Filed: May 11, 2012
Latest Update: May 11, 2012
Summary: MEMORANDUM ORDER KAREN L. HAYES, District Judge. Before the court is a motion to appoint curator [doc. # 7] filed by plaintiff, Rose Meyer. For reasons set forth below, the motion is DENIED. 1 Plaintiff alleges in her motion that she has been unable to effect service of process on defendants Fred Bayles, Joanne Caldwell Bayles, and Arbor Terrace of Louisiana, Inc. She claims that she attempted to serve waivers of service at the defendants' registered addresses to no avail. Accordingly, sh
Summary: MEMORANDUM ORDER KAREN L. HAYES, District Judge. Before the court is a motion to appoint curator [doc. # 7] filed by plaintiff, Rose Meyer. For reasons set forth below, the motion is DENIED. 1 Plaintiff alleges in her motion that she has been unable to effect service of process on defendants Fred Bayles, Joanne Caldwell Bayles, and Arbor Terrace of Louisiana, Inc. She claims that she attempted to serve waivers of service at the defendants' registered addresses to no avail. Accordingly, she..
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MEMORANDUM ORDER
KAREN L. HAYES, District Judge.
Before the court is a motion to appoint curator [doc. # 7] filed by plaintiff, Rose Meyer. For reasons set forth below, the motion is DENIED.1
Plaintiff alleges in her motion that she has been unable to effect service of process on defendants Fred Bayles, Joanne Caldwell Bayles, and Arbor Terrace of Louisiana, Inc. She claims that she attempted to serve waivers of service at the defendants' registered addresses to no avail. Accordingly, she seeks to have the court appoint a curator to represent the defendants and accept service on their behalf in accordance with Louisiana law as incorporated by Federal Rule of Civil Procedure 4(e)(1).2 She also seeks to have the court order the United States Marshal's Office to effect this service on the curator.
Under Louisiana law,
A. The court shall appoint an attorney at law to represent the defendant, on the petition or ex parte written motion of the plaintiff, when:
(1) It has jurisdiction over the person or property of the defendant, or over the status involved, and the defendant is:
(a) A nonresident or absentee who has not been served with process, either personally or through an agent for the service of process, and who has not waived objection to jurisdiction.
La. Code Civ. P. Art. 5091 (in pertinent part) (emphasis added).
A nonresident is defined inter alia as an individual who is not domiciled in this state or a foreign corporation which is not licensed to do business in this state. La. Code Civ. P. 5251(11). Moreover, an "absentee" is defined inter alia as a person "who cannot be found and served after a diligent effort." La. Code Civ. P. Art. 5251(1).3
Of the three defendants here, only Joanna Caldwell Bayles and Arbor Terrace of Louisiana, Inc., are domiciled in the State of Louisiana. See Amended Complaint, Doc. # 11. Thus, these defendants may only be considered absentees if the plaintiff has shown she has made a "diligent effort" to locate and serve them. See Abbott v. Pratt, 144 La. 741, 81 So. 296 (La. 1918) (stating that the party asserting the validity of a curator appointment bears the burden of showing that the defendant is absent).
As for Ms. Bayles, however, it appears the plaintiff has not even attempted to serve her at her domicile. The current Yellow Book for Northeast Louisiana shows a Joanne Caldwell Bayles as having an address of 201 Lakeland Dr., West Monroe, Louisiana, 71291. See Yellow Book, 2011-12, Northeast Louisiana. Until the plaintiff shows she has attempted service on Ms. Bayles at her residence, she cannot satisfy her burden of proving a "diligent effort" at effecting service.4
As for the corporate defendant, plaintiff has similarly failed to meet her burden. Louisiana Code of Civil Procedure Article 1261 provides guidelines for accomplishing service on a domestic or foreign corporation. The article states that if the plaintiff is unable to serve the registered agent for a corporation, then another option is "personal service on any officer, or director, or on any person named as such in the last report filed with the secretary of state." See La. Code Civ. Pro. Art. 1261(B)(1). The Louisiana Secretary of State's online database lists Susan Swinea, defendant herein, as an officer for Arbor Terrace of Louisiana, Inc.5 Until plaintiff can show she has attempted service on the corporation in this manner, she cannot satisfy her burden.
Finally, plaintiff has not shown that she has attempted to serve defendant Fred Bayles at his residence in Mississippi. Plaintiff has alleged that Mr. Bayles resides in Pearl, Mississippi, see doc. # 1, and the court's records show an address for Mr. Bayles at 440 Cross Park Dr., Apt. 1011, Pearl, Mississippi, 39208.6 Plaintiff must produce evidence she has attempted to personally serve Mr. Bayles before this court can appoint a curator to accept service on his behalf.
Furthermore, because plaintiff has not made a sufficient effort on her own to serve these defendants, the undersigned will not order the U.S. Marshal's Office to do so at this time. However, since the 120 day deadline for effecting service is fast approaching, the undersigned grants plaintiff a 60 day extension of that deadline.
For the foregoing reasons, the motion to appoint curator [doc. # 7] filed by plaintiff, Rose Meyer, is hereby DENIED. However, plaintiff is granted a 60 day extension of time from the date of this order in which to effect service on the defendants.
IT IS SO ORDERED.
