United States District Court, E.D. Louisiana
SHELBY LAUDERDALE, ET AL.
JOSE CABALLERO, ET AL.
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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.
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.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 motion to amend
their complaint, the motion was granted,  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.
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
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