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Bernard v. Grefer

United States District Court, E.D. Louisiana

June 1, 2015

CATHERINE M. BERNARD, ET. AL.,
v.
JOSEPH GREFER, ET AL., SECTION

ORDER & REASONS

ELDON E. FALLON, District Judge.

Before the Court is Defendant Mobil Exploration & Producing Southeast Inc.'s ("MOEPSI") Motion to Dismiss pursuant to Rule 12(b)(5). (Rec. Doc. 115). Therein, MOEPSI re-urges its earlier Motions to Dismiss. (Rec. Doc. 52 & 82). Having considered the applicable law and the parties' briefs, the Court now issues this order and reasons.

I. BACKGROUND

This case arises out of alleged personal injuries and property damages that resulted from alleged exposure to naturally occurring radioactive material ("NORM"), also known as technologically enhanced radioactive materials ("TERM"), as part of oil operations by various pipe-cleaning defendants. In addition to the pipe-cleaning defendants, Plaintiffs name landowners who owned the land upon which the pipe-cleaning operations were conducted and oil companies as defendants. The Petition asserts claims by approximately 465 Plaintiffs, and they originally filed their claims in the Civil District of Orleans Parish on March 5, 2014. Defendant Transco Exploration Co. removed the case to this Court pursuant to the Class Action Fairness Act. (Rec. Doc. 1). Defendant MOEPSI is named in the original complaint.

MOEPSI filed its first Motion to Dismiss pursuant to rules 12(b)(4) and 12(b)(5) on September 22, 2014. (Rec. Doc. 52). Plaintiffs failed to oppose that motion, and the Court noted this failure during a telephone status conference on November 3, 2014. Subsequent to that Motion, Plaintiffs ultimately filed an amended complaint on December 23, 2014. (Rec. Doc. 76). After Plaintiffs filed their amended complaint, MOEPSI re-urged its Motion to Dismiss. (Rec. Doc. 82). In that motion, MOEPSI stated that it was never served with the original petition, despite the fact that Plaintiffs named them as a defendant therein. Rather, Plaintiffs served Mobil Exploration & Producing U.S., Inc ("MEPUS"), a related but separate corporate entity not named as a defendant in this matter. After filing their amended complaint, Plaintiffs again sought service on MEPUS. MOEPSI averred that it should be dismissed from this action, as it had not been properly served.

Plaintiffs again failed to respond to MOEPSI's motion. The Court thus ordered the Plaintiffs to show cause why the Court should not grant Defendant's unopposed motion and dismiss Plaintiffs' claims against MOEPSI for a failure to prosecute under rule 41(b). (Rec. Doc. 84). The Court gave Plaintiffs until February 19, 2015 to respond, and Plaintiffs responded on that final day. In their response, Plaintiffs explained that one of their three attorneys had been ill and had been unable to timely oppose the motion. (Rec. Doc. 88). Plaintiffs also stressed that MOEPSI would suffer minimal prejudice if the Court afforded Plaintiffs the opportunity to effectuate proper service, as MOEPSI has known about this litigation from its inception. (Rec. Doc. 88).

The Court ordered Plaintiffs to file an opposition to MOEPSI's second Motion to Dismiss on or before March 6, 2015 or the Court would dismiss Plaintiffs' claims against MOEPSI for a failure to prosecute under rule 41(b). Plaintiffs responded by leave of court, arguing that their action should be maintained because MOEPSI had failed to show any prejudice created by the defective service. Plaintiffs argued that because the defect was minor, MOEPSI's motion should be denied.

On March 17, 2015 the Court ordered Plaintiffs to properly serve MOEPSI with the complaint and summons, or to obtain a waiver of service, no later than March 27, 2015. If Plaintiffs failed to effectuate proper service by this date, the Court stated that it would dismiss the action against MOEPSI.

II. PRESENT MOTION (REC. DOC. 115)

This motion signifies MOEPSI's third motion to dismiss for Plaintiffs' failure to effectuate proper service. MOEPSI argues that Plaintiffs have failed to properly serve MOEPSI under Federal Rule of Procedure 4. (Rec. Doc. 115-1 at 4). MOEPSI contends that Article 1261 of the Louisiana Code of Civil Procedure governs service in the instant case. (Rec. Doc. 115-1 at 5). MOEPSI maintains that Plaintiffs failed to effectuate proper service under Article 1261 because Plaintiffs merely requested service on MOEPSI through the Louisiana Secretary of State. (Rec. Doc. 115-1 at 5). MOEPSI avers that a party can only serve a defendant through the Louisiana Secretary of State after the parties "certify[ies] that he is unable, after a diligient effort, to have service made as provided in Article 1261 of the Louisiana Code of Civil Procedure, " and Plaintiffs failed to provide such certification. (Rec. Doc. 115-1 at 5). MOEPSI further argues that Plaintiffs' proof of service filed in the record is deficient. (Rec. Doc. 115-1 at 6).

Plaintiffs did not oppose the motion.

III. LAW & ANALYSIS

A. Dismissal Pursuant to Rule 41(b)

A district court may dismiss an action for failure to prosecute pursuant to Federal Rule ...


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