United States District Court, W.D. Louisiana, Monroe Division
NELCINA MOORE ET AL.
SPIRIT COMMERCIAL AUTO RISK RETENTION GROUP ET AL.
G. JAMES, JUDGE
REPORT AND RECOMMENDATION
L. HAYES, MAG. JUDGE
the undersigned Magistrate Judge, on reference from the
District Court, is a motion to dismiss for insufficient
service of process, Fed.R.Civ.P. 12(b)(5) [doc. #3], filed by
Defendants, Spirit Commercial Auto Risk Retention Group
(“Spirit”), Eduard Sirbu, and Orozco Trucking,
Inc. (“Orozco”) (collectively referred to as
“Defendants”). For reasons explained below, it is
recommended that the motion be GRANTED in part and DENIED in
part and that Plaintiffs39; petition against Orozco be
DISMISSED WITHOUT PREJUDICE.
September 22, 2016, Nelcina Moore and Lessel Foster filed the
instant wrongful death and survival action in the Second
Judicial District, Parish of Jackson, Louisiana, against
Defendants. [doc. #1, Exh. 1]. Plaintiffs allege that on
September 22, 2015, Sirbu struck a rental vehicle driven by
Kenyatta Moore, killing her and her two minor children, while
he was driving an 18-wheeler in the course of his employment
as a truck driver with Orozco. Id.
October 21, 2016, Defendants removed the case to federal
court on the basis of diversity jurisdiction, 28 U.S.C.
§ 1332. [doc. #1]. Defendants, via counsel,
simultaneously filed a motion to dismiss for insufficient
service of process. [doc. #3]. Plaintiffs did not file an
opposition, and the undersigned issued a Report and
Recommendation on December 22, 2016, recommending dismissal
without prejudice against all Defendants. [doc. #11]. In an
objection to that Report and Recommendation, Plaintiffs filed
documents reflecting timely service on Spirit and Eduard
Sirbu. [docs. #12, #13]. Accordingly, on January 17, 2017,
the undersigned issued an order vacating the December 22,
2016, Report and Recommendation and requiring Defendants to
file a response addressing the sufficiency of service in
light of the newly supplied service documents by Plaintiffs.
[doc. #17]. Now before the court is Defendants39; response
to that order. [doc. #18].
agree that Eduard Sirbu and Spirit have been timely served,
and both of those defendants have since filed an answer in
this matter. Id. However, defendant Orozco Trucking
Inc. remains unserved. Thus, Orozco now re-asserts and
re-avers its Rule 12(b)(5) Motion to Dismiss for Insufficient
of Service of Process. [doc. #3]. This matter is before the
of the Federal Rules of Civil Procedure provides that a
domestic corporation, partnership, or association (if being
served in the United States) must be served
(A) in the manner prescribed by Rule 4(e)(1) for serving an
(B) by delivering a copy of the summons and of the complaint
to an officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive service
of process and-if the agent is one authorized by statute and
the statute so requires-by also mailing a copy of each to the
defendant . . .
Fed. R. Civ. P. 4(h).
further provides that
[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. But if the plaintiff shows good
cause for the ...