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Chandler v. Ryder Truck Rental, Inc.

United States District Court, M.D. Louisiana

June 13, 2019

HERMAN CHANDLER, JR., ET AL.
v.
RYDER TRUCK RENTAL, INC., ET AL.

          NOTICE

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         This matter is before the Court sua sponte regarding Plaintiff's failure to properly serve defendants Nathan L. Johnson and Heberto Balbuena within the time limitations provided by Rule 4(m) of the Federal Rules of Civil Procedure.[1] This action was initiated as the result of a Notice of Removal filed on March 28, 2018 by defendant Great West Casualty Company. The state court pleadings attached to the notice of removal make no mention of service on the above referenced defendants.

         Beginning in May, 2018, the Court continued multiple scheduling conferences due to the lack of service on certain defendants. On July 20, 2018, the instructed plaintiff to show cause as to why the claims against defendants IBM Transport, LLC, Nathan L. Johnson and Heberto Balbuena should not be dismissed under Rule 4(1) and (m) of the Federal Rules of Civil Procedure for lack of service and/or proof of service.[2]

         On August 22, 2018, plaintiff filed a Memorandum in Opposition to the Dismissal of Defendants IBM Transport, LLC, Nathan L. Johnson and Heberto Balbuena[3] requesting additional time to attempt service on the above referenced defendants, stating that certain mailings were returned to sender. The Court gave the plaintiff an additional forty-five (45) days to effect service.[4] The Court also reset the scheduling conference to November 29, 2018 with a status report due by November 15, 2018. This conference was again continued.

         A Motion to Dismiss[5] was filed on December 5, 2018 by defendants IBM Transport, LLC and Heberto Balbuena. The motion states that service was not requested on these two defendants until after the deadline to do so had passed. On December 28, 2018, defendant Nathan L. Johnson filed a Motion to Dismiss[6] claiming dismissal is proper as plaintiff failed to timely effect service. The motion claims that the deadline for plaintiff to serve was October 15, 2018, but service was not received by the Louisiana Secretary of State until October 17, 2018.

         On January 17, 2019, District Judge John W. deGravelles[7] held a telephone conference with the parties. The Motions to Dismiss were denied and plaintiff was given thirty (30) days to submit documentation to the Court regarding service on defendants IBM Transport, LLC, Nathan L. Johnson and Heberto Balbuena.

         Plaintiff filed a Motion and Order for Extension of Time to Perfect Service of Process stating plaintiff received addresses for defendants.[8] On February 18, 2019, summons were returned executed as to defendant IBM Transport, LLC. Plaintiff was given until April 1, 2019 to effect service on defendants Heberto Balbuena and Nathan L. Johnson.[9]

         On April 1, 2019, plaintiff filed another Motion for Extension of Time to File Proof of Service stating proofs of service had not yet been received from the process server.[10] The Court allowed plaintiff until May 3, 2019 to file proofs of service into the record.

         On April 10, 2019, plaintiff filed two Affidavits of Non-Service showing unsuccessful attempts of service on Heberto Balbuena and Nathan L. Johnson.[11] A review of the affidavit pertaining to Heberto Balbuena shows eight attempts to serve with the final indicating the address attempted is not that of defendant Heberto Balbuena. With regard to the affidavit pertaining to Nathan L. Johnson, the document indicates there were two attempts at calling Nathan L. Johnson and one attempt at serving him at an address in North Carolina.

         As of June 12, 2019, the record shows no indication that plaintiff has attempted to serve defendants Heberto Balbuena and Nathan L. Johnson since summons were returned unexecuted on April 10, 2019. There is no ...


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