United States District Court, W.D. Louisiana, Shreveport Division
MAURICE HICKS, JR., CHIEF JUDGE
Southern Oaks Nursing & Rehabilitation Center, LLC
(“Defendant”), is before the Court on an
unopposed Motion to Dismiss (Record Document 16). For the
reasons stated below, Defendant's motion is
Stephanie Lewis (“Plaintiff”) filed her Complaint
(Record Document 1) on December 27, 2017. Magistrate Judge
Hornsby issued a Memorandum Order (Record Document 6) on
January 1, 2018, which afforded Plaintiff the opportunity to
file an amended complaint to rectify multiple deficiencies in
the original complaint. Magistrate Judge Hornsby also advised
Plaintiff that she would be obligated to follow the
Court's orders and the applicable procedural rules,
despite her status as a pro se litigant.
Additionally, he advised Plaintiff that she would be required
to keep the Court informed of a current address, and that she
should notify the Clerk of Court of any change of address.
She was warned that, “[i]f mail is issued to Plaintiff
and it is returned for an insufficient address, that may lead
to a dismissal of this case.” See Record
Document 6 at 3.
of Magistrate Judge Hornsby's Memorandum Order was mailed
to Plaintiff at her address of record in Shreveport, LA, but was
returned as “undeliverable” at that address.
See Record Document 8. Despite this, Plaintiff did,
in fact, file an Amended Complaint (Record Document 7).
Magistrate Judge Hornsby then issued another Memorandum Order
(Record Document 9) on October 9, 2018, which notified
Plaintiff of a deficiency in her Amended Complaint (Record
Document 7) and gave her another opportunity to amend. The
Memorandum Order also advised Plaintiff that she would
“need to have a summons and a copy of her complaint and
amended complaint delivered to the registered agent for the
defendant or any other person who may be served pursuant to
the rules set forth in the Federal Rule of Civil Procedure
4.” Record Document 9. Finally, the Memorandum Order
stated the following:
The Court's prior order instructed Plaintiff to keep the
court informed of a current address. She was told that any
change of address must be given to the clerk of court
“in writing.” The docket sheet reflects that mail
was returned because Plaintiff's address changed without
notice. Plaintiff later personally notified the clerk of
court of an updated address and received a copy of the prior
memorandum order. Plaintiff is ordered to file with the clerk
of court a written confirmation of her current mailing
address no later than October 19, 2018. Returned mail, or
failure to comply with this order, may result in dismissal of
this civil action for failure to prosecute.
Id. at 2. In response to this Order, Plaintiff filed
a Notice of Change of Address (Record Document 10) and a
Second Amended Complaint (Record Document 11). The Clerk of
Court then issued a Summons (Record Document 12) regarding
the Second Amended Complaint. The Summons was returned as
“undeliverable” to the address provided in
Plaintiff's Notice of Change of Address (Record Document
10). See Record Document 13. Despite this, Plaintiff
filed a document titled Proof of Service (Record Document
14), wherein she represents that she “personally served
Southern Oaks Nursing & Rehabilitation Center at 1534
Glen Oaks Dr., Shreveport, LA 71103 on 11/8/18.” Record
Document 14. Plaintiff hand-delivered the summons and
complaint to Linda Payne, an employee of Southern Oaks
Nursing & Rehabilitation Center, LLC. See id.;
see also Record Document 16-2. Linda Payne is not
the registered agent for service of process for Defendant.
then filed another Notice of Change of Address (Record
Document 15), which contained the same address provided in
the first Notice of Change of Address (Record Document 10).
Defendant then filed the instant Motion to Dismiss (Record
Document 16), and the Court issued a Notice of Motion Setting
(Record Document 17) on November 30, 2018. The Notice of
Motion Setting was mailed to the updated address of record
provided by Plaintiff. See Record Documents 10 &
15. However, the notice was returned as
“undeliverable.” See Record Document 19.
Plaintiff filed no opposition to the instant motion.
argues in the instant motion that Plaintiff's service was
insufficient. Rule 12(b)(5) of the Federal Rules of Civil
Procedure permits a court to dismiss a complaint for
insufficient service of process. Proper service of process
“is not some mindless technicality.” Friedman
v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir.1991)
(quoting Del Raine v. Carlson, 826 F.2d 698, 704
(7th Cir.1987)). The requirement stems from the Due Process
Clause of the Fifth Amendment, which requires that defendants
receive adequate notice of proceedings against them. See
Dusenbery v. United States, 534 U.S. 161, 167, 122 S.Ct.
694, 151 L.Ed.2d 597 (2002). The party making service has the
burden of demonstrating its validity when an objection to
service is made. Quinn v. Miller, 470 Fed.Appx. 321,
323 (5th Cir. 2012) (citing Carimi v. Royal Carribean
Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir.1992)).
Here, Defendant argues that Plaintiff's service was
insufficient under Rules 4(c)(2) and 4(h)(1) of the Federal
Rules of Civil Procedure.
4(c)(2) provides that, “[a]ny person who is at least 18
years old and not a party may serve a summons and
complaint.” Therefore, a party to the lawsuit may not
personally serve a defendant. Here, it is clear that
Plaintiff personally served the Summons and Second Amended
Complaint (Record Document 11) on Linda Payne, an employee of
Defendant. Linda Payne's Affidavit (Record Document 16-2)
states that, “[o]n November 8, 2018, [Plaintiff] came
to the facility at which I work and handed me a summons and
complaint that each bore the case number of the above-titled
action.” This is consistent with the Proof of Service
filed by Plaintiff, wherein Plaintiff signed and printed her
name on the lines designated for the server of the documents.
See Record Document 12. Plaintiff has offered
nothing to refute Defendant's argument, as she did not
oppose the instant motion. Thus, the Court finds that
Plaintiff failed to comply with Rule 4(c)(2) of the Federal
Rules of Civil Procedure.
Rule 4(h)(1) of the Federal Rules of Civil Procedure, a
limited liability company (“LLC”) must be served
either (A) in the manner provided by the law of the state
where the federal court is located or where service is to be
made or (B) by delivering a copy of the summons and complaint
to an officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive service
of process. Plaintiff failed to comply with Rule4(h)(1).
this Court and Defendant are both located in Louisiana,
Louisiana law on service of process is applicable. Under
Louisiana law, service of process on an LLC is made by
personal service on the company's agent for service of
process. See La. C.C.P. art. 1266(A). Only if the
LLC has no agent for service of process, or the person
attempting service certifies that he is unable, after due
diligence, to service the designated agent, will a member,
manager, or employee of the LLC be authorized to receive
service of process on behalf of the LLC. See La.
C.C.P. art. 1266(B). Teddy Price has been the registered
agent of Defendant since November 2, 2005. See
Record Document 16-3. Therefore, under Louisiana law, it was
necessary for Plaintiff to attempt service upon Mr. Price
before serving any other ...