United States District Court, M.D. Louisiana
OMEGA T. PERRY
STRATEGIC REALTY CAPITAL, LLC, ET AL.
RULING ON EX PARTE MOTION TO STRIKE OR RESCIND
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE
the court is an Ex Parte Motion to Strike or Rescind Service
(the “Motion to Strike”) filed by defendants,
Latter & Blum Property Management, Inc. and Strategic
Realty Capital, LLC (collectively,
“Defendants”). Per the Motion to Strike, Defendants
seek to strike or rescind a Process Receipt and Return
directed to “Essie Uman (leasing agent), Latter &
Blum Property Management, 5557 Canal Blvd., New Orleans, LA
70121-7028” (the “Service
December 28, 2017, this court granted Plaintiff's request
to proceed in forma pauperis and ordered that the
“U.S. Marshal Service shall serve the summons and
complaint on the defendant(s) wherever found. Plaintiff(s)
will be required to provide to the United States Marshal a
complete U.S. Marshal Form 285 for each defendant to be
served.” Based on the Service Return, a Summons
directed to Ms. Uman was personally served on Joseph S.
Pappalardo on February 8, 2018. The Service Return was filed into
the record on February 23, 2018.
contend that this Service Return should be stricken or
rescinded because Pappalardo “has no authority to
accept service for Essie Uman.” Defendants explain that
“[a]though Essie Uman was an employee of Latter &
Blum Property Management, Inc., she is not employed there now
and was not employed there when the service was made….
Pappalardo has never been provided by Essie Uman with any
authority to accept service for her and in his capacity as
President of her former employer he is not legally authorized
to accept service or be served on her behalf. Quite simply it
was just a mistake that Pappalardo was
served.” Defendants point out that Ms. Uman
“has a right to file whatever pleadings she personally
deems in her best interest in this lawsuit” and state
that neither Defendant “will file a responsive pleading
or make any filings on her
behalf….” Defendants clarify that while a
“direct challenge” to service should be reserved
to Ms. Uman, they may bring a “collateral
challenge” to the Service Return “so as not to
prejudice any rights of Essie Uman.”
Law and Analysis
Rule of Civil Procedure 4(e)(2) provides that an individual
may be served by doing any of the following: (1) delivering a
copy of the summons and of the complaint to the individual
personally, (2) 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
(3) delivering a copy of each to an agent authorized by
appointment or by law to receive service. Alternatively,
service may be effected pursuant to the laws of Louisiana.
FRCP 4(e)(1). Pursuant to Louisiana law, “[s]ervice of
citation or other process may be either personal or
domiciliary….” La. C.C.P. art. 1231.
“Personal service is made when a proper officer tenders
the citation or other process to the person to be
served.” La. C.C.P. art. 1232. Domiciliary service is
made when a proper officer leaves the citation or other
process at the dwelling house or usual place of abode of the
person to be served with a person of suitable age and
discretion residing in the domiciliary establishment. La.
C.C.P. art. 1234.
is nothing in the record to indicate that Ms. Uman was served
via personal or domiciliary service. Per the Service Return,
the president of Latter & Blum accepted service on Ms.
Uman's behalf. However, Mr. Pappalardo has stated in his
affidavit that he was not authorized to do so and that at the
time of the purported service, Ms. Uman was not an employee
of Latter & Blum. In light of Mr. Pappalardo's
affidavit, in which he states that he was not authorized to
accept service on behalf of Ms. Uman, it does not appear that
the Service Return satisfies F.R.C.P. 4(e)(2)(C).
See, Robertson v. City of Thibodaux, Civil
Action No. 15-1951, 2015 WL 7734095, at * 1 (E.D. La. Nov.
30, 2015) (granting motion to dismiss for insufficient
service of process where “the summons and complaint
were not delivered to [defendant] personally, nor left at his
dwelling or usual place of abode, and because there was no
evidence that [the individual who accepted service] is
[defendant's] authorized agent…”).
undersigned agrees that Ms. Uman's interests are best
protected by ensuring she is properly served with
Plaintiff's suit and given an opportunity to file
whatever pleadings she deems appropriate. Further, ensuring
proper service also protects Plaintiff's ultimate
interests in this suit because proper service or waiver of
service by Ms. Uman is necessary before this court can
proceed with Plaintiff's claims against Ms. Uman.
See, Washington v. Louisiana, Civil Action
No. 11-334, 2013 WL 5350663, at * 1 (M.D. La. Sept. 23, 2013)
(“Proper service of process is a mandatory prerequisite
to file a suit in federal court. Rule 4(c)(1). However, an
individual, corporation, or association that is subject to
service may waive service of summons. Rule 4(d)(1). In
absence of proper service of process, or waiver of service by
the defendant, this court is without jurisdiction over the
defendant and cannot proceed.”). Accordingly, the
undersigned finds that the Service Return for Ms. Uman filed
on February 23, 2018 should be RESCINDED and STRICKEN from
the record. See, Wells v. American Polygraph
Assoc., No. CV-13-607, 2013 WL 4478932, at * 1 (D. Ariz.
Aug. 21, 2013) (granting motion to strike filed proof of
service where proof of service indicated that summons was
served on attorney whom defendant had not authorized to
accept service); Folk v. Prime Care Medical, Civil
No. 3:CV-13-474, 2018 WL 571938, at * 1 (M.D. Pa. Jan. 26,
2018) (“There is no dispute that Dr. Legel was never a
PrimeCare Medical employee and that Ulerick was not
authorized to accept service on Legel's behalf. Since the
alleged failure to properly serve Doctor Legel was in part
due to the Plaintiff's improper identification of said
Defendant as being an employee of PrimeCare the motion to
strike will be granted.”).
reasons set forth herein, the Ex Parte Motion to Strike or
Rescind Service is GRANTED.
IS HEREBY ORDERED that the Process Receipt and
Return directed to “Essie Uman (Leasing Agent), Latter
& Blum Property Management, 5557 Canal Blvd., New
Orleans, LA 70121-7028” (R. Doc. 15) be
STRICKEN from the record.
IS FURTHER ORDERED that Plaintiff shall provide to
the United States Marshal a completed U.S. Marshal Form 285
(attached) with the correct address for Ms. Uman.
IS FURTHER ORDERED that the U.S. Marshal Service
shall serve the summons and ...