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Moore v. Spirit Commercial Auto Risk Retention Group

United States District Court, W.D. Louisiana, Monroe Division

February 3, 2017

NELCINA MOORE ET AL.
v.
SPIRIT COMMERCIAL AUTO RISK RETENTION GROUP ET AL.

          ROBERT G. JAMES, JUDGE

          REPORT AND RECOMMENDATION

          KAREN L. HAYES, MAG. JUDGE

         Before 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 Plaintiffs' petition against Orozco be DISMISSED WITHOUT PREJUDICE.

         Background

         On 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.

         On 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 Defendants' response to that order. [doc. #18].

         Defendants 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 Court.

         Analysis

         Rule 4 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 individual; or
(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).

         Rule 4 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 ...

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