Trahan v. Melancon et al

Filing 62

REASONS FOR JUDGMENT. For the reasons herein, the 57 Motion to Dismiss is GRANTED. Accordingly, Trahan's claims against Acadian Ambulance Service will be DISMISSED WITHOUT PREJUDICE. Signed by Magistrate Judge Patrick J Hanna on 8/31/2016. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHELBY TRAHAN

*CIVIL NO. 6:14-722

VERSUS

*MAGISTRATE JUDGE HANNA

WAYNE MELANCON, ET AL.

*BY CONSENT OF THE PARTIES

REASONS FOR JUDGMENT
Pending before the Court is the Motion to Dismiss filed by Acadian Ambulance
Service ("Acadian") on August 9, 2016 pursuant to Rules 4(c)(3) and 4(m), FRCP for
improper and untimely service of process and alternatively under and Local Rule 41.3
for failure to prosecute. [rec. doc. 57]. Plaintiff Shelby Trahan, individually and on
behalf of her deceased father Adam James Trahan, ("Trahan"), has filed Opposition.
[rec. doc. 61]. The Motion was set on the Court’s September 27, 2016 motion calendar
with oral argument, in accord with the Court’s routine procedures for handling motions.
For the following reasons, the Motion to Dismiss [rec. doc. 57] is GRANTED.
Accordingly, Trahan's claims against Acadian Ambulance Service will be DISMISSED
WITHOUT PREJUDICE.
PROCEDURAL BACKGROUND
In her First Amended Complaint filed on October 29, 2014, Trahan named
Acadian as a defendant in this action alleging negligence by Acadian personnel for

failing to provide medical care to Adam James Trahan at the scene of the shooting and
instead, after evaluating Mr. Trahan "for less than 10 seconds", rendering medical care
to an officer who suffered a leg injury, thereby resulting in deterioration of Mr. Trahan's
condition and his eventual death. [rec. doc. 20]. Summons was issued by the Clerk on
October 30, 2014. [rec. doc. 21].
On November 11, 2014, plaintiff's counsel filed an Affidavit of Service
consisting of a "Proof of Service" form wherein counsel affirmed that he had
"personally served" Acadian on October 31, 2014 by certified mail to a post office box,
along with a certified mail return receipt signed by David Landry on November 5,
2014. [rec. doc. 24]. That same date, November 11, 2014, the Clerk electronically
made an Administrative Entry stating that the Affidavit of Service had been filed in
error because the summons was returned unexecuted because service within the State of
Louisiana cannot be effected through certified mail.
On July 16, 2015, the municipal defendants filed a Motion for Summary
Judgment seeking dismissal of the lawsuit. [rec. doc. 38]. The Motion was deferred
pursuant to Rule 56(d), FRCP, pending additional discovery. [rec. doc. 44]. Several
status conferences with the Court were held to discuss the progress of discovery. [rec.
docs. 46, 48, 59]. The last such conference occurred on August 9, 2016, at which time
the Court denied the Motion for Summary Judgment without prejudice. [rec. doc. 60].
2

On March 14, 2016, the Clerk issued a Notice of Intent to Dismiss Acadian
pursuant to Local Rule 41.3 for failure to prosecute because service was not made
within 120 days of the institution of the action against Acadian. [rec. doc. 50]. The
Notice advised plaintiff to file a motion for extension of time to effect service within
fourteen days if plaintiff felt that there was good cause for the failure; the Notice further
advised that if no such filing was made, Acadian would be dismissed from the action.
Nine days later, on March 23, 2016, plaintiff filed a "Proposed Summons." [rec.
doc. 51]. That same date, March 23, 2016, the Clerk re-issued summons. [rec. doc.
52]. Acadian was personally served on March 23, 2016 and proof of service was filed
that same date. [rec. doc. 53]. No answer or other responsive pleadings were filed by
Acadian. Moreover, no entry of default was issued.
During the last conference regarding discovery necessary for disposition of the
municipal defendants' Motion for Summary Judgment which occurred on August 9,
2016, the status of plaintiff's claim against Acadian was discussed. Because no answer
or other responsive pleadings had been filed by Acadian and no entry of default had
been issued, the Court advised plaintiff's counsel to take appropriate action to bring
Acadian before the Court or dismiss Acadian from the lawsuit. [rec. doc. 59].
Later that same date, August 9, 2016, Acadian filed the instant Motion to
Dismiss. [rec. doc. 57].
3

