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Denham v. Richard

United States District Court, M.D. Louisiana

February 1, 2019

CHERYL DENHAM, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD J.G.
v.
LINDA RICHARD, INDIVIDUALLY AND IN HER CAPACITY AS A CENTRAL COMMUNITY SCHOOL SYSTEM EMPLOYEE, ET AL.

          ORDER

          SHELLY D. DICK, CHIEF DISTRICT JUDGE

         Before the Court is Linda Richard's Motion for Declaration of Insufficient Service of Process[1] filed on October 17, 2018. The motion is opposed.[2]

         I. BACKGROUND

         On or about August 24, 2015, Plaintiff initiated this action in the 19th Judicial District Court, East Baton Rouge Parish, Louisiana, naming as Defendants Linda Richard, Individually and in Her Capacity as a Central Community School System Employee, Central Community School System, and the fictional entity XYZ Insurance Co.[3] The initial Petition only raised state law claims.

         On August 26, 2015, the Deputy Sheriff attempted to serve Ms. Richard at her place of employment, but the citation was returned unexecuted after a “diligent search and inquiry, ” noting that Ms. Richard had been terminated from her employment on August 22, 2014.[4]

         On October 31, 2016, Plaintiff obtained another citation from the State Court seeking to serve Ms. Richard through her present counsel, Joseph R. Pousson, Jr.[5] Ms. Richard represents that Mr. Pousson never made an appearance on her behalf while the action was pending in the State Court.[6] There is also no evidence that Plaintiff sought and obtained a default judgment with respect to Ms. Richard.

         On July 10, 2018, Plaintiff filed a Motion for Leave of Court to File First Supplemental and Amending Petition for Damages, which sought to assert a new claim under Title VII of the Civil Rights Act of 1964.[7] The State Court granted the motion on July 19, 2018.[8]

         On July 23, 2018, Plaintiff obtained another citation from the State Court for the purpose of serving Ms. Richard through Mr. Pousson.[9]

         On August 3, 2018, Central Community School System removed the action on the basis this Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.[10]

         On October 17, 2018, Ms. Richard filed the instant Motion.[11] Ms. Richard seeks an order stating that she was not properly served prior to removal and that Plaintiff's claims brought against her should be dismissed pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure because Plaintiff has not otherwise served her within the time required by Rule 4(m).

         On January 16, 2019, Plaintiff sought and obtained a summons issued by the Clerk's Office for the purpose of serving Ms. Richard at an address in Denham Springs, Louisiana.[12]

         II. LAW AND ANALYSIS

         The Court is authorized to dismiss a civil action for insufficiency of service of process.[13] “A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency of the service of process.”[14] The burden of demonstrating the validity of service when an objection is made lies with the party making service.[15] When a challenge is made to the adequacy of service of process, the serving party bears the burden of proving the validity of service or the existence of good cause for failing to effect service in a timely manner.[16]

         Plaintiff asserts that the instant motion is “rendered moot” because she requested service within 90 days of the filing of the pleadings as required by Louisiana Civil Code of Procedure article 1201(C).[17] This argument misses the point. Ms. Richard is not seeking dismissal of the claims for untimely request for service of the citation while the action was pending in the State Court.[18] Rather, she is seeking dismissal for failure to serve within the time period required by Rule 4(m) of the Federal Rules of Civil Procedure.[19]

         Turning to the actual issue presented, the Court concludes that Plaintiff has not met her burden of establishing that Ms. Richard has been properly served with process in this action. The record indicates that Plaintiff has not been personally served and that any attempted personal service on Plaintiff at her former place of business prior to removal was not accomplished. Furthermore, Plaintiff has offered no arguments, much less any evidence, that any attempted service on Mr. Pousson prior to removal was made and that any such service was proper pursuant to Louisiana Civil Code of Procedure ...


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