United States District Court, E.D. Louisiana
ORDER AND REASONS
TRICHE MILAZZO UNITED STATES DISTRICT JUDGE.
the Court are Plaintiffs' Motion for Default Judgment
(Doc. 7) and Motion for Cease and Desist Order (Doc. 14) and
Defendant's Motion to Set Aside Default and Motion to
Dismiss (Doc. 11). For the following reasons, Plaintiffs'
Motions are DENIED, and Defendant's Motion is GRANTED.
instant action, Plaintiffs Ernest and Linda Pugh seek damages
in the amount of $10, 000, 000 against Defendant Bank of
America. Though the factual predicate of this claim is not
entirely clear from the Complaint, it appears to center on a
dispute concerning a mortgage on 2232 Oakmere Dr. in Harvey,
Louisiana. Plaintiffs filed a Motion for Entry of Default as
to Bank of America, averring that Bank of America has failed
to answer despite being properly served. Accordingly, the
clerk entered preliminary default against Defendant.
Plaintiffs then filed the instant Motion for Default
Judgment. Defendant has responded with a motion of its own,
arguing that the default should be set aside and the case
dismissed because it has not been properly served.
Alternatively, it moves for dismissal under Rule 12(b)(6). In
response, Plaintiffs filed a Motion for Cease and Desist
Motion to Dismiss for Improper Service
Rule of Civil Procedure 12(b)(5) provides for dismissal of a
claim if service of process was not timely made in accordance
with Federal Rule of Civil Procedure 4 or was not properly
served in the appropriate manner.” “In the
absence of valid service of process, proceedings against a
party are void.” The party responsible for serving has the
burden of showing that service was valid in the face of a
12(b)(5) challenge. Rule 4(m) provides in part:
If 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 failure, the court must extend the time for
service for an appropriate period.
Court faced with a defendant's Rule 12(b)(5) motion to
dismiss for failure to timely serve must undertake a two part
inquiry. First, the Court must determine if the
plaintiff can show “good cause” for its failure
to timely serve. If good cause exists, the Court is required
to extend the 90 day period for service of
process. “If good cause does not exist, the
Court may, in its discretion, decide whether to dismiss the
case without prejudice or extend time for
service.” “The district court enjoys a broad
discretion in determining whether to dismiss an action for
ineffective service of process.”
issue presented in these Motions is whether service has been
properly made on Defendant. If not, the default must be set
aside, Plaintiffs' Motion for Default Judgment must be
denied, and the matter may be subject to dismissal.
Accordingly, the Court first considers the propriety of
argues that it has never been properly served in this matter.
Service on corporate entities is governed by Federal Rule of
Civil Procedure 4(h), which provides, in pertinent part, as
(h) Serving a Corporation, Partnership, or Association.
Unless federal law provides otherwise or the defendant's
waiver has been filed, a domestic or foreign corporation, or
a partnership or other unincorporated association that ...