United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE.
the Court on referral from the district judge is an
unopposed Motion To Dismiss for Insufficiency of
Process filed by Defendant, Dillard Department Stores, Inc.
("Dillard") [Rec. Doc. 12] and Defendant's
Supplemental Memorandum in support of its Motion To Dismiss
[Rec. Doc 21]. For the reasons that follow, the Court will
recommend that the Motion be granted.
motion, Dillard contends that Plaintiff, Regina Ceasar,
improperly served Dillard's agent for service of process
in Louisiana by serving an incomplete Summons in December,
2017. Specifically, Dillard states that the Summons which was
served did not include a complaint, court information nor any
information indicating the style or nature of this case. R.
12. Dillard also states that Plaintiff served the defective
Summons on Dillards more than 90 days from the date Plaintiff
s Complaint was filed. Id.
record indicates that Plaintiff filed this case pro
se on August 22, 2017, R. 1, and served Dillard's
agent on December 4, 2017, 117 days after Plaintiff filed her
Complaint, R. 8. Dillard filed the instant motion on March
15, 2018. R. 12. On March 16, 2018, the Court granted
Plaintiffs motion to enroll counsel on her behalf. R. 15.
Also on that date, the Court granted Plaintiffs motion for an
extension. R. 16. Summons to Dillard was reissued and
returned on March 29, 2018. R. 19. On May 1, 2018, Dillard
filed a Supplemental Memorandum to its motion in order to
address Plaintiffs second service of the Summons. R. 21.
Dillard contends in its supplemental memorandum that the
second service of process was defective because an incomplete
Summons was once again served. Specifically, the Complaint
was not included with service. Dillard also contends that the
service remained untimely as it was more than 90 days after
Plaintiffs Complaint was filed. Id. Plaintiffs
counsel did not file any response to Dillard's
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.) ("An
objection under Rule 12(b)(4) concerns the form of the
process rather than the manner or method of its service.
Technically, therefore, a Rule 12(b)(4) motion is proper only
to challenge noncompliance with the provisions of Rule 4(b)
or any applicable provision incorporated by Rule 4(b) that
deals specifically with the content of the summons.)
Rule of Civil Procedure 4(b) provides in pertinent part:
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. . . .
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 plaintiffs 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 demanded in the complaint; (F) be
signed by the clerk; and (G) bear the court's seal."
4(c) states that "[a] summons must be served with a copy
of the complaint. The plaintiff is responsible for having the
summons and complaint served within the time allowed by Rule
4(h) provides that a corporation may be served "by
delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
4(m) requires a plaintiff to serve the summons and complaint
on a defendant within 90 days of filing. Rule 4(m) states
that if service is not made within 90 days, "the
court-on motion or on its own after notice to the
plaintiff-must dismiss the action without prejudice against
that defendant or order that service be made within a
specified time." However, "if the plaintiff shows
good cause for the failure, the court must extend the time
for service for an appropriate period." Id.
"'Good cause' under Rule 4(m) requires 'at
least as much as would be required to show excusable neglect,
as to which simple inadvertence or mistake of counsel or
ignorance of the rules usually does not suffice.'"
Gartin v. Par Pharm. Companies, Inc., 289 Fed.Appx.
688, 692 (5th Cir. 2008) (quoting Lambert v. United
States, 44 F.3d 296, 299 (5th Cir. 1995)). Further,
"courts normally require 'some reasonable basis for
noncompliance within the time specified ... '"
Id. "A litigant's pro se status neither
excuses his failure to effect service nor excuses him for
lack of knowledge of the Rules of Civil Procedure."
Thrasher v. City of Amarillo, 709 F.3d 509, 512 (5th