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Allen v. Story Logistics, Inc.

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

February 5, 2017





         Before the Court is Defendant Spirit Commercial Auto Risk Retention Group, Inc.'s ("Spirit") motion to dismiss unserved Defendants, Story Logistics, Inc. ("Story Logistics") and Nicholas Gitau ("Gitau"). Record Document 15. Plaintiff Rubbie Allen, Jr. brought this action following a car accident. For the reasons discussed below, Defendant's motion to dismiss the unserved Defendants [Record Document 15] is GRANTED and Defendants Nicholaus Gitau and Story Logistics, Inc. are DISMISSED without prejudice.

         I. Background

         Plaintiff filed suit in state court on February 8, 2016 against Gitau, Story Logistics, and Spirit. Record Document 1-2. Plaintiff then attempted service of process on each defendant by certified mail. The envelope sent to Gitau was returned marked by the Postal Service "Attempted - Not Known.'7 Record Document 18-2. The envelope sent to Story Logistics was returned marked by the Postal Service "Insufficient Address." Record Document 18-3. The Post Office label on each envelope is dated March 23, 2016. Plaintiff apparently made no further attempt at service. The case was removed on April. 12, 2016. Record Document 1. On September 6, 2016, Spirit moved to dismiss the unserved Defendants because the time for service of process had elapsed.[1] Record Document 15. On September 19, 2016, Plaintiff filed a request for issuance of summons as to Gitau and Story Logistics and the Clerk of Court issued summons on the same day. Record Document 17. Story Logistics executed and returned the summons and filed an answer. Record Documents 20, 21. Gitau has not responded.

         II. Discussion

         A. Sufficiency of Service

         Federal Rule of Civil Procedure 4 governs service of process. Rule 4(e)(1) permits service of process by any method allowed by state law in the state where the district court is located. Louisiana permits service 6f process by certified mail on a defendant who resides out of state. La. R.S. 13:3204(A). Louisiana courts have held that "[i]f mailed, the notice must be received by defendant or by a person authorized to receive mail on his behalf/" Administrator of Tulane Educ. Fund v. Ortego, 475 So.2d 764, 764 (La. 1985). A defendant cannot "defeat service of process by refusing to accept a registered letter." Thomas Organ Co, v. Universal Music Co., 261 So.2d 323, 327 (La. Ct. App. 1972). When the plaintiff sends certified mail to a defendant at the correct address, and the defendant simply refuses to accept the package, this is still sufficient service, Id. A defendant cannot defeat service simply because he physically refuses to take the envelope from the carrier.

         By contrast, when there is a defect in the envelope, service is insufficient. For example, when a plaintiff mailed a certified mail envelope that arrived at the defendant's address marked "insufficient postage" and the defendant did not accept it because he thought he would have to pay postage, the Fifth Circuit held that this defect on the envelope resulted in insufficient service. Recreational Properties, Inc. v. Southwest Mortg. Serv. Corp., 804 F.2d 311, 314 (5th Cir. 1986). The court specifically distinguished a defective envelope from a defendant's refusal to "accept a properly addressed, properly postage prepaid envelope." Id.

         This case involves defective envelopes, not a defendant's refusal to accept a properly addressed envelope. Plaintiff does not argue that Gitau or Story Logistics received the certified mail but refused to accept it in an attempt to defeat service. Plaintiff's own exhibits show that the envelopes were returned not by the Defendants but by the Post Office, marked, in Gitau's case, "Attempted - Not Known, " indicating that Gitau was not known at the address on the envelope. Record Document 18-2. Story Logistic's envelope was returned marked "Insufficient Address, " indicating a defect in the address to which it was sent. Record Document 18-3. Moreover, the Post Office label on both envelopes is dated March 23, 2016, well before the time allowed for service had elapsed, and yet Plaintiff apparently made no further attempt at service. This is not sufficient service.

         B. Time for Service

         Rule 4(m) requires that a defendant must be served within 90 days after the complaint is filed.[2] In a removed case, the time for service begins to run from the date of removal, not the date the complaint was filed in state court. Hunt v. Smith, 67 F.Supp.2d 675, 684 (E.D. Tex. 1999); see 4 Wright & Miller, Federal Practice & Procedure, § 1137 (2016). This case was removed on April 12, 2016, giving Plaintiff until July 11, 2016, to effect service. Story Logistics was not served until October 24, 2016, and Gitau still has not been served at ail. Plaintiff's service on both Story Logistics and Gitau is untimely.

         When a plaintiff does not serve a defendant within the required time period, the Court is required to dismiss the case unless the plaintiff shows good cause for the failure. Fed.R.Civ.P. 4(m). The plaintiff bears the burden of demonstrating good cause. Newby v. Enron Corp., 284 Fed.App'x. 146, 149 (5th Cir. 2008). Good cause must rise above "[s]imple inadvertence or mistake of counsel or ignorance of the rules." Id. Plaintiff must demonstrate "good faith.., and some reasonable basis for noncompliance within the time specified." Id. Plaintiff argues that he has good cause: his current counsel did not join the case until August 1, 2016, and Plaintiff's former counsel received a letter from defense counsel, indicating that defense counsel would be representing Spirit, Story Logistics, and Gitau. Record Document 18-4. Plaintiff cites no case law suggesting that either of these reasons qualifies as good cause shown.

         Certainly, defense counsel's letter makes no difference. The letter specifically states that defense counsel is only aware of Spirit having been served, and inquires whether Plaintiff's counsel has any additional information as to service on Gitau and Story Logistics. Record Document 18-4. Plaintiff did not attempt to serve Gitau or Story Logistics by service on defense counsel. ...

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