United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE
IS HEREBY ORDERED that OfferUp, Inc.'s Motion to
Dismiss (Doc. #7) pursuant to Rule 12(b)(5) of the Federal
Rules of Civil Procedure is GRANTED, as to
finding that there was improper service of process. The
motion is DENIED as to finding that there
was improper process under Rule 12(b)(4) of the Federal Rules
of Civil Procedure.
IS FURTHER ORDERED that plaintiff has 60 days from
the date of this Order and Reasons to properly serve the
defendant. If the plaintiff does not do so, this matter will
be dismissed without prejudice pursuant to Rule 4(m).
matter is before the court on a motion to dismiss filed by
defendant, OfferUp, Inc. OfferUp argues that this matter
should be dismissed pursuant to Rules 12(b)(2), 12(b)(4) and
12(b)(5) of the Federal Rules of Civil Procedure for lack of
personal jurisdiction, insufficient process and insufficient
service of process, respectively.
February 24, 2017, Plaintiff, Jacob Daniel Lee,
filed this action against OfferUp alleging a negligence claim
under Louisiana law. OfferUp is incorporated under the laws
of Delaware and maintains its principal place of business in
Washington State. OfferUp provides an app for mobile devices
that is an online garage sale where people buy and sell items
to each other locally.
alleges that on February 26, 2016, some unidentified
assailants used the OfferUp app to lure him to a location in
Harvey, Louisiana where they robbed and shot him. Lee alleges
that OfferUp "created and distributed a software program
for mobile technology that was a critical cause of both [the]
robbery and attempted murder." Lee further alleges that
OfferUp was negligent because it allowed his assailants to
remain anonymous to lure him and cause him harm. Lee claims
that OfferUp purposefully did business in Louisiana by
distributing its app to Louisiana users and that it
"transacted business in and throughout Louisiana."
November 15, 2017, the court ordered that Lee move for entry
of default against OfferUp, or show good cause in writing by
December 6, 2017, of why the matter should not be dismissed
for failure to prosecute. On November 16, 2017, OfferUp filed
a letter with the court in which it explained why it believed
that process and service of process were inadequate. On
December 6, 2017, Lee filed a motion for entry of default.
The next day, OfferUp filed the instant motion to dismiss.
Thereafter, this court denied as moot Lee's motion for
entry of default because OfferUp filed the motion to dismiss.
OfferUp argues that this matter should be dismissed under
Rules 12(b)(2), 12(b)(4) and 12(b)(5) of the Federal Rules of
Civil Procedure for lack of personal jurisdiction,
insufficient process and insufficient service of process,
respectively. Lee has not filed an opposition.
Rule 12(b)(4) of the Federal Rules of Civil Procedure -
12(b)(4) permits a defendant to move to dismiss an action for
defects in the form of the process. Such a motion "is
proper only to challenge non compliance with the provisions
of Rule 4(b)[of the Federal Rules of Civil Procedure] or any
applicable provision incorporated by Rule 4(b) that deals
specifically with the content of the summons." 5B
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure, § 1353 (3d ed.). Rule 4(b)
On or after filing the complaint, the plaintiff may present a
summons to the clerk for signature and seal. If the summons
is properly completed, the clerk must sign, seal and issue it
to the plaintiff for service on the defendant. A summons - or
a copy of a summons that is addressed to multiple defendants
- must be issued for each defendant to be served.
Fed. R. Civ. P. 4(b). Pursuant to Rule 4(a)(1), [a] summons
must: (A) name the court and the parties; (B) be directed to
the defendant; (C) state the name and address of the
plaintiff's attorney or - if unrepresented - of the
plaintiff; (D) state the time within which the defendant must
appear and defend; (E) notify the defendant that a failure to
appear and defend will result in a default judgment against
the defendant for the relief ...