United States District Court, E.D. Louisiana
ORDER & REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE
the Court is defendants 1st Lake Properties, Inc. (“1st
Lake”) and Brenda Huggett's (“Huggett”)
motion to dismiss pro se plaintiff Byron
Greene's (“Greene”) complaint or,
alternatively, to quash service pursuant to Federal Rule of
Civil Procedure 12(b)(5). For the following reasons, the
motion is granted in part and denied in part.
11, 2018, Greene filed this lawsuit against 1st Lake and
Huggett (collectively, the “defendants”). In his
complaint, Greene alleges that the defendants violated
several of his constitutional rights during his tenancy at an
apartment community in Kenner, Louisiana known as Sugar Mill
West Apartments. 1st Lake is a Louisiana corporation that
operates Sugar Mill West Apartments, and Huggett is the Sugar
Mill West Apartments manager.
16, 2018, the United States Magistrate Judge granted
Greene's motion for leave to proceed in forma
pauperis. Accordingly, the Clerk of Court for the
Eastern District of Louisiana issued summonses for each
defendant, all of which were returned executed by a deputy
United States Marshal on August 17, 2018. See Lindsey v.
United States R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir.
1996) (“Once the in forma pauperis plaintiff
has taken reasonable steps to identity the defendant(s),
‘Rule 4(c)(2) [now 4(c)(3)] and 28 U.S.C. §
1915(c) stand for the proposition that . . . the court is
obligated to issue plaintiff's process to a United States
[m]arshal who must in turn effectuate service upon the
defendants . . . .'”) (emphasis
Rule of Civil Procedure 12(b)(5) permits a court to dismiss a
complaint based on insufficient service of process. “In
the absence of valid service of process, proceedings against
a party are void.” Aetna Bus. Credit, Inc. v.
Universal Decor & Interior Design, 635 F.2d 434, 435
(5th Cir. 1981). “[O]nce the validity of service of
process has been contested, the plaintiff bears the burden of
establishing its validity.” Carimi v. Royal
Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th
Rule of Civil Procedure 4(m) gives plaintiffs 90 days to
effect service on a defendant. If a defendant is not properly
served within 90 days of the filing of the complaint, the
court must dismiss the action or order that service be made
within a specified time. Fed.R.Civ.P. 4(m); see also
Price v. Hous. Auth. of New Orleans, No. 09-4257, 2010
WL 3802553, at *2 (E.D. La. Sept. 10, 2010) (Vance, J.).
However, the rule also provides that, if the plaintiff shows
good cause for his failure, the court must extend the
deadline for effecting service “for an appropriate
period.” Fed.R.Civ.P. 4(m). The plaintiff also bears
the burden of establishing “good cause for failure to
effect timely service.” Systems Signs Supplies v.
United States Dep't of Justice, 903 F.2d 1011, 1013
(5th Cir. 1990).
of process by pro se, [in forma pauperis]
litigants is governed by ‘[s]pecial,' or more
lenient, rules.” Holly v. Metro. Transit
Auth., 213 Fed.Appx. 343, 344 (5th Cir. 2007) (italics
added) (quoting Lindsey, 101 F.3d at
446). “Nonetheless, when the failure of
effective service may be ascribed to the plaintiff's
‘dilatoriness or fault' or ‘inaction,'
the case may be properly dismissed.” Id. at
344-45 (quoting Rochon v. Dawson, 828 F.2d 1107,
1109-10 (5th Cir. 1987)).
4(e) governs service of process on an individual:
Unless federal law provides otherwise, an individual-other
than a minor, an incompetent person, or a person whose waiver
has been filed- may be served in a judicial district of the
United States by:
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to
the individual personally;
(B) leaving a copy of each at the individual's dwelling
or usual place of abode with someone of suitable age and