United States District Court, E.D. Louisiana
ORDER & REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE
the Court is defendant Jessica Sparrow's
(“Sparrow”) motion to dismiss pro se
plaintiff Tracy Riley's (“Riley”) complaint
pursuant to Federal Rule of Civil Procedure
12(b)(5). For the following reasons, the motion is
2018, Riley filed this lawsuit against over 100 individuals
and entities.Sparrow moves the Court to dismiss
Riley's claims against her for insufficient service of
process. 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).
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.).
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. 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.
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.
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)).
contends that she was not properly served in accordance with
Rule 4. Rule 4(e) governs service of process on an
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