United States District Court, E.D. Louisiana
ORDER AND REASONS
Grand Isle Marina Acquisitions, LLC (“GIMA”)
filed a motion to dismiss and set aside entry of default for
improper service. Rec. Doc. 74. Plaintiff filed a response in
opposition. Rec. Doc. 82. Defendant sought, and was granted,
leave to file a reply. Rec. Doc. 89.
Grand Isle Marina Construction, LLC (“GIMC”)
filed a motion to dismiss. Rec. Doc. 71. Plaintiff filed a
response in opposition. Rec. Doc. 81. Defendant sought, and
was granted, leave to file a reply. Rec. Doc.
reasons discussed below, IT IS ORDERED that
defendant Grand Isle Marina Acquisitions, LLC's motion to
set aside entry of default is GRANTED and
defendants GIMA and GIMC's motions to dismiss are
IS FURTHER ORDERED that plaintiff shall show cause
no later than 15 days after issuance of this
Order and Reasons why this Court's prior rulings granting
summary judgment in favor of public co-defendants (Rec. Doc.
70) and private co-defendant Hurricane Hole Management (Rec.
Doc. 80), which found that plaintiff had provided no evidence
to support his claims against any defendant or to demonstrate
that he had suffered damages attributable to defendants,
should not apply to remaining private party defendants.
BACKGROUND AND PROCEDURAL HISTORY
Ralph Badeaux filed his original complaint on May 17, 2017
against defendants Hurricane Hole Management, LLC, Grand Isle
Police Department, Office John Doe 1, Officer John Doe 2,
Town of Grand Isle, and Euris Dubois. Rec. Doc. 1. On January
9, 2018, plaintiff filed his First Amended Complaint, adding
the parties to the instant motions, Grand Isle Marina
Acquisitions, LLC (“GIMA”) and Grand Isle Marina
Construction, LLC (“GIMC”), as defendants. Rec.
filed an executed summons for GIMA into the record on
February 6, 2018 showing that the summons had been left
“at the individual's residence or usual place of
abode with Melba Hargroder” on January 30, 2018. Rec.
Doc. 34 at 5-6. Plaintiff moved for an entry of default
against GIMA on November 20, 2018 because GIMA had not filed
a response, and the Clerk of Court entered default against
GIMA on November 21, 2018. Rec. Doc. 67.
filed an executed summons for GIMC into the record on
December 6, 2018 showing that the summons had been served on
Don Hargroder, Sr. who plaintiff identified as designated by
law to accept service of process on behalf of GIMC, on
December 1, 2018. Rec. Doc. 69.
GIMA filed the instant motion to dismiss and set aside entry
of default pursuant to Federal Rule of Civil Procedure
12(b)(5) for improper service pursuant to F.R.C.P. Rule 4(m),
alleging the summons does not list an address and Melba
Hargroder is not a member, agent, or employee of GIMA. Rec.
Doc. 74. Plaintiff filed a response in opposition, arguing
that the service on Melba Hargroder at Mr. Hargroder's
residence was effective in providing notice and that Mr.
Hargroder avoided service for months prior. Rec. Doc. 82 at
2-3. Defendant GIMC filed the instant motion to dismiss
pursuant to F.R.C.P. 12(b)(5) for improper service pursuant
to Rule 4(m), alleging service was not made until eleven (11)
months after GIMC was named in the amended complaint and
plaintiff has not shown good cause for the failure to timely
make service. Rec. Doc. 71.
Court previously granted summary judgment in favor of
remaining codefendants Town of Grand Isle, Grand Isle Police
Department, Euris Dubois, and Hurricane Hole Management and
dismissed plaintiff's claims against Officer John Doe 1
and Officer John Doe 2. Rec. Docs. 70, 80.
Rule of Civil Procedure 12(b)(5) permits a defendant to move
to dismiss a complaint for insufficient service of process.
Federal Rule of Civil Procedure 4(h)(1) states that a
corporation, partnership, or association in the United States
must be served either by following the relevant state law for
serving a summons, or by delivering a copy of the summons and
complaint to an officer or agent of the company. Fed.R.Civ.P.
4(h)(1). Louisiana state law provides the following options
for service on a domestic limited liability company:
Service of citation or other process on a domestic or foreign
limited liability company is made by personal service on any