United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. HORNSBY U.S. MAGISTRATE JUDGE
Myers and Nichole Myers, a minor, were passengers in a Honda
Civic that was involved in an accident with a tractor-trailer
rig on Interstate 49. The tractor-trailer allegedly struck
the Honda and caused it to veer from the road and turn over a
number of times, resulting in a broken back for Ellery Myers
and other personal injuries.
filed suit in state court, and the case was removed based on
diversity jurisdiction. Plaintiffs did not, despite a
reminder from the court, make timely service, and their
complaint was dismissed. They filed a request for
reinstatement, based on an affidavit of service, and it was
granted. Now before the court is a Motion to Quash
Service/Process (Doc. 22) filed by two of the defendants. For
the reasons that follow, it is recommended that the motion be
granted and that Plaintiffs be allowed one final opportunity
to effect valid service in this case.
state court petition named three defendants: (1) Bhupinder
Singh Dhillon (truck driver), (2) Chauhan Carrier, Inc.
(trucking company), and (3) American Continental Insurance
Company (truck insurer). Defendants pointed out in their
notice of removal that the actual insurer was Redwood Fire &
Casualty Insurance Company. The notice of removal stated that
there were indications in the state court record that
Plaintiffs had requested service, but there was no evidence
that any service had been completed.
the case was removed, Defendants filed a motion to dismiss
the claims of the minor Nichole Myers on the grounds that she
did not have the proper procedural capacity. Plaintiffs cured
this by filing an amended complaint to name as a plaintiff
Ellery Myers, in his capacity as natural tutor of the child.
Despite more than one representation in the record that
Redwood Fire & Casualty was the proper insurer of the truck,
the amended complaint continued to list American Continental
Insurance Company as the only insurer defendant. Doc. 13.
the case had been pending for about four months with no
indication of service, the Clerk of Court issued a notice of
intent to dismiss (Doc. 14) that allowed Plaintiffs 14 days
to file a motion for extension of time to make service. The
order warned that the civil action could be dismissed if no
action was taken. Almost a month passed with no action by
Plaintiffs, so the Clerk of Court entered an order of
dismissal (Doc. 15) that allowed a request for reinstatement
within 30 days for good cause shown.
the 30-day deadline approaching, Plaintiffs filed a motion to
reinstate and represented that actions had been taken to
effect proper service on Chauhan Carrier, Inc. and Redwood
Fire & Casualty. Judge James granted the request for
reinstatement on November 2, 2017 and ordered that Plaintiffs
make service on defendant Bhupinder S. Dhillon within 45
days, failing which the court would dismiss the claims
against Dhillon. Doc. 21. More than 60 days have passed, but
there is no indication that Plaintiffs have served Dhillon.
of the Motion
Introduction; Service Rules
days after the case was reinstated, Chauhan Carrier, Inc. and
Redwood Fire & Casualty filed the Motion to Quash Service
that is before the court. They challenge the validity of the
efforts to serve them. “When service of process is
challenged, the serving party bears the burden of proving its
validity or good cause for failure to effect timely
service.” Systems Signs Supplies v. U.S. Dept. of
Justice, 903 F.2d 1011, 1013 (5th Cir. 1990). Plaintiffs
were provided an opportunity to respond to the Motion to
Quash and meet the burden, but they have not filed anything.
in federal court is governed by Federal Rule of Civil
Procedure 4. The plaintiff may request that a defendant waive
service, and the rule imposes a duty on the defendant to
avoid the unnecessary expenses of service and grant the
requested waiver. There is ...