Wesenberg v. New Orleans Airport Motel Associates TRS, LLC, et al, No. 2:2014cv01632 - Document 30 (E.D. La. 2015)
Court Description: ORDER AND REASONS granting 18 Motion by Schindler to Dismiss for insufficiency of service of process. The dismissal is without prejudice to Wesenberg's right to refile against Schindler.. Signed by Chief Judge Sarah S. Vance on 9/21/15. (jjs)
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Wesenberg v. New Orleans Airport Motel Associates TRS, LLC, et al Doc. 30 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DEENA WESENBERG CIVIL ACTION VERSUS NO: 14-1632 NEW ORLEANS AIRPORT MOTEL ASSOCIATES TRS, LLC d/ b/ a DOUBLETREE BY HILTON NEW ORLEANS AND TRAVELERS INSURANCE COMPANY SECTION: R(5) ORD ER AN D REASON S Defendant Schindler Elevator Corporation m oves the Court to dism iss plaintiff's claim s against it under Federal Rule of Civil Procedure 12(b)(4) for insufficient process, Rule 12(b)(5) for in sufficient service of process, and Rule 41(b) for failure to com ply with a Court order. Because plaintiff's service of process was insufficient and the tim e period for effecting service of process has expired, the Court grants Schindler's m otion under Rule 12(b)(5). I. BACKGROU N D On J une 4, 20 13, plaintiff Deena Wesenberg was injured while exiting a hotel elevator that allegedly was not flush with the floor. On J une 5, 20 14, Wesenberg sued the hotel's owner, New Orleans Airport Motel Associates TRS, LLC and its insurer, Travelers Insurance Com pany, in state court in J efferson Dockets.Justia.com Parish.1 Wesenberg alleged that defendants were negligent in m aintaining and inspecting the elevator and sought dam ages for pain and suffering, m edical expenses, lost wages, and loss of enjoym ent of life. 2 Defendants rem oved the case to this Court on J uly 15, 20 14.3 On February 25, 20 15, Wesenberg sought leave to am end her com plaint by adding as a defendant Schindler Elevator Corporation ("Schindler"), a com pany that allegedly inspected and m aintained the hotel's elevator system .4 The Court granted leave, and Wesenberg filed her first am ended com plaint on March 11, 20 15.5 Wesenberg then waited nearly three m onths before attem pting to effect service of process on the newly added defendant. On J une 5, 20 15, Wesenberg sent by registered m ail a sum m ons and a copy of her original and am ended com plaints to Schindler's agent for service of process, CT Corporation.6 Wesenberg does not claim to have ever m ade or attem pted 1 R. Doc. 1-4 (Plaintiff's Petition for Dam ages in the J efferson Parish Civil District Court). 2 Id. at 3 R. Doc. 1. 4 R. Doc. 11. 5 R. Doc. 14 (Plaintiff's First Am ended Com plaint). 6 R. Doc. 18-2 at 2. 2 personal service of process on either Schindler or CT Corporation. 7 On J une 30 , 20 15, Schindler m oved the Court to dism iss Wesenberg's claim against it under Federal Rule of Civil Procedure 12(b)(4) for insufficient process, Rule 12(b)(5) for insufficient service of process, and Rule 41(b) for failure to com ply with a Court order. Wesenberg opposes the m otion to dism iss on the ground that service by registered m ail on Schindler's agent was sufficient under the applicable law. II. LAW AN D AN ALYSIS If a party is not validly served with process, proceedings against that party are void. Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir.1981). When service of process is challenged, the party on whose behalf service was m ade bears the burden of establishing its validity. Id. "The district court enjoys a broad discretion in determ ining whether to dism iss an action for ineffective service of process." George v. U.S. Dep't of Labor, 788 F.2d 1115, 1116 (5th Cir.1986). Schlinder m oves to dism iss Wesenberg's claim s because Schindler is a corporation and Wesenberg has not served it with process in accordance with 7 See R. Doc. 19 ( 3 Rule 4(h). Under Rule 4(h)(1), a federal litigant has two options for serving a corporation within a judicial district of the United States. First, a