United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE
the Court is defendant National Union Fire Insurance Company
of Pittsburgh, PA's motion to dismiss for insufficient
service of process. 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.
case arises out of a motor vehicle collision in St. John the
Baptist Parish, Louisiana. 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. Plaintiff claims that she suffered
personal injuries because of the collision, including neck
and back injuries.
November 19, 2017, plaintiff filed suit against defendants
Clark, Fort Worth Carrier Corporation, and National
Union. 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. The summons and complaint were
served on the Secretary of State on January 10,
2018. 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. Plaintiff first learned of
her error from the Court's order. On March 20, 2018, plaintiff
asked the Secretary of State to serve the correctly named
entity. National Union was properly served on
March 26, 2018. 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
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).
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.
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).
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).
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)).