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Greene v. 1st Lake Properties, Inc.

United States District Court, E.D. Louisiana

October 31, 2018

BYRON GREENE
v.
1ST LAKE PROPERTIES, INC., ET AL.

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

         Before the Court is defendants 1st Lake Properties, Inc. (“1st Lake”) and Brenda Huggett's (“Huggett”) motion[1] 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.

         I.

         On May 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.[2] 1st Lake is a Louisiana corporation that operates Sugar Mill West Apartments, and Huggett is the Sugar Mill West Apartments manager.[3]

         On May 16, 2018, the United States Magistrate Judge granted Greene's motion for leave to proceed in forma pauperis.[4] 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 omitted).[5]

         II.

         Federal 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 Cir. 1992).

         Federal 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).

         “[S]ervice 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).[6] “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)).

         Rule 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 ...

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