United States District Court, M.D. Louisiana
HERMAN CHANDLER, JR., ET AL.
RYDER TRUCK RENTAL, INC., ET AL.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
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.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
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. 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.
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
August 22, 2018, plaintiff filed a Memorandum in Opposition
to the Dismissal of Defendants IBM Transport, LLC, Nathan L.
Johnson and Heberto Balbuena 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. 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.
Motion to Dismiss 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 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.
January 17, 2019, District Judge John W.
deGravelles 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.
filed a Motion and Order for Extension of Time to Perfect
Service of Process stating plaintiff received addresses for
defendants. 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.
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. The Court allowed plaintiff until May 3,
2019 to file proofs of service into the record.
April 10, 2019, plaintiff filed two Affidavits of Non-Service
showing unsuccessful attempts of service on Heberto Balbuena
and Nathan L. Johnson. 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.
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 ...