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Ceasar v. Dillards Department Store

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

May 31, 2018

Ceasar
v.
Dillards Department Store

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE.

         Before the Court on referral from the district judge is an unopposed[1] 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.

         I. Background

         In its 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.

         The 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 supplemental memorandum.[2]

         II. Legal Standards

         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.) ("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.)

         Federal 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."

         Rule 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(m)."

         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 process."

         Rule 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 Cir. 2013).

         III. ...


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