LAW AND ANALYSIS
Acadian requests that this action be dismissed without prejudice for untimely
service. More specifically, Acadian argues that because plaintiff failed to serve it
within 120 days of the filing of the Amended Complaint, this case must be dismissed
without prejudice pursuant to Rule 4(m), FRCP.
The record reflects that Trahan did not timely serve Acadian in this action.
Under Rule 4(m), FRCP, the plaintiff had 120 days from the filing of the Amended
Complaint to effect service on Acadian.1 The Amended Complaint was filed on
October 29, 2014. Accordingly, service was due on or before March 1, 2015. It is
undisputed that Acadian was not properly served with the Amended Complaint on or
before March 1, 2015. To the contrary, Acadian was not personally served until over
one year later on March 23, 2016. Therefore, service was untimely under Rule 4(m).
Nevertheless, Rule 4(m) is not inflexible. If good cause is present, the district
court must extend the time for service; if good cause does not exist, the court may, in its
discretion, decide whether to dismiss the case without prejudice or extend time for
service. Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996).

1

At the time the Amended Complaint was filed, Rule 4(m) provided: “If a defendant is not served
within 120 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.”
The Rule has been amended effective December 1, 2015 to provide a 90 day period for effecting
service.

4

In her opposition, plaintiff fails to argue that there was "good cause" to excuse
the delay or to extend the time for service. To the contrary, plaintiff inappropriately
suggests that Rule 4(m) and Local Rule 41.3 required the Court to act, thereby
necessitating a response by the plaintiff. She further argues that her response to the
Court's prompt was appropriate in that she ultimately served Acadian one year and five
months after institution of the lawsuit, without first requesting an extension of time
from the Court to do so. This argument ignores the plaintiff's failure to comply with the
Rules of this Court in the first instance, and that had she done so, the Court would not
have had to take any action whatsoever. Plaintiff further argues that Acadian is
somehow at fault for its failure to file an answer or other responsive pleadings after
service was effected on March 23, 2016. This argument ignores the fact that plaintiff
herself failed to request entry of default by the Clerk, which could have mooted the
necessity of the filing of the instant Motion. Accordingly, the Court concludes that
Trahan has not shown "good cause" to excuse the delay or to extend the time for
service.
While Rule 4(m) also allows the Court to extend the time for service even when a
plaintiff fails to show good cause for the delay, under the circumstances of this case, the
Court declines to do so. See Thompson, 91 F.3d at 21. See also Henderson v. U.S., 116
S.Ct 1638, 1643 (1996). By the Clerk's Administrative Entry, it is clear that as early as
November 11, 2014, less than two weeks after the filing of the Amended Complaint,
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Trahan was on notice that service had not been properly effected on Acadian. Yet,
Trahan took no steps to correct the error, or to otherwise perfect timely service within
the remaining three and one-half months of the 120 day period set forth under Rule
4(m).
It was not until over one year and four months later, on March 23, 2016, and over
one year after the 120 day limitation for service had expired, that the plaintiff
personally served Acadian. However, this service was arguably procedurally improper
given that plaintiff had not been granted an extension of time by the Court to perfect
service on showing of "good cause" for the delay.
For these reasons, Acadian's Motion to Dismiss is granted and Trahan's claims
against Acadian will be dismissed without prejudice.2 A separate Judgment shall issue.
Signed August 31, 2016, at Lafayette, Louisiana.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

2

Because the Court has recommended dismissal of this case under Rule 4(m), it is not necessary
to reach Acadian's argument under Local Rule 41.3.

6