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Lauderdale v. Caballero

United States District Court, E.D. Louisiana

June 13, 2018

SHELBY LAUDERDALE, ET AL.
v.
JOSE CABALLERO, ET AL.

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion to dismiss pursuant to Rule 12(b)(4) and 12(b)(5) by Jose Caballero and Atlanta Meat Company. For the reasons that follow, the motion is GRANTED.

         Background

         This litigation arises out of an accident in which a Volvo sleeper box truck allegedly struck a Hyundai Sonata, injuring the Sonata's driver and three passengers.

         On May 2, 2016, Shelby Lauderdale was driving his 2005 Hyundai Sonata westbound on Highway 90 in the center lane with Madonna Rogers, Katrice Drawsand, and Derrick Drawsand riding as passengers. Jose Caballero was driving a 2016 Volvo sleeper box truck westbound on I-10 in the lane adjacent to Lauderdale's Sonata. When Mr. Caballero tried to switch lanes, the truck he was driving struck Lauderdale's car. As a result of the collision, Lauderdale and each of his passengers alleges that they suffered injuries: Lauderdale alleges that he suffered cervical strains and aggravation of pre-existing herniated lumbar discs; Rogers alleges that she suffered cervical strains and a herniated lumbar disc; Katrice Drawsand alleges that she sustained a lumber strain and a cervical strain; and Derrick Drawsand alleges that he suffered cervical strains, lumbar strains, and shoulder strain.

         Alleging that Mr. Caballero's negligence in operating the truck caused these injuries to Lauderdale and his passengers, Lauderdale, Rogers, and the Drawsands sued Caballero, along with his employer, Atlanta Meat Company, and Westfield Insurance Company in state court. On April 28, 2017, Westfield Insurance Company removed the lawsuit to this Court, invoking the Court's diversity jurisdiction. Shortly thereafter, Westfield answered the complaint.

         Nearly five months after the lawsuit was filed, neither Jose Caballero nor Atlanta Meat Company had been served. On August 31, 2017, the Court ordered that, by October 2, 2107, the plaintiffs must file the return of service that has been effected on the other defendants, Jose Caballero and Atlanta Meat Company; the Court admonished the plaintiffs that failure to do so would result in the dismissal of the unserved defendants. The next day, Dallas Maughon, Inc., d/b/a Atlanta Meat Company, moved to dismiss the plaintiff's claims against him under Rule 12(b)(4) and (b)(5), arguing that the citation mailed to Atlanta Meat Company was defective in that it was directed to the wrong party; the motion was set for hearing on September 27, 2017. The plaintiffs never responded to the motion. On September 26, 2017, the Court granted Atlanta Meat Company's motion to dismiss for insufficient process. And on October 4, 2017, because the plaintiffs never filed into the record the return of service of process (for either Atlanta Meat Company or Jose Caballero), the Court dismissed without prejudice (for failure to prosecute) the plaintiffs' claims against Jose Caballero. The plaintiffs never challenged the orders dismissing Caballero or Atlanta Meat Company and never filed into the record any service returns.

         On November 30, 2017, the plaintiffs moved to remand their lawsuit to state court. Westfield opposed the motion. On December 21, 2017, the Court denied the plaintiff's motion to remand.[1]After a scheduling conference held with counsel for plaintiffs and counsel for Westfield, the Court issued a scheduling order selecting an August 27, 2018 trial date. When the plaintiffs filed an unopposed[2] motion to amend their complaint, the motion was granted, [3] and summons issued as to Atlanta Meat Company and Jose Caballero on February 15, 2018. But, to this date, no return of service of process has been filed into the record as to these re-added defendants. Jose Caballero and Atlanta Meat Company now move to dismiss the plaintiffs' amended complaint due to insufficient process and insufficient service of process.

         I.

         "Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant." Murphy Bros., Inc. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). “In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant.” Id. (“[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons....”)(citation omitted); see also Aetna Bus. Credit v. Universal Decor, 635 F.2d 434, 435 (5th Cir. 1981)("In the absence of valid service of process, proceedings against a party are void.").

         Federal Rule of Civil Procedure 4(c) governs service of process and obliges the plaintiff to serve the summons and complaint:

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) and must furnish the ...

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