United States District Court, E.D. Louisiana
ORDER & REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE
the Court is defendant Christine Sory's
(“Sory”) motion to dismiss pro se
plaintiff Tracy Riley's (“Riley”) complaint
for insufficient service of process pursuant to Federal Rule
of Civil Procedure 12(b)(5) or, alternatively, to dismiss the
complaint for failure to state a claim for relief pursuant to
Federal Rule of Civil Procedure 12(b)(6). Based on a review
of the record, Sory's motion and attached declaration,
and the applicable law, and considering that Riley has not
filed any opposition to the motion, the Court concludes that
Sory has not been properly served.
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 her failure, the court must
extend the deadline for effecting service “for an
appropriate period.” Fed.R.Civ.P. 4(m). The plaintiff
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).
best of the Court's knowledge, the Fifth Circuit has not
addressed the question of whether the filing of an amended
complaint restarts the 90-day period during which the
plaintiff must effect service. However, other courts have
concluded that, when the plaintiff files an amended
complaint, the service period does not restart as to those
defendants named in the original complaint. Bolden v.
City of Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006);
Carmona v. Ross, 376 F.3d 829, 830 (8th Cir. 2004);
see also UWM Student Ass'n v. Lovell, 888 F.3d
854, 859 (7th Cir. 2018); Warren v. Bituminous Cas.
Corp., No. 13-2354, 2014 WL 348544, at *2 (E.D. La. Jan.
31, 2014) (Milazzo, J.). “This construction of the rule
prevents the plaintiff from repeatedly filing amended
complaints to ‘extend the time for service
indefinitely.'” Bolden, 441 F.3d at 1148
(quoting Del Raine v. Carlson, 826 F.2d 698, 705
(7th Cir. 1987)). The Court finds such reasoning persuasive.
Sory was named in the original complaint and the original
complaint was filed on July 25, 2018, the date by which Riley
was required to serve Sory in accordance with Rule 4 was
October 23, 2018. To date, Riley has not filed an opposition
to Sory's motion to dismiss, and the record does not
indicate that Riley has attempted to re-serve Sory since the
motion was filed. Furthermore, Riley has not offered any
explanation for her failure-meaning the Court has nothing
from which to conclude that Riley has met her burden of
establishing good cause for her failure to properly serve
the Court was inclined to dismiss Riley's claims against
Sory, Sory's counsel has consented to giving Riley an
extension of time to effect service on his
client. Thus, the Court will exercise its
discretion to quash service and provide Riley an additional
21 days from this date during which she must re-serve Sory
properly and file proof of such service into the
IT IS ORDERED that the request to dismiss
the complaint is DENIED.
IS FURTHER ORDERED that the request to quash service
is GRANTED. Tracy Riley shall file proof of
proper service upon Christine Sory into the record no later
than NOVEMBER 21, 2018. Failure to do so
will result in the dismissal of Riley's claims against
 R. Doc. No. 25.
 Riley did file a motion for an
extension of time to serve the defendants in this case on
October 23, 2018-the deadline for serving those defendants
named in the original complaint. R. Doc. No. 89. Sory does
not contest that service has been attempted. The
instant issue is, rather, whether the service that was
effected was valid, and the Court concludes that it was not.
(This comports with Riley's motion for an extension of
time, which claims that “80% of the defendants have
received summons” and requests additional time to
“have the remaining defendants
summoned.” R. Doc. No. 22, at 1 (emphasis added). A
summons was returned executed as to Sory almost a month
before Riley filed her motion.)
 R. Doc. No. 25-1, at 5
(“Plaintiff should likely be given a reasonable period
of time within which to [serve ...