com petent person m ay serve a corporation according to the law of the state in which the district court is located. Fed.R.Civ.P. 4(h)(1)(A). Under Louisiana law, a corporation ordinarily m ust be served by personal process on its registered agent. La. Code Civ. Proc. Ann. art. 1261. In lim ited circum stances, personal service m ay be m ade on a corporate officer, a director, or an em ployee at a place of the corporation's business. Id. Here, Schindler states that it was served with a sum m ons and the com plaints by registered m ail sent to its registered agent. Wesenberg does not dispute that she effected service of process by m ail. Because Louisiana law requires personal service of a corporation's agent, service by m ail is insufficient. Thus, Wesenberg's service on Schindler fell short of Rule 4(h)(1)(A)'s requirem ents. Alternatively, under Rule 4(h)(1)(B), a corporation m ay be served by delivering a copy of the sum m ons and of the com plaint to an officer, a m anaging or general agent, or any other agent authorized by appointm ent or by law to receive service of process. Wesenberg argues that service was effective because the sum m ons and com plaint were "delivered" to Schindler's registered agent. Courts have consistently held, however, that Rule 4(h)(1)(B)'s delivery requirem ent refers to personal service, not service by 4 m ail. See Larsen v. May o Med. Ctr., 218 F.3d 863, 868 (8th Cir. 20 0 0 ) (holding that service by m ail was not delivery); Technologists, Inc. v. MIR's Ltd., 725 F. Supp. 2d 120 , 127 (D.D.C. 20 10 ) (concluding that "service by m ail does not satisfy the requirem ents of Rule 4(h)(1)(B)"); Hazim v. Schiel & Denver Book Grp., No. CIV.A. H-12-1286, 20 13 WL 215210 9, at *2 (S.D. Tex. May 16, 20 13) ("Courts have held that Rule 4(h)(1)(B) refers to personal service and does not include service by m ail."); Mettle v. First Union Nat. Bank, 279 F. Supp. 2d 598, 60 2, 56 Fed. R. Serv. 3d 834 (D.N.J . 20 0 3) (holding that certified m ail service was not delivery). Because Wesenberg m ailed the sum m ons and com plaints to CT Corporation, she failed to deliver process under Rule 4(h)(1)(B)'s requirem ents. In sum , Wesenberg's service of process on Schindler did not com ply with either of the provisions of Rule 4(h)(1). Thus, Wesenberg's claim s are subject to dism issal for insufficient service of process under Rule 12(b)(5).8 Rule 4(m ) gives Wesenberg 120 days to serve Schindler. Wesenberg filed her First Am ended Com plaint nam ing Schindler as a defendant on March 8 Wesenberg also argues that "process was sufficient because Defendant was effectively put on notice of the lawsuit." R. Doc. 19 at 3. This argum ent fails because actual notice is not a substitute for service of process. See Ransom v. Brennan, 437 F.2d 513, 519 (5th Cir. 1971). That Schindler m ay have been notified of the existence of this litigation does not overcom e the defects in Wesenberg's attem pted service under Rule 4(h). 5 11, 20 15. More than 120 days have passed since then. Under Rule 4(m ), a district court has two choices when a plaintiff fails to serve a defendant within a 120 -day period: it m ay either "dism iss the action without prejudice . . . or direct that service be effected within a specified tim e." Fed. R. Civ. P. 4(m ). If, however, the plaintiff shows good cause for the failure, the court m ust extend the tim e of service for an appropriate period. Id. Thus, the Court approaches Schindler's m otion to dism iss in two steps. First, the Court m ust determ ine whether Wesenberg has dem onstrated good cause for her failure to effect service of process in a tim ely m anner. If good cause exists, then the Court m ust extend the tim e period for service of process. If good cause does not exist, the Court m ust then decide whether to dism iss Wesenberg's claim against Schindler without prejudice or extend the tim e for service. Thom pson v. Brow n, 91 F.3d 20 , 21 (5th Cir. 1996). The plaintiff has the burden of proving good cause for the failure