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August v. Brinkhaus

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

June 14, 2018

SHANE PAUL AUGUST
v.
TRISHA BRINKHAUS ET AL.

          REPORT AND RECOMMENDATION

          PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE

         Pending before the court is the motion to dismiss, which was filed on behalf of defendants Child Support Enforcement Agency, Lakarra Williams, and Trisha Brinkhaus. (Rec. Doc. 17). The motion is opposed. (Rec. Doc. 21). The motion was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, this Court recommends that the motion be GRANTED and that the claims asserted by the plaintiff against the Agency, Williams, and Brinkhaus be DISMISSED WITHOUT PREJUDICE.

         Background

         This lawsuit apparently arose out of the pro se plaintiff's experience in Louisiana state court. He asserted claims against the Child Support Enforcement Agency, Lakarra Williams, Trisha Brinkhaus, and others, contending that they violated his Constitutional rights, including his right to due process. He alleged that Williams, Brinkhaus, and the Agency sent income withholding orders to his place of employment in an effort to garnish his wages for the payment of past-due child support without his consent. The plaintiff sued Williams and Brinkhaus in their individual capacities and also in their official capacities. He seeks to recover damages from each of them in the amount of $75, 000 in compensatory damages and $75, 000 in punitive damages. He seeks to recover the same types and amount of damages from the Agency.

         The plaintiff attached to his complaint numerous documents, including an “affidavit of fact” (Rec. Doc. 1-2 at 15-18) in which he took the position that the family court non-support division, the Department of Children & Family Services, and the Child Support Enforcement Section “do not have the judicial power or authority to compel authority over the people.” (Rec. Doc. 1-2 at 15).

         Williams, Brinkhaus, and the Agency responded to the plaintiff's complaint by filing the instant motion to dismiss. They contend that they have not been served with the plaintiff's complaint, and they argued that they are entitled to dismissal of the claims asserted against them by the plaintiff in this lawsuit.

         Analysis

         Rule 4(c) of the Federal Rules of Civil Procedure states that the plaintiff is responsible for having the summons and complaint served on the defendant within the time allowed for service in Rule 4(m) of the Federal Rules of Civil Procedure. Rule 4(1) of the Federal Rules of Civil Procedure states that, unless service is waived, the plaintiff must also submit proof of service to the court.

         Rule 4(m) establishes a ninety-day deadline for effecting service. It states that if a defendant is not served within ninety days after service of the complaint, the court must dismiss the action without prejudice or require the plaintiff to serve the complaint within a designated time frame. If the plaintiff shows good cause for the failure to timely serve the defendant, however, Rule 4(m) requires the court to extend the time for service.

         In this case, the complaint was filed on February 5, 2018, and the ninety-day deadline for effecting service was May 6, 2018. To date, however, no evidence has been placed in the record establishing that the Agency, Williams, or Brinkhaus has been served. Furthermore, in response to the instant motion, the plaintiff did not offer good cause for his delay in serving these defendants. Instead, he reiterated his complaints against the defendants.

         The plaintiff bears the burden of showing good cause for a failure to timely serve a defendant.[1] To establish good cause, the plaintiff must demonstrate something more than excusable neglect; therefore, simple inadvertence, mistake of counsel, or ignorance of the rules does not usually constitute good cause for delayed service.[2] A showing of good faith and a reasonable basis for noncompliance within the time specified are normally required for an extension of the service deadline.[3] In other words, a showing of good faith requires a statement concerning a reasonable grounds for noncompliance within the time specified.[4] Even when a plaintiff fails to show good cause, however, the court has discretion to extend the time for service.[5]

         In this case, the plaintiff filed his complaint on February 5, 2018 (Rec. Doc. 1), and the Clerk of Court issued summonses to the Agency, Williams, and Brinkhaus on February 7, 2018 (Rec. Doc. 5). Along with the summonses, the plaintiff was given notice of Rule 4's requirements.

         The plaintiff is this case is proceeding without the assistance of legal counsel. Because pro se plaintiffs usually lack the skills of trained lawyers, courts liberally construe the pleadings of pro se plaintiffs.[6] However, pro se parties are required to brief their contentions[7] and comply with relevant procedural rules.[8] More than 90 days have passed since the complaint was filed, but the plaintiff has not filed proof of service into the record. In their briefing, the Agency, Williams, and Brinkhaus also represented that they have not been served. The plaintiff has not offered any reason for ...


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