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Knight v. Knight

United States District Court, W.D. Louisiana, Lafayette Division

November 21, 2019

Knight
v.
Knight et al

          S. Maurice Hicks Judge

          MEMORANDUM ORDER

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion For Expenses And Attorneys Fees Pursuant To FRCP Rule 9(d)(2) filed by Plaintiff, Bryan Knight [Rec. Doc. 153], Defendant, Heather Knight Billeaud's, Memorandum In Opposition [Rec. Doc. 159], and Plaintiff's Reply thereto [Rec. Doc. 169]. Also before the Court is an Objection To Plaintiff's Reply, which the Court will construe as a Motion To Strike Plaintiff's Reply, filed by Heather Billeaud [Rec. Doc. 165].

         Plaintiff filed this motion alleging that Defendant “actively and intentionally” avoided waiver of service and also service of process. The record reflects that, before Billeaud was named as a defendant in this action, Plaintiffs counsel was advised by letter dated March 27, 2019, that she had retained attorney J. Kirk Piccione “to represent [her] in connection with her deposition” related to this action. R. 153-2. Mr. Piccione requested that Plaintiff's counsel contact him rather than Ms. Billeaud “with anything pertaining to her deposition.” Id.

         Plaintiff amended his complaint to add Mrs. Billeaud as a defendant in this action, on July 2, 2019 (entered). R. 114. Thereafter, on July 3, 2019, Mr. Piccione received the amended complaints with a request from Plaintiff's counsel that he execute a Waiver of Service of Summons for Mrs. Billeaud. R. 153-2. By letter dated July 15, 2019, Mr. Piccione stated that while he had discussed with Mrs. Billeaud his representation of her in this lawsuit, she told him she would not be able to obtain the financing to pay his retainer until “sometime in September.” Id. He further stated that because he had not yet been retained by her, he could not accept Service of Summons or execute the waiver.[1] Id.

         On July 22, 2019, Plaintiff's counsel sent a letter via certified mail to Mrs. Billeaud enclosing the summons as well as a Waiver of Service of Summons. R. 153-2. Accordingly to USPS Tracking, the letter to Mrs. Billeaud “could not be delivered on August 14, 2019 at 9:22 am in Lafayette, La 70508. It was held for the required number of days and is being returned to the sender.” Id. The Tracking further indicated that the Notice was left on July 24, 2019 at 12:05 pm, “no Authorized Recipient available.” Id.

         Plaintiff's counsel hired a Process Server to effect personal domiciliary service on Mrs. Billeaud. A “Private Process Invoice” provides that the server attempted to serve Mrs. Billeaud at her domicile on August 29, 2019, when her husband Beau Billeaud answered the door at approximately 6:00 p.m. Mr. Billeaud refused to accept service for his wife. R. 153-2. The invoice further provides that the server's assistant attempted to serve Mrs. Billeaud “4 or 5 more times” between August 30 and September 4, 2019, but “no one would answer the door.” Id.

         Plaintiffs counsel retained a private investigation firm, Reconnaissance Investigations, to attempt service of Mrs. Billeaud. R. 153-3. A Statement of Services Rendered from Reconnaissance Investigations dated September 11, 2019 states:

9/4/2019 5 hrs. surveillance of subject residence
9/5/2019 6 hrs. followed subject to gated community
9/6/2019 15 hrs. Surveillance of subject followed subject & served at 9:30 pm in garage - Mrs. Heather Knight Billeaud.

Id. Plaintiff now moves for expenses and attorneys' fees in the total amount of $2, 701.50, pursuant to Federal Rule of Civil Procedure 4(d)(2).

         In her opposition, Mrs. Billeaud and her husband, Beau Billeaud, attach individual affidavits in which each states that he/she “did not receive a notice of certified mail from the plaintiff or his counsel at my home address at any time between July 22, 2019 and August 14, 2019.” R. 159-1, ¶ III, 159-2, ¶VII. They each further state, “Between August 29, 2019 and September 6, 2019, I observed no private process server at my home at any time.” R. 159-1, ¶VI, 159-2, ¶IX. Finally, each of them stated, “I went to work on weekdays between August 29, 2019 and September 6, 2019, and l was otherwise generally home during that period as my young daughter had just started school. I was home in the early morning hours, getting my daughter ready for school and preparing to go to work. I returned home each evening and spent each night during that 8-day period at home.” R. 159-1, ¶VII, 159-2, ¶X.

         As to Plaintiffs contention that Mr. Piccione and/or Mrs. Billeaud were involved in a deliberate attempt to avoid waiver of service, the Court finds that Mrs. Billeaud's affidavit statement that she “never authorized Mr. Piccione to either waive or accept service” and Mr. Piccione's letter to Plaintiffs counsel accounting their legal relationship are credible. In Louisiana, the existence of an attorney-client relationship turns largely on the client's subjective belief that such a relationship exists. In re Austin,943 So.2d 341, 348 (La. 2006). Mrs. Billeaud retained Mr. Piccione's legal services only for her grand jury testimony and then for her deposition. She was free to make the decision not to retain him to represent ...


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