to effect tim ely service. See Sy s. Signs Supplies v. U.S. Dep't of Justice, W ashington, D.C., 90 3 F.2d 10 11, 10 13 (5th Cir. 1990 ); Steele v. Bay er Healthcare LLC, No. CIV.A. 13-528, 20 13 WL 5530 214, at *1 (E.D. La. Oct. 2, 20 13); Jason v. Nugent, No. CIV.A. 0 4-1722, 20 0 5 WL 5330 1, at *3 (E.D. La. J an. 7, 20 0 5). To dem onstrate good cause, a plaintiff m ust "m ake a showing of good faith and show som e reasonable basis for noncom pliance within the 6 tim e specified[.]" Sy st. Signs Supplies, 90 3 F.2d at 10 13 (quoting W inters v. Teledy ne, 776 F .2d 130 4, 130 6 (5th Cir.1985)). Mere inadvertence, m istake of counsel, and ignorance of the rules cannot establish good cause. Peters v. United States, 9 F.3d 344, 345 (5th Cir. 1993). Here, Wesenberg's only argum ent against dism issal is that service by m ail was sufficient; she m akes no attem pt to dem onstrate good cause for her failure to serve Schindler according to the requirem ents of Rule 4(h). Federal litigants and their attorneys are expected to understand and to com ply with the Federal Rules of Civil Procedure. That Wesenberg failed to grasp the requirem ents for serving a corporate defendant does not constitute good cause for a tim e extension. Even if good cause is lacking, a district court m ay nevertheless extend the deadline for service of process by "direct[ing] that service be effected within a specified tim e." Fed. R. Civ. P. 4(m ). "Such relief m ay be warranted, 'for exam ple, if the applicable statute of lim itations would bar the refiled action, or if the defendant is evading service or conceals a defect in attem pted service.'" N ew by v. Enron Corp., 284 F. App'x 146, 149 (5th Cir. 20 0 8) (quoting Fed.R.Civ.P. 4(m) advisory committee's note (1993)). Wesenberg has not briefed the statute of lim itations issue; nor has she asked the Court for an extension of the tim e period for serving process. Wesenberg's silence is itself reason for the Court to decline to exercise its discretionary power in her favor. 7 See Thom pson, 91 F.3d at 21-22 (holding that district court was not required to extend the tim e period for service when plaintiff adm itted that good cause did not exist and failed to ask the court for an extension). In addition, the Court finds that Schindler m ade itself fully available to receive service of process in Louisiana by appointing CT Corporation as its agent for service of process. There is no evidence of evasiveness or trickery that m ight warrant granting Wesenberg an extension of tim e. The Court also finds that Schindler acted prom ptly to challenge the sufficien cy of process. Wesenberg served process by m ail on J une 5, 20 15, and Schindler filed the instant m otion to dism iss on J une 30 , 20 15. Schindler's quick action gave Wesenberg over a week before her 120 day deadline expired to cure the identified defect by effecting personal service of process on CT Corporation. Nonetheless, Wesenberg failed to take corrective action of any kind. Such conduct does not evidence a good faith effort to achieve proper service of process. Cf. Zellner v. Signature Health Servs.--Mansfield, LLC, No. 1:11-CV-2796, 20 12 WL 5289584, at *2 (N.D. Ohio Oct. 25, 20 12) (granting extension of tim e for service of process when plaintiff failed to dem onstrate good cause but did dem onstrate a good faith effort to com ply with procedural rules). For all of these reasons, the Court concludes that an extension of service of process deadlines is not warranted. Because Wesenberg failed to effect tim ely service 8 of process, the Court grants Schindler's m otion to dism iss. III. CON CLU SION For the foregoing reasons, the Court GRANTS Schindler's m otion to dism iss for insufficiency of service of process. The dism issal is without prejudice to Wesenberg's right to refile against Schindler. 21st New Orleans, Louisiana, this _ _ _ day of Septem ber, 20 15. _____________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 9
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