United States District Court, M.D. Louisiana
MAURICE L. SHORTS
JOHN DOE #1, ET AL.
RULING AND ORDER
A. JACKSON, CHIEF JUDGE.
the Court is the Motion to Set Aside Entry of Default and to
Dismiss for Insufficient Service of Process (Doc. 15) by
Defendant Baywater Drilling, LLC, and the Motion for Default
Judgment as to Baywater Drilling (Doc. 16) by Plaintiff
Maurice L. Shorts. Baywater Drilling, LLC seeks to set aside
an Entry of Default (Doc. 14) entered on October 18, 2016,
and to dismiss the claims against them without prejudice,
because Plaintiff failed to properly effect service of
process. (Doc. 15 at p. 1, 6). Plaintiff, proceeding pro
se, has not responded to the motion. For reasons
explained fully herein, the Motion to Set Aside Entry of
Default and to Dismiss for Insufficient Service of Process
(Doc. 15) is GRANTED, and the Motion for Default Judgment as
to Baywater Drilling (Doc. 16) is DENIED.
initiated this action against "Baywater Drilling
Company, " John Doe #1, John Doe #2, and A.B.C.
Insurance, alleging civil rights violations based on his
race. (Doc. 1). No answer or other responsive pleading was
filed, and on October 18, 2016, the Clerk entered the Default
Judgment against Bay water Drilling Company. (Doc. 14).
Notably, the named Defendant "Baywater Drilling
Company" is not a legal entity with the capacity to be
sued. (Doc. 15-1 at p. 4). The actual legal entity that
Plaintiff seeks to sue is Baywater Drilling, LLC.
(Id. at 2).
Drilling, LLC's appointed agent for service of process is
CT Corporation System, located at 3867 Plaza Tower Drive,
Baton Rouge, LA 70816. (Id. at 2). However, after
filing the lawsuit Plaintiff attempted to directly serve
Baywater Drilling, LLC through the United States Marshals
Service, which at Plaintiffs request, personally served
Chelsea Voclain, a receptionist employed by Baywater
Drilling, LLC, 668 South Hollywood Road, Houma, Louisiana,
70360. (Id. at 1-2). Baywater Drilling, LLC seeks to
have the Entry of Default set aside, and have the action
dismissed for insufficient service of process. (Id.
Service of Process was Insufficient
the service of process utilized here was sufficient is
determinative of whether the Court will set aside the Default
and whether the Court will dismiss the case. Here, service of
process was insufficient. "Service on a limited
liability company ("LLC") is governed by the same
rules applicable to corporations." Joe Hand
Promotions, Inc v. Behind The Fence, LLC, No. CV
16-00196, 2016 WL 5416836, at *2 (W.D. La. Aug. 22, 2016).
Rule 4(h)(1)(A) governs service on corporations. Fed.R.Civ.P.
4. Under this rule, there are two ways to properly serve
a corporate defendant can be served in compliance with state
procedure. Fed.R.Civ.P. 4(e)(1)(A). Louisiana law prescribes
that, if the LLC has a designated agent for service of
process, the LLC can be properly served by personal service
on any one of its agents designated for service of process.
La.Code Civ. P. art. 1266(A). However, even though Baywater
Drilling, LLC had a designated agent, Plaintiff failed to
serve the designated agent. (Doc. 15-1 at pp. 2, 5).
the Federal Rules of Civil Procedure indicate that an LLC may
also be served "by delivering a copy of the summons and
of the 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." Fed. R. Civ, P. 4(h)(1)(B).
However, in this case the service was delivered to a
receptionist, who does not fall within any of the categories
listed in the rule. (Doc. 15-1 at p. 5). Since neither of the
methods that the rules prescribe were properly effectuated,
the Court concludes that service of process was improper.
Effect of Improper Service on Motions Sub Judice
the service was improper, the Court must set aside the
Default Judgment and dismiss the action without prejudice.
First, as to the Default, a district court lacks jurisdiction
over a defendant because of improper service of process, and
therefore entry of a default judgment is void and must be set
aside. Rogers v. Hartford Life and Accident Insurance
Co., 167 F.3d 933, 940 (5th Cir. 1999). As a
consequence, the Court must also deny Plaintiffs motion to
confirm the Default Judgment as to Baywater.
as to the motion to dismiss, "[i]f a defendant is not
served within 90 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." Fed.R.Civ.P. 4(m). More than 90 days
have passed since this case was ...