United States District Court, W.D. Louisiana, Lake Charles Division
D. CAIN, JR. UNITED STATES DISTRICT JUDGE.
the court is a Motion to Dismiss [doc. 10] 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 Christopher Collins. Collins opposes
the motion and CB&I has submitted a reply. Docs. 15, 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,
pp. 2-3, ¶¶ 5, 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. 10, 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 approved on February 19, 2019. Doc. 4. A
summons was not issued until February 22, 2019, however, due
to Collins's failure to provide his address. See
docs. 5, 6. Counsel then enrolled on Collins's behalf on
April 15, 2019, and filed an affidavit of service asserting
that CB&I had been served through human resources manager
Kelvin Burns on April 22. Docs. 7, 8, 9.
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. 10. 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.
10, att. 1. Collins opposes all grounds for dismissal. Doc.
15; doc. 15, att. 2. It also provides proof of service on
CB&I on May 30, 2019, through agent Ashley Minvielle.
Doc. 15, 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, 635F.3dat435.
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 7 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.3d 20, 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. 15, 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 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 approved two weeks later, on
February 19. Counsel enrolled on his behalf on April 15 and
made the deficient first attempt at service a week later.