United States District Court, M.D. Louisiana
CHERYL DENHAM, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD J.G.
LINDA RICHARD, INDIVIDUALLY AND IN HER CAPACITY AS A CENTRAL COMMUNITY SCHOOL SYSTEM EMPLOYEE, ET AL.
D. DICK, CHIEF DISTRICT JUDGE
the Court is Linda Richard's Motion for Declaration
of Insufficient Service of Process filed on October
17, 2018. The motion is opposed.
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. The initial Petition only raised state
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.
October 31, 2016, Plaintiff obtained another citation from
the State Court seeking to serve Ms. Richard through her
present counsel, Joseph R. Pousson, Jr. Ms. Richard
represents that Mr. Pousson never made an appearance on her
behalf while the action was pending in the State
Court. There is also no evidence that Plaintiff
sought and obtained a default judgment with respect to Ms.
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. The State Court granted the
motion on July 19, 2018.
23, 2018, Plaintiff obtained another citation from the State
Court for the purpose of serving Ms. Richard through Mr.
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.
October 17, 2018, Ms. Richard filed the instant
Motion. 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).
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,
LAW AND ANALYSIS
Court is authorized to dismiss a civil action for
insufficiency of service of process. “A motion to
dismiss pursuant to Rule 12(b)(5) turns on the legal
sufficiency of the service of process.” The burden of
demonstrating the validity of service when an objection is
made lies with the party making service. 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.
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). 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. Rather, she is seeking
dismissal for failure to serve within the time period
required by Rule 4(m) of the Federal Rules of Civil
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 ...