for
failure to serve the opposing party.” Kreimerman v. Casa Veerkamp, 22 F.3d 634, 645 (5th
Cir.1994) (citation omitted); Craddock v. Halverson, No. 7:04-CV-020-R, 2004 WL
2381715, at *1 (N.D.Tex. Oct. 22, 2004); see also Fed.R.Civ.P. 4(m). Here, the 120-day
deadline for serving process has long expired. In her February 15, 2022 opposition,
Plaintiff did not reference or demonstrate “good cause” for her failure to properly serve
process on the Gingerbread House. Further, to date, Plaintiff has submitted no proof that
the Gingerbread House was properly served. Plaintiff has not attempted to demonstrate
good cause for her failure to effect proper service on the Gingerbread House. Nor has she
requested additional time to properly serve the Gingerbread House. Dismissal without
prejudice is therefore proper. See Craddock, 2004 WL 2381715, at *4.
III.

CONCLUSION
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Case 5:21-cv-04245-SMH-KDM Document 23 Filed 09/16/22 Page 4 of 4 PageID #: 239

Based on the foregoing analysis, the Gingerbread House’s Motion to Dismiss
Pursuant to Federal Rules 12(b)(4) and (5) is GRANTED.

Plaintiff’s claims are

DISMISSED WITHOUT PREJUDICE.
An order consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 16th day of September,
2022.

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