Beasley v. Lang et al
ORDER denying 39 Motion to Dismiss Signed by Honorable David C. Bramlette, III on 7/31/2017 (EB)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 5:16-cv-82-DCB-MTP
ROBERT LANG, BEVERLY LANG,
AND EF PROPERTIES, LLC
ORDER AND OPINION
This cause is before the Court on defendant EF Properties,
LLC (“EF Properties”)’s Motion to Dismiss (docket entry 39).
Having carefully considered the motion, memoranda, and applicable
statutory and case law, and being otherwise fully informed in the
premises, the Court finds as follows:
In October of 2012, plaintiff Teresa Beasley (“Beasley”)
obtained a judgment against Robert and Beverly Lang (collectively,
“the Langs”) in the Circuit Court of Lincoln County, Mississippi.
According to the plaintiff, that judgment was never satisfied.
Doc. 9, p. 3.
On September 22, 2016, Beasley commenced the present
action in this Court, alleging that the defendants have frustrated
her collection of the judgment by fraudulently transferring their
jointly owned property to Beverly Lang and to EF Properties, a
company owned and controlled by Eduardo Flechas (“Flechas”), the
Langs’ attorney. See Docs. 1, 3, 9.
On November 30, 2016, after Beasley’s complaint was filed but
before process was served
EF Properties, that entity
subsequently served with a copy of the summons and first amended
complaint by and through Flechas on December 1, 2016. See Doc. 15.
The defendant filed its Answer to the amended complaint on December
14, 2016, raising a number of defenses under Federal Rule of Civil
Procedure 12. Doc. 4. Beasley’s second amended complaint was filed
on January 26, 2017.
EF Properties now moves for dismissal based
on, inter alia, insufficient service of process.1
A motion to dismiss for insufficient service of process under
Rule 12(b)(5) turns on the legal sufficiency of the service of
process. Holly v. Metropolitan Transit Authority, 213 F. App’x
343, 344 (5th Cir. 2007).2
When an objection is raised, the party
making service bears the burden of demonstrating its validity. Id.
Rule 4(h)(1) provides two methods by which a limited liability
company (“LLC”) may be served within the United States. Under Rule
4(h)(1)(B), a corporate defendant may be served “by delivering a
1 EF Properties also cites Rule 12(b)(4) and (7) as grounds for dismissal,
but the defendant has presented no argument or authority as to the insufficiency
of process or the plaintiffs’ failure to join certain parties under Rule 19. EF
Properties neglected to file a memorandum brief in support of its motion, and,
in the absence of any meaningful argument on the issues, the Court declines to
speculate as to whether dismissal may be appropriate on these additional
2 “Rule 12(b)(5) is the proper challenge when the wrong party is served
with an otherwise proper Summons and Complaint.” International Fire & Safety,
Inc. v. HC Services, Inc., 2006 WL 2403496, at *1 (S.D. Miss. Aug. 18, 2006).
copy of the summons and complaint to an officer, a managing or
general agent, or any other agent authorized by appointment or by
law to receive service of process . .
..” Fed. R. Civ. P.
4(h)(1)(B). Alternatively, under Rule 4(h)(1)(A), plaintiffs may
serve process in accordance with the law of the state where the
district court is located or where service is made. See Fed. R.
Civ. P. 4(h)(1)(A), (e)(1). Mississippi Rule of Civil Procedure 4
tracks the language of its federal counterpart by providing that
a corporation, partnership, or other unincorporated association
may be served by delivering a copy of the summons and complaint to
“an officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of process.”
Miss. R. Civ. P. 4(d)(4). In Mississippi, a registered agent is an
agent authorized to receive service of process on behalf of the
represented entity. See Miss. Code Ann. § 79-35-13(a).
Regarding service of process upon entities, Section 79-35-13
of the Mississippi Code Annotated also provides that:
(b) If an entity that previously filed a registered agent
filing with the Secretary of State no longer has a
registered agent, or if its registered agent cannot
with reasonable diligence be served, the governors
of the entity will be treated as the entity's agent
for service of process who may be served pursuant to
the provisions of the Mississippi Rules of Civil
Procedure. The names of the governors and the address
of the principal office may be as shown in the most
recent annual report filed with the Secretary of
State. If the governors of the entity cannot with
reasonable diligence be served, service of process
against the entity shall be upon the Secretary of
State in accordance with the Mississippi Rules of
. . . .
(e) Service of process, notice, or demand may be
perfected by any other means prescribed by law other
than this chapter, including provisions in the
organic entity laws3 that provide for service of
process on the Secretary of State in the event that
registration of an organic entity has been canceled,
withdrawn or revoked or the domestic organic entity
has been administratively dissolved or voluntarily
dissolved under the applicable organic entity
Relying on Mississippi Code § 79-35-13(e), EF Properties argues
that service upon an administratively dissolved entity, like the
defendant, must be effected through the Mississippi Secretary of
State; therefore, dismissal is warranted because EF Properties was
improperly served through Eduardo Flechas. The defendant, however,
misinterprets the provision upon which it relies.
While an entity
circumstances, nothing in the state code or relevant procedural
rules appears to identify the Secretary of State as the sole agent
3 “Organic law” is defined as the “statutes, if any, other than this
chapter, governing the internal affairs of an entity.” Miss. Code Ann. § 7935-2(16).
dissolution of a [LLC] does not terminate the authority of the
registered agent of the [LLC].” Miss. Code Ann. § 79-29-831(1).4
Under Section 79-35-13, a Mississippi LLC may be served
through the Secretary of State if the company has no registered
agent or the registered agent cannot be located with reasonable
diligence. See Miss. Code Ann. § 79-35-13(b); see also S & M
Trucking, LLC v. Rogers Oil Co. of Columbia, Inc., 195 So. 3d 217
(Miss. Ct. App. 2016) (finding service of process on LLC through
the Secretary of State to be ineffective because plaintiff failed
to exercise reasonable diligence in locating agent). Yet, neither
of these circumstances are at play here. The plaintiff has produced
a document from the Secretary of State’s website, along with a
copy of EF Properties’ 2015 Annual Report, which lists Flechas as
the sole manager, member, and registered agent of EF Properties.
See Doc. 41-1; Doc. 41-2.
The record also shows that Flechas, in
his capacity as an agent of EF Properties, was personally served
on December 1, 2016. See Doc. 15.
There is no evidence to suggest
registered agent of the EF Properties.
Moreover, the defendant
The statute further provides that “the administrative dissolution of a
[LLC] shall not impair the validity of any contract, deed, mortgage, security
interest, lien or act of such [LLC] or prevent such [LLC] from defending any
action, suit or proceeding with any court of this state.” Miss. Code Ann. § 7929-831(2); see also Columbus Cheer Co. v. City of Columbus, 155 So. 3d 744, 746
(Miss. 2014) (noting that “administratively dissolved corporations continue to
exist regarding agreements established prior to dissolution and for the purposes
of defending the corporation in actions stemming from such agreements”);
Stephens v. Progressive Gulf Ins. Co., 2015 WL 1810182, at *9 (N.D. Miss. April
does not dispute that Flechas was the registered agent or sole
managing agent of EF Properties at the time of its dissolution,
nor does it dispute that Flechas was timely served in his capacity
as an agent of the LLC. Because the plaintiff timely served
Flechas, the registered and managing agent of EF Properties, the
Court finds that service was proper under Rule 4(h)(1)(A) and (B).
IT IS HEREBY ORDERED AND ADJUDGED that defendant’s Motion to
Dismiss (docket entry 39) is DENIED.
SO ORDERED, this the 31st day of July 2017.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE
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