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Badeaux v. Grand Isle Marina Construction, LLC

United States District Court, E.D. Louisiana

April 18, 2019

RALPH BADEAUX
v.
GRAND ISLE MARINA CONSTRUCTION, LLC, ET AL.

         SECTION “B” (5)

          ORDER AND REASONS

         Defendant 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.

         Defendant 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. 82.[1]

         For the 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 DISMISSED.

         IT 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.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Plaintiff 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. Doc. 21.

         Plaintiff 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.

         Plaintiff 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.

         Defendant 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.

         This 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.

         LAW AND ANALYSIS

         Federal 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:

         A. Service of citation or other process on a domestic or foreign limited liability company is made by personal service on any ...


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