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Deveer v. St. Tammany Parish Sheriff's Office

United States District Court, E.D. Louisiana

July 9, 2018

DENNIS DEVEER
v.
ST. TAMMANY PARISH SHERIFF'S OFFICE, ET AL.

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE

         Before the Court is a motion to dismiss for insufficiency of service by the Covington Police Department, Covington Police Chief Tim Lentz, Sgt. Shane Maricelli, and Officer Lane Williard Benjamin, II, individually and in their official capacities. For the reasons that follow, the motion is GRANTED.

         Background

         This civil rights litigation arises from a traffic stop effected by Covington Police Department officers.

         On March 24, 2017, Dennis Deveer was stopped in his vehicle by Covington Police Department officers. When the officers arrested him, he alleges, he sat in a hot police car for hours before being transported to St. Tammany Parish Jail. He was arrested and charged with running a stop sign and resisting an officer. But Deveer alleges that he did neither, and that he should have been issued a misdemeanor summons, not arrested and booked at the jail.

         On March 22, 2018, Dennis Deveer, pro se, sued St. Tammany Parish Sheriff's Office, St. Tammany Correctional Center, Covington Police Department, Tim Lentz (individually and in his official capacity as Covington Police Chief), John Christopher Dupuy (individually and in his official capacity as a Deputy of the Covington Police Department), Shane Marcello (individually and in his official capacity as a sergeant of the Covington Police Department), and Lance Williard Benjamin, II (individually and in his official capacity as an officer of the Covington Police Department). Deveer seeks to recover under 42 U.S.C. § 1983 as a result of injuries he says he suffered during the traffic stop. St. Tammany Correctional Center and St. Tammany Parish Sheriff's Office moved to dismiss the claims against them for failure to state a claim; no opposition was filed. On May 29, 2018, the Court granted the motion. The remaining defendants (including Shane Maricelli whom defendants note was incorrectly named in the complaint as Shane Marcello) now move to dismiss the plaintiff's claims for insufficient service and insufficient service of process.[1]

         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 Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)(the Court lacks personal jurisdiction over a defendant unless the defendant has been served with process in accordance with Federal Rule of Civil Procedure 4.); 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 necessary copies to the person who makes service.

         Rule 4(m) provides the time limit for service:

If a defendant is not served within 90 days after the complaint is filed, 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. But if the plaintiff shows good cause for the ...

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