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Teveras v. Clark

United States District Court, E.D. Louisiana

July 16, 2018


         SECTION “R” (1)



         Before the Court is defendant National Union Fire Insurance Company of Pittsburgh, PA's motion to dismiss for insufficient service of process.[1] The Court denies the motion because plaintiff's delay in service was not sufficiently egregious to satisfy the applicable legal standard for a dismissal that would bar future litigation. See Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 325-26 (5th Cir. 2008).

         I. BACKGROUND

         This case arises out of a motor vehicle collision in St. John the Baptist Parish, Louisiana.[2] Plaintiff alleges that, on November 19, 2016, she was a passenger in a car traveling west on the I-10 highway when her vehicle was hit by a truck driven by defendant Joseph Clark.[3] Plaintiff claims that she suffered personal injuries because of the collision, including neck and back injuries.[4]

         On November 19, 2017, plaintiff filed suit against defendants Clark, Fort Worth Carrier Corporation, and National Union.[5] On November 22, 2017, plaintiff issued a summons to “National Union Fire and Casualty Insurance Company of Pittsburgh, Pennsylvania” through the Louisiana Secretary of State.[6] The summons and complaint were served on the Secretary of State on January 10, 2018.[7] Because plaintiff failed to serve National Union under its correct name-“National Union Fire Insurance Company of Pittsburgh, Pennsylvania”-within the timeframe set forth in the federal rules, the Court issued a Show Cause Order on March 15, 2018, ordering plaintiff to explain in writing within twenty days why National Union was not timely served.[8] Plaintiff first learned of her error from the Court's order.[9] On March 20, 2018, plaintiff asked the Secretary of State to serve the correctly named entity.[10] National Union was properly served on March 26, 2018.[11] On April 12, 2018, National Union moved to dismiss plaintiff's claims under Federal Rule of Civil Procedure 12(b)(5), on the ground that plaintiff failed to timely serve National Union pursuant to Federal Rule of Civil Procedure 4(m).[12]


         Rule 12(b)(5) allows a defendant to dismiss claims against it because of the plaintiff's insufficient service of process under Rule 4. Fed.R.Civ.P. 12(b)(5).

         In pertinent part, Rule 4(m) provides:

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 failure, the court must extend the time for service for an appropriate period.

         Under Rule 4(m), the Court must first determine whether “good cause” exists to extend the time for service. Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). If “good cause” does exist, the Court must extend the time requirement for service of process. Id. “If ‘good cause' does not exist, the Court may, in its discretion, decide whether to dismiss the case without prejudice or extend time for service.” Id. The party responsible for serving process has the burden to show that the service was valid or good cause existed for its failure to serve process properly. Sys. Signs Supplies v. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990); see also Jacob v. Barriere Constr. Co., LLC, No. 08-3795, 2009 WL 2390869, at *3 (E.D. La. July 30, 2009). “The district court enjoys a broad discretion in determining whether to dismiss an action for ineffective service of process.” George v. U.S. Dep't of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986).

         “Good cause” 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. Cos., Inc., 289 Fed.Appx. 688, 692 (5th Cir. 2008) (quoting Lambert v. United States, 44 F.3d 296, 299 (5th Cir. 1995)). Establishing good cause typically requires some evidence of “good faith on the part of the party seeking an enlargement of time and some reasonable basis for noncompliance within the time specified.” Lambert, 44 F.3d at 299. To determine whether “good cause” exists, the Court looks at the actions of the plaintiff that took place within the requisite period of time. Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985).

         But if a dismissal under the discretionary provisions of Rule 4(m) will likely bar future litigation, the dismissal should instead “be reviewed under the same heightened standard used to review a dismissal with prejudice.” Millan, 546 F.3d at 325-26 (citing Boazman v. Econ. Lab., Inc., 537 F.2d 210, 213 (5th Cir. 1976)). Under this heightened standard, dismissal “is warranted only where a clear record of delay or contumacious conduct by the plaintiff exists and a lesser sanction would not better serve the interests of justice.” Id. at 326 (quoting Gray v. Fid. Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981)). When the Fifth Circuit has affirmed dismissals with prejudice, “it has generally found at least one of three aggravating factors: (1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.” Id. (quoting Price v. McGlathery, 792 F.2d 472, 474 (5th Cir. 1986)).

         III. ...

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