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Myers v. Dhillon

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

January 18, 2018

ELLERY MYERS, ET AL
v.
BHUPINDER SINGH DHILLON

          JAMES JUDGE

          REPORT AND RECOMMENDATION

          MARK L. HORNSBY U.S. MAGISTRATE JUDGE

         Introduction

         Ellery 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.

         Plaintiffs 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.

         Relevant Facts

         The 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.

         After 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.

         After 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.

         With 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.

         Analysis of the Motion

         A. Introduction; Service Rules

         A few 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.

         Service 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 ...


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