United States District Court, W.D. Louisiana, Shreveport Division
RUBBIE ALLEN, JR.
STORY LOGISTICS, INC., ET AL
HORNSBY MAGISTRATE JUDGE.
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE.
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
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. 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.
Sufficiency of Service
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.
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.
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.
Time for Service
4(m) requires that a defendant must be served within 90 days
after the complaint is filed. 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.
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.
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. ...