United States District Court, E.D. Louisiana
ORDER AND REASONS
MARYANN VIAL LEMMON UNITED STATES DISTRICT JUDGE
IS HEREBY ORDERED that defendant Carewell
Hospitality, LLC's ("Carewell's")
Motion to Vacate Default Entry or Alternatively,
Motion to Dismiss Complaint (Rec. Doc. 9) is
GRANTED, and the entry of default is
2, 2018, plaintiff Brett Louviere filed suit against
Carewell. As of that date, Carewell's registered agent
for service of process was Chintu Patel. However, on
September 14, 2018 Chintu Patel died. On September 24, 2018,
Chintu Patel's wife, Pinku Patel, filed a Notice of
Change with Secretary of State listing herself as the
registered agent for Carewell. On October 30, 2018, nearly
four months after filing suit, Louviere's attorney gave
the summons and complaint to a process server, requesting
service on Chintu Patel. At that point in time, public
records had reflected for over a month that Pinku Patel was
Carewell's registered agent.
agent Callahan Wigley attempted to serve the late Chintu
Patel on November 5, 2018, but was told by an employee of
Carewell that “Chintu Patel passed away.” After
learning of Chintu Patel's death, Louviere's attorney
instructed Wigley to make another attempt to serve Chintu
Patel on November 8, 2018, which was also unsuccessful. On
November 12, 2018, another process server, Timothy Couch,
delivered the service pleadings to a man named “Hadi,
” who Couch believed to be an employee of Carewell.
Carewell has provided the affidavit of Pinku Patel, averring
that Carewell has never had an employee named Hadi.
April 14, 2019, Louviere moved for default against Carewell,
representing that Carewell had been served on November 12,
2018 by personal service upon an employee of suitable age and
discretion at its usual place of business, and that Carewell
had not filed a responsive pleading or otherwise defended the
suit. On May 9, 2019, the clerk entered a default as to
Carewell, and on May 20, 2019, Carewell filed the instant
motion to vacate the default entry or alternatively, to
dismiss the complaint.
has now moved the court to vacate the entry of default,
arguing that Louviere cannot meet his burden of showing that
he validly served Carewell under Federal Rule of Civil
service of process is challenged, the serving party bears the
burden of proving its validity or good cause for failure to
effect timely service." Sys. Signs Supplies v. U.S.
Dep't of Justice, Washington, D.C., 903 F.2d 1011,
1013 (5th Cir. 1990).
4(h) of the Federal Rules of Civil Procedure governs services
on a corporate entity:
(h) Serving a Corporation, Partnership, or Association.
Unless federal law provides otherwise or the defendant's
waiver has been filed, a domestic or foreign corporation, or
a partnership or other unincorporated association that is
subject to suit under a common name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an
(B) by delivering a copy of the summons and of the complaint
to an officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive service
of process and-if the agent is one authorized by statute and
the statute ...