United States District Court, E.D. Louisiana
J&J SPORTS PRODUCTIONS INC.
BUNDEE'S, INC., ET AL.
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
the Court is defendant Bundee's motion to dismiss for
insufficient service of process. Plaintiff has not properly
served Bundee's and has not shown good cause for its
failure. But because plaintiff's failure to correctly
serve Bundee's is unintentional and has not prejudiced
Bundee's, dismissal is not warranted.
case arises out of a dispute regarding streaming rights to a
boxing match between Floyd Mayweather Jr. and Manny
Pacquiao. Plaintiff J&J Sports Productions is a
distributor of closed circuit pay-per-view
events.Plaintiff alleges that it held the
exclusive rights to distribute the boxing
match. It alleges that defendants Charles Bell
Jr. and Gerald K. Sayles supervised and directed their
employees to broadcast the match unlawfully at a business
operating as Club Continental.
April 2, 2018, plaintiff filed a complaint against Bell,
Sayles, and the business entity Bundee's Inc., d/b/a Club
Continental. Summonses were issued to all three
defendants on April 3, 2018. None was returned executed. On
August 6, 2018, the Court issued a show cause order directing
plaintiffs to show good cause in writing within 20 days why
defendants should not be dismissed for failure to
prosecute. Plaintiff filed a motion to extend the
time for service, which the Court granted. Plaintiff then
made several attempts to serve defendants. First, plaintiff
attempted to serve both Bell and Bundee's at 10953
Chaucer Street on August 10, 2018. Plaintiff then tried to
serve Bell at 238 Solomon Drive on August 21,
2018. Finally, plaintiff attempted to serve
both Bell and Bundee's at 9734 Hayne Boulevard on
September 6, 2018. None of these attempts was successful.
On September 24, 2018, the plaintiff issued a summons to
Bundee's via the Louisiana Secretary of
State. After it was executed by the Secretary
of State, J&J filed it into the record on October 9,
2018. On the same day, plaintiff filed an
executed summons for Sayles. Bell remains
unserved. On April 9, 2019, the Court dismissed
plaintiff's case against Bell without prejudice for
failure to show cause as to why he had not been
has now filed a motion to dismiss for insufficient service of
process under Rule 12(b)(5). Plaintiff opposes the motion,
because it alleges that it attempted to serve Bell,
Bundee's agent for service of process, at three different
addresses unsuccessfully before serving the Louisiana
Secretary of State. It therefore argues that service on the
Secretary of State was proper.
Rule of Civil Procedure 12(b)(5) allows a defendant to
dismiss claims against it because of the plaintiff's
insufficient service of process under Federal Rule of Civil
Procedure 4. Fed.R.Civ.P. 12(b)(5). “The district court
enjoys a broad discretion in determining whether to dismiss
an action for ineffective service of process.”
George v. U.S. Dep't of Labor, 788 F.2d 1115,
1116 (5th Cir. 1986).
Rule 4, a plaintiff must effect proper service on a defendant
within 90 days after filing the complaint. Fed.R.Civ.P. 4(m).
The Rule provides:
If a defendant is not served within 90 days after the
complaint is filed, the court-on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Id. Federal Rule of Civil Procedure 4(h) governs
service on a corporation, partnership, or association. The
Rule provides that corporations must be served in the United
States, either (1) “in the manner prescribed by Rule
4(e)(1) for serving an individual, ” or (2) “by
delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process and- if the agent is one authorized by statute and
the statute so requires-by also mailing a copy of each to the
defendant.” Fed.R.Civ.P. 4(h).
4(e)(1) allows a plaintiff to serve an individual by
“following state law for serving a summons.”
Fed.R.Civ.P. 4(e)(1). In Louisiana, corporations must be
served “by personal service on any one of its agents
for service of process.” La. Code. Civ. P. art 1261.
“Service of process directed to a corporate defendant
and made on one other than the person authorized to accept
service is illegal and without effect.” State v.
Kee Food, Inc., 232 So.3d 29, 34 (La.App. 1 Cir. 2017).
But if the person attempting to make service “certifies
that he is unable, after due diligence, to serve the
designated agent, ” service may be made: (1) by
personal service of an officer or director named in the last
report filed with the Secretary of State; (2) by personal
service on any employee where the business of the corporation
is regularly conducted; or (3) by registered or certified
mail. Id.; La. R. S. 3204. Finally, “[i]f the
officer making service certifies that he is unable, after
diligent effort, to have service made as provided in Article
1261, then the service may be made personally on the
secretary of state, or on a person in his office designated
to receive service of process on corporations.” La.
Code Civ. P. art. 1262. Thus, service may not be made via the
Secretary of State's office under Louisiana law unless a
plaintiff certifies that service cannot be completed using
any of the methods provided in Article 1261.
argues that plaintiff's service on the Secretary of State
was improper because Louisiana law requires personal service
of process on an agent authorized to receive
service. Bell is the only agent authorized to
receive service for Bundee's.
has alleged that service on the Louisiana Secretary of State
was proper because it was not able to serve Bell personally
despite three attempts. This account is corroborated by the
three failed attempts to serve Bell in the
record. But a plaintiff may effect service using
a method other than on the registered agent only when the
process server, not the plaintiff, certifies that he is
unable, after due diligence, to serve the designated agent.
La. Code Civ. P. art 1261. See Rabito v. McClain Invs.,
LLC, So.3d (La.App. 4 Cir. 2019), 2019 WL 302063, at *3
(Jan. 23, 2019) (“Although this Court has never
directly addressed the proper interpretation of the
‘person attempting to make service' we have evinced
an understanding that such person is the process
server.”). The process server has not certified that he
was unable to serve Bell despite diligent effort.
even if the process server had made the required
certification, service on the Secretary of State would not be
proper, unless service could not be made under the
alternative procedures given in Article 1261. See
La. Code Civ. P. art 1262. There is no evidence in the record
that plaintiff attempted to serve Bundee's though the
alternative measures provided in Article 1261. For example,
plaintiff could have personally served Sayles, who was listed
as an officer of Bundee's on the ...