United States District Court, W.D. Louisiana, Lake Charles Division
MAGISTRATE JUDGE KAY
D. CAIN JR. UNITED STATES DISTRICT JUDGE.
the court is a Motion to Dismiss [doc. 12] filed by defendant
CB&I, LLC ("CB&I") under Rules 12(b)(5),
12(b)(1), and 12(b)(6) of the Federal Rules of Civil
Procedure, in response to the employment discrimination
complaint filed here by Isaiah Collins. Collins opposes the
motion and CB&I has submitted a reply. Docs. 16, 17.
Accordingly, the matter is now ripe for review.
alleges that he was employed by CB&I as a pipefitter, in
the company's operations near Sulphur, Louisiana. Doc. 1,
p. 3, ¶ 15. He further asserts that he was fired by that
company in June 2017, due to his race (African-American).
Id., at ¶¶ 16-17, Accordingly, he filed a
charge of discrimination with the United States Equal
Employment Opportunity Commission ("EEOC").
See doc. 12, att. 3. The EEOC closed the
investigation and issued a notice of right to sue on November
5, 2018, informing Collins that he had 90 days to pursue his
claim through an action in state or federal court.
then filed a pro se complaint against CB&I on
February 5, 2019, alleging violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000 et
seq. Doc. 1. His application to proceed in forma
pauperis was rejected by the court on February 12, 2019,
Doc, 4. The court sent notice of Collins's obligation to
pay the filing fee on February 20, 2019. Doc. 5. That mailing
was returned as undeliverable, apparently due to
Collins's failure to include his ZIP code with his
address. Doc. 6. The clerk's office made a second attempt
on March 4, and Collins paid the filing fee on March 11,
2019. Id. Counsel enrolled on Collins's behalf
on April 15, 2019. Doc, 10. Counsel then filed an affidavit
of service, showing that CB&I had been served through
human resources manager Kelvin Burns on April 22, 2019. Doc.
asserts that service upon Burns was improper because he was
not the company's registered agent and because a copy of
the complaint was not attached to the summons. Accordingly,
it filed the instant motion on May 13, 2019, Doc. 12. Here it
moves for dismissal of the complaint (1) under Rule 12(b)(5),
on the grounds that service was defective and the 90-day time
period for effecting service under Federal Rule of Civil
Procedure 4(m) has expired; and (2) under Rules 12(b)(1) and
12(b)(6), on the grounds that dismissal of the complaint
under Rule 12(b)(5) means that Collins failed to file suit
within 90 days of the EEOC's notice of suit rights. Doc.
12, att. 1, Collins opposes all grounds for dismissal. Doc.
16; doc. 16, att. 2. It also provides proof of service on
CB&I on May 30, 2019, through agent Ashley Minvielle.
Doc. 16, att. 1.
Rule of Civil Procedure 4 provides the proper means of
service for actions filed in federal court, and Rule 4(m)
specifies that a complaint must be served on the opposing
party within 90 days of its filing. Absent valid service of
process, "proceedings against a party are void."
Aetna Bus. Credit, Inc. v. Universal Decor & Interior
Design, 635 F.2d 434, 435 (5th Cir. 1981). Accordingly,
Rule 12(b)(5) allows for dismissal of an action based on
insufficient service of process. Luv N' Care, Ltd. v.
Groupo Rimar, 2014 WL 6982499, at *3 (W.D. La. Dec. 9,
2014) (citing 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1353 (3d ed. 2013)). On
such a motion, the serving party bears the burden of proof.
Aetna Bus. Credit, 635 F.3d at 435.
district court has broad discretion in determining whether to
dismiss an action for insufficient service under Rule
12(b)(5). George v. U.S. Dep't of Labor, 788
F.2d 1115, 1116 (5th Cir. 1986). If the motion relates to
plaintiffs failure to effect service within Rule 4(m)'s
time limit, the court must extend the time to effect service
for good cause shown. Pugh v. Bank of America, 2017
WL 1427015, at *1 (E.D. La. Apr. 21, 2017) (citing Fed. R.
Civ. P, 4(m)). If there is no good cause shown, the court may
at its discretion either dismiss the action without prejudice
or grant an extension. Id. (citing Thompson v.
Brown, 91 F.3d20, 21 (5th Cir. 1996)).
alleges that the first attempt at service was deficient as
described above and that the case must be dismissed because
Collins failed to properly effect service within the 90 days
required under Federal Rule of Civil Procedure 4(m), Collins
admits that service upon Burns was improper under Rule 4(e)
and 4(h)'s requirements for service on an unincorporated
association, and does not contest the allegation that he
failed to attach a copy of the complaint to the summons as
required by Rule 4(c). See doc. 16, att, 2, p. 2,
Instead, he asks that the court exercise its discretion and
excuse the failure to timely serve CB&I. Collins does not
specify any grounds for finding good cause in this matter.
Nevertheless, the court explores the record for same as well
as any factors guiding its discretion.
courts have held that filing a complaint with an application
to proceed in forma pauperis ("IFP")
should toll Rule 4(m)'s time for effecting service until
the IFP application is resolved and that, where the IFP
application is denied, the limitations period should remain
tolled at least until the court issues its decision. See
Ellis v. Principi, 223 F.R.D. 446, 446-48 (S.D.Miss.
2004) (collecting cases). In this matter, Collins filed his
complaint on February 5, 2019, and his application to proceed
IFP was denied one week later. Notice of that decision did
not reach him, however, until after March 4. Collins in turn
paid the full filing fee on March 11, 2019. Counsel enrolled
on his behalf on April 15 and made the deficient first
attempt at service a week later. Counsel received notice of
these deficiencies by May 13, 2019, with the filing of the
instant motion, but did not complete his second attempt at
service until May 30.
the limitations period tolled through the denial of
Collins's IFP application on February 12, service on May
30 occurred just 17 days after Rule 4(m)'s time
limit.Counsel attempted service promptly after
enrolling, though he provides no excuse for his subsequent
17-day delay after receiving notice of the first
attempt's insufficiency. These facts do not provide
sufficient basis for compelling extension of the service
deadline under a finding of good cause, given counsel's
unexplained delays and inability to correctly accomplish
service on the first attempt. They do, however, guide the
court's discretion toward denial of the motion. The
plaintiff himself appears to have acted diligently while
proceeding pro se through the EEOC review and the
early stages of this suit, aside from the excusable omission
of his ZIP code. Dismissal of the action is too harsh a
remedy to impose against plaintiff for what is ultimately
counsel's error, especially where CB&I obtained
formal notice of the suit only shortly after Rule 4(m)'s
limitation period expired. Accordingly, the Motion to Dismiss
will be denied as to the Rule 12(b)(5) grounds. Because the
court will not dismiss the suit for failure to timely effect
service, the Rule 12(b)(1) and 12(b)(6) grounds for dismissal