ELIZABETH E. FOOTE, District Judge.
Before the Court is a Federal Rule of Civil Procedure 12(b)(5) motion to dismiss, filed by Vernon Johnson ("Johnson") and American Motor Transportation, Inc. [Record Document 71]. Plaintiffs oppose the motion. [Record Document 73]. For the reasons discussed below, the motion to dismiss is
The Court previously set forth the pertinent background in a ruling granting Defendants' motion to quash.
In its ruling, the Court allowed Plaintiffs one additional month- until August 15, 2017- to properly serve Johnson and American Motor Transportation.
Rule 4 of the Federal Rules of Civil Procedure provides that an individual may be served by
Fed. R. Civ. P. 4(e). Louisiana law provides that service of process on an individual may be personal or domiciliary. La. Code Civ. P. art. 1231. Domiciliary service means service left at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing in the domiciliary establishment.
Rule 4 also provides that a corporation, partnership, or unincorporated association (if being served in the United States) must be served:
Fed. R. Civ. P. 4(h). Louisiana law provides that service of process on domestic or foreign corporations is made by personal service on any one of its agents for service of process. La. Code Civ. P. art. 1261(A). Article 1261(b) further provides:
La. Code Civ. P. art. 1261(B).
Rule 4 further provides that
Fed. R. Civ. P. 4(m).
Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim if service of process was not properly served in the appropriate manner.
Good cause under Rule 4(m) requires "at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice."
This case involves defective service on both Johnson, an individual, and American Motor Transportation, a corporation. On August 29, 2017, Plaintiffs "initiated" service on Johnson via certified mail to 104 Jesse Layne Drive, Harvest, Alabama 35749. Record Document 73, p. 2. Plaintiffs assert that this address was the one listed on the accident report and was also the address Johnson provided at his March 2017 deposition. Record Documents 73, pp. 2, 3; and 73-1, p. 2. The Postal Service was unable to deliver the package to Johnson at the Jesse Layne address, marked it as "addressee unknown" on September 6, and returned the package to Monroe. Record Document 73-5, p. 2.
Meanwhile, the certified mail package sent to American Motor Transportation's agent, Milos Bozovic ("Bozovic"), at 8628 Tuttle Drive, Unit 3, Palos Hills, IL 60465, was equally unsuccessful. That package was returned to sender, with "vacant" "unable to forward" noted on the exterior.
Plaintiffs' counsel did not ascertain the status of service on either Johnson or Bozovic until September 21, 2017, two days past the deadline, and only then discovered neither had been served. Record Document 73, p. 2. Plaintiffs blame the Postal Service, Johnson, and Johnson's family members for Plaintiffs' inability to serve these purported Defendants. Indeed, without any factual support whatsoever, Plaintiffs represent to the Court that Johnson avoided service. Record Document 73, p. 4. They further state, "The mere fact that Johnson family members denied that he still lived at a resident [sic] that he testified he resided at should not be an obstruction to service."
Plaintiffs' counsel has misrepresented the facts to the Court. There is no evidence that Johnson's family was ever approached by the Postal Service, much less that they lied to a postal employee about where Johnson lived. There is no evidence that Johnson has attempted to evade service. The fault, rather, lies solely with the Plaintiffs, who attempted to serve Johnson at an old address. As defense counsel accurately notes, at Johnson's March 3, 2017 deposition, Plaintiffs' counsel asked "State your name and address for the record, please." Record Document 74-1, p. 3. Johnson answered, "My name is Vernon Johnson. My address is 35740 Highway 17, Butler, Alabama." Record Document 74-1, pp. 3-4. Plaintiffs' counsel later asked Johnson "What address were you living at at that time [of the accident]?" Record Document 74-1, p. 9. Johnson answered, "104 Jessie [sic] Layne Drive. . . . Harvest, Alabama . . ."
In a similar vein, Plaintiffs fault the Postal Service for the lack of service on Bozovic, stating that "[t]he fact that postal service, delayed service on the agent, plaintiffs should not be penalized" and "plaintiffs have no control over the postal service. . . ." Record Document 73. Service via certified mail was not the only option available to the Plaintiffs. Moreover, it is clear to the undersigned that had the Plaintiffs acted with due diligence throughout this process, they may well have avoided these issues altogether. In making these observations, the Court is not penalizing Plaintiffs for the acts of the Postal Service, but instead is enforcing the rules and procedures that govern all legal actions.
Ultimately, the parties agree that two purported Defendants have never been served in a suit that has been pending in federal court since January of 2016. Rule 4(m) requires that a defendant be served within 90 days after the complaint is filed. In a removed case, the time for service begins to run from the date of removal, not the date the complaint was filed in state court.
When a plaintiff does not serve a defendant within the required time period, the Court is required to dismiss the case unless the plaintiff shows good cause for the failure. Fed. R. Civ. P. 4(m). The plaintiff bears the burden of demonstrating good cause.
Accordingly, the motion to dismiss filed by Johnson and American Motor Transportation [Record Document 71] be and is hereby