United States District Court, E.D. Louisiana
DR. RON CEASAR
PEDESTAL BANK; PRESIDENT/C.E.O PEDESTAL BANK
ORDER & REASONS
W. ASHE, UNITED STATES DISTRICT JUDGE.
the Court is a motion to dismiss for insufficient service of
process filed by defendant Pedestal Bank
(“Pedestal”),  to which plaintiff Dr. Ron Ceasar
(“Ceasar”) responds in opposition,  and in further
support of which Pedestal replies. Also before the Court is
Ceasar's motion to strike statement in Pedestal's
motion to dismiss. Having considered the parties'
memoranda and the applicable law, the Court issues this Order
November 9, 2018, Ceasar filed this suit against Pedestal and
its unnamed “President/C.E.O.” alleging that he
was harmed by Pedestal's applying its overdraft policy in
a discriminatory manner. Ceasar attempted to serve process on
Pedestal and its president by mailing a copy of the complaint
to Pedestal's president. Pedestal filed the instant motion
to dismiss arguing that both it and its president were not
properly served with process. Ceasar argues that Pedestal's
motion is a waste of the Court's time because Pedestal
obviously has notice of the suit and, therefore, proper
service of process is not required.
LAW & ANALYSIS
Insufficient Service of Process
12(b)(5) of the Federal Rules of Civil Procedure permits a
defendant to move to dismiss a complaint for improper service
of process. “A Rule 12(b)(5) motion is the proper
vehicle for challenging the mode of delivery or the lack of
delivery of the summons and complaint.” 5B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1353 (3d ed.).
4(c) of the Federal Rules of Civil Procedure states that
service of process can be made by “[a]ny person who is
at least 18 years old and not a party.” Cesasar, who is
a party, cannot serve the defendants himself. Therefore,
service has not been properly effectuated.
to Rule 4(m) of the Federal Rules of Civil Procedure,
“[i]f a defendant is not served within 90 days after
the complaint is filed, the court ... 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. “‘Good cause' under Rule 4(m)
requires ‘at least as much as would be required to show
excusable neglect, as to which simple inadvertence or mistake
of counsel or ignorance of the rules usually does not
suffice.'” Gartin v. Par Pharm. Cos., 289
Fed.Appx. 688, 692 (5th Cir. 2008) (quoting Lambert v.
United States, 44 F.3d 296, 299 (5th Cir. 1995)).
Further, “courts normally require ‘some showing
of good faith on the part of the party seeking an enlargement
and some reasonable basis for noncompliance within the time
specified.'” Id. (quoting
Lambert, 44 F.3d at 299).
is proceeding pro se. However, “[a]
litigant's pro se status neither excuses his
failure to effect service nor excuses him for lack of
knowledge of the Rules of Civil Procedure.”
Thrasher v. City of Amarillo, 709 F.3d 509, 512 (5th
Cir. 2013). A pro se litigant who fails to comply
with procedural rules has the burden of establishing
excusable neglect, which is a strict standard requiring more
proof than mere ignorance. Kersh v. Derozier, 851
F.2d 1509, 1512 (5th Cir. 1988); Bird v. Estelle,
660 F.2d 592, 593 (5th Cir. 1981). Ceasar, who has experience
as a pro se plaintiff, has not attempted to
demonstrate excusable neglect. Therefore, dismissal without
prejudice is appropriate.
IT IS ORDERED that Pedestal's motion to dismiss is
FURTHER ORDERED that Ceasar's motion to strike is