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Evans v. Johnson

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

February 6, 2018

TIFFANY EVANS, ET AL.
v.
VERNON JOHNSON, ET AL.

          Judge HAYES

          MEMORANDUM ORDER

          ELIZABETH E. FOOTE, UNITED STATES DISTRICT JUDGE

         Before the Court is a Federal Rule of Civil Procedure 12(b)(5) motion to dismiss, filed by Vernon Johnson ("Johnson") and American Motor Transportation, Inc. [Record Document 71]. Plaintiffs oppose the motion. [Record Document 73]. For the reasons discussed below, the motion to dismiss is GRANTED, and the claims against Johnson and American Motor Transportation are DISMISSED WITHOUT PREJUDICE.

         I. Background.

         The Court previously set forth the pertinent background in a ruling granting Defendants' motion to quash. See Record Document 59. That motion was premised upon the same issue presented by the instant motion- insufficient service of process. The Court will not revisit those facts here, but rather will outline what has transpired since that ruling was issued.

         In its ruling, the Court allowed Plaintiffs one additional month- until August 15, 2017- to properly serve Johnson and American Motor Transportation. See Id. Plaintiffs failed to timely comply with the Court's order. On August 18, 2017, Johnson and American Motor Transportation filed a motion to dismiss because they had not been served. Record Document 62. On August 22, 2017, Plaintiffs filed an opposition to the motion to dismiss in which Plaintiffs' counsel stated that due to family issues, he had been out of town for much of the month of July and was thus unaware of the Court's August 15 deadline. Plaintiffs' counsel represented that he "did not review the actual order.... [but] was under the impression that he had 120 days to serve the pleading....." Record Document 64, p. 3. Plaintiffs requested an additional month in which to serve Johnson and American Motor Transportation, which this Court granted. Record Documents 64 &. 66. The Court allowed Plaintiffs until September 19, 2017 to effect service, but cautioned that "[n]o further extensions related to service will be granted." Record Document 66.[1] However, once again, Plaintiffs failed to effectuate service, leading Johnson and American Motor Transportation to file another motion to dismiss.

         II. Discussion.

         Rule 4 of the Federal Rules of Civil Procedure provides that an individual may be served by

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e). Louisiana law provides that service of process on an individual may be persona! or domiciliary. La. Code Civ. P. art. 1231. Domiciliary service means service left at the dwelling house or usual place of abode of the person to be served with a person of suitable age and ...


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