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Riley v. Office of Alcohol & Tobacco Control

United States District Court, E.D. Louisiana

December 19, 2018


          ORDER & REASONS


         Before the Court is defendant Jessica Sparrow's (“Sparrow”) motion[1] to dismiss pro se plaintiff Tracy Riley's (“Riley”) complaint pursuant to Federal Rule of Civil Procedure 12(b)(5).[2] For the following reasons, the motion is granted.


         In July 2018, Riley filed this lawsuit against over 100 individuals and entities.[3]Sparrow moves the Court to dismiss Riley's claims against her for insufficient service of process.[4] 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). 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 Lindsey v. United States R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996); Price v. Hous. Auth. of New Orleans, No. 09-4257, 2010 WL 3802553, at *2 (E.D. La. Sept. 10, 2010) (Vance, J.). However, Rule 4 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).

         To the 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)). In an October 31, 2018 order, the Court explained that it finds such reasoning persuasive and adopted the approach of the foregoing courts.[5] Because Sparrow was named as a defendant in the original complaint, and the original complaint was filed on July 25, 2018, Riley was required to serve Sparrow by no later than October 24, 2018.[6]

         Proof of good cause for failure to effect service “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.'” Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013) (quoting Winters, 776 F.2d at 1306). “Additionally, some ‘showing of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified is normally required.'” Id. If the Court finds good cause, it must extend the time for service. Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996); see also Fed. R. Civ. P. 4(m). If the Court does not find good cause, it may, in its discretion, either extend time for service or dismiss the case without prejudice. Thompson, 91 F.3d at 21; Lindsey, 101 F.3d at 446 n.2.

         “[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).[7] “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)).


         Sparrow contends that she was not properly served in accordance with Rule 4.[8] 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 ...

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