United States District Court, W.D. Louisiana, Lafayette Division
D. CAIN JR. UNITED STATES DISTRICT JUDGE.
the court is a Motion to Dismiss and Compel Arbitration [doc.
10] filed by defendant Iberiabank Corporation (“Iberia
Bank”) under Federal Rule of Civil Procedure 12(b)(5)
and the Federal Arbitration Act, 9 U.S.C. § 1 et
seq., in response to the pro se employment
discrimination suit filed by Quonzel Poydras. The motion is
regarded as unopposed.
suit arises from Poydras's alleged wrongful termination
from an Iberia Bank office in Lafayette, Louisiana, on April
14, 2016, and her allegations of experiencing a hostile work
environment before that point. See doc. 1. Poydras
asserts that she filed a charge with the Equal Employment
Opportunity Commission on September 15, 2016. Id. at
5. The agency issued a Notice of Right to Sue letter on June
11, 2019. Doc. 1, att. 1. Poydras then filed a pro se
complaint in this court on September 5, 2019, under Title VII
of the Civil Rights Act and the Americans with Disabilities
Act. Doc. 1. She alleges employment discrimination based on
her race and sex as well as her disability or perceived
disability (stress and post-traumatic stress disorder) and
seeks compensatory damages. Id.
Bank now moves to dismiss Poydras's claims without
prejudice under Federal Rule of Civil Procedure 12(b)(5),
alleging that Poydras failed to properly effect service under
Rule 4. It also argues that Poydras's claims are subject
to a mandatory arbitration agreement. Accordingly, it
requests that the court dismiss without opportunity to cure
the defects in service. Doc. 10, att. 1. Poydras has filed no
response to the motion within the time limits set out by the
court, and so the motion is regarded as unopposed.
Law & Application
valid service of process, proceedings against a party are
void. Aetna Bus. Credit, Inc. v. Universal Décor
& 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. On such a motion, the
serving party bears the burden of proof. Id. A
litigant's pro se status will not excuse his failure to
effect service or otherwise follow the Federal Rules of Civil
Procedure. Thrasher v. City of Amarillo, 709 F.3d
509, 512 (5th Cir. 2013).
summons must be served with a copy of the complaint by a
person who is at least 18 years old and not a party to the
suit. Fed.R.Civ.P. 4(c). Rule 4(h) provides that corporations
may be served in the manner prescribed by Rule 4(e)(1) for
serving an individual - that is, by following state law for
service of summons in an action in the state where the
district court is located or service is made - or “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 . . . .” The Louisiana Code of Civil Procedure
likewise provides that a corporation is served “by
personal service on any one of its agents for service of
process.” La. C. Civ. P. art. 1261(A); see,
e.g., Thomas v. New Leaders for New Schools,
278 F.R.D. 347, 351 (E.D. La. 2011). “An agent must
have actual authorization from the entity sought to be
served. Apparent authority is insufficient.” Smith
v. Woman's Hosp., 2015 WL 2357127, at *3 (M.D. La.
May 15, 2015) (internal quotations and citations omitted).
completed a proof of service form, indicating that Lisa
Kalaiti served the defendant on September 24, 2019, at its
office in Lafayette, Louisiana, through employee Donna Domec.
Doc. 9. Domec states that she is a human resources assistant
at Iberia Bank and is not authorized to accept service of
process on behalf of that entity. Doc. 10, att. 3. She also
denies receiving a copy of the complaint with the summons.
Id. Accordingly, service on Iberia Bank was
service is deficient, “district courts possess broad
discretion to either dismiss the plaintiff's complaint
for failure to effect service or to simply quash service of
process.” Internat'l Transctions, Ltd. v.
Embotelladora Agral Regionmontana SA de CV, 277
F.Supp.2d 65, 665 (N.D. Tex. 2002). When the defect is
curable, courts generally quash the attempted service and
give the plaintiff an opportunity to rectify her error.
Rhodes v. J.P. Sauer & Sohn, Inc., 98 F.Supp.2d
746, 750 (W.D. La. 2000) (citing Gregory v. U.S.
Bankruptcy Court, 942 F.2d 1498, 1500 (10th Cir. 1991)).
Dismissal without opportunity to cure, however, is
appropriate where proper service would be futile because the
underlying claims are subject to dismissal on other grounds.
defect in service is curable - Iberia Bank is subject to
service of process and her time to effect same under Rule
4(m) has not yet expired. Iberia Bank asserts, however, that
no opportunity to cure should be granted because Poydras is
bound to arbitrate her claims. Arbitration is favored under
both federal and Louisiana law, and arbitration agreements
are presumptively valid. Aguillard v. Auction Mgmt.
Corp., 908 So.2d 1, 7 (La. 2005); Carter v.
Countrywide Credit Indus., Inc., 362 F.3d 294, 297 (5th
Cir. 2004). The court may dismiss an action when all claims
are subject to arbitration, because “[a]ny
post-arbitration remedies sought by the parties . . . would
be circumscribed to a judicial review of the arbitrator's
award in the limited manner prescribed by law.”
Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161,
1164 (5th Cir. 1992) (internal quotations omitted).
Accordingly, Poydras's claims are futile and may be
properly dismissed under Rule 12(b)(5) if they are subject to
a valid arbitration agreement.
determining whether claims are subject to a valid arbitration
agreement, the court uses a two-prong inquiry. Will-Drill
Res., Inc. v. Samson Res. Co., 352 F.3d 211, 214 (5th
Cir. 2003). First the court determines whether the parties
agreed to arbitrate. To this end it asks (1) whether a valid
agreement to arbitrate exists and then (2) whether the claims
are within the scope of the agreement. OPE Internat'l
LP v. Chet Morrison Contractors, Inc., 258 F.3d 443, 445
(5th Cir. 2001). The court applies state contract law to the
former question and the federal policy favoring arbitration
to the latter. Fleetwood Enters. Inc. v. Gaskamp,
280 F.3d 1069, 1073 (5th Cir. 2002); Sherer v. Green Tree
Svcg. LLC, 548 F.3d 379, 381 (5th Cir. 2008). If this
prong is satisfied, the court then considers whether any
federal policy or statute renders the claim nonarbitrable.
Wash. Mut. Finance Grp., LLC v. Bailey, 364 F.3d
260, 263 (5th Cir. 2004).
Bank submits a declaration from senior vice president and
regional human resources director Maria Manuel, as well as a
copy of the arbitration agreement that Poydras signed at the
beginning of her employment with Iberia Bank on February 11,
2014. Doc. 10, att. 2. The agreement provides that it is
governed by the Federal Arbitration Act and covers, among
other things, all disputes relating to “the terms and
conditions of employment, treatment by supervisors,
co-workers or third-parties, denial of promotion, pay raises
or job assignments, and termination of employment . . .
.” Id. at 3. It also specifically includes
“statutory and/or common law claims of discrimination
on the basis of age, race, national origin, religion,
disability, sex/gender, color, or any other factor the
consideration of which is prohibited by federal or state law
or local ordinance.” Id. Finally, the