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Lee v. Offerup, Inc

United States District Court, E.D. Louisiana

March 15, 2018

JACOB DANIEL LEE
v.
OFFERUP, INC.

         SECTION: "S" (5)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE

         IT 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.[1]

         IT 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).

         BACKGROUND

         This 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.

         On February 24, 2017, Plaintiff, Jacob Daniel Lee, [2] 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.

         Lee 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."

         On 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.

         ANALYSIS

         I. Rule 12(b)(4) of the Federal Rules of Civil Procedure - Improper Process

         Rule 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) provides:

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 ...


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