Doe et al v. St. James Parish School Board et al, No. 2:2015cv05370 - Document 22 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting 18 Motion to dismiss for insufficient service of process. The dismissal is without prejudice to plaintiffs' right to refile against defendants.. Signed by Judge Sarah S. Vance on 4/18/16. (jjs)
Download PDF
<![CDATA[
Doe et al v. St. James Parish School Board et al Doc. 22 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J OHN DOE, ET AL. CIVIL ACTION VERSUS NO: 15-5370 ST. J AMES PARISH SCHOOL BOARD, ET AL. SECTION: R ORD ER AN D REASON S Defendants m ove the Court to dism iss this Section 1983 case under Federal Rule of Civil Procedure 12(b)(5) and Federal Rule of Civil Procedure 12(b)(2).1 Because plaintiffs' service of process was insufficient and the tim e for effective service of process has expired, the Court grants defendants' m otion under Rule 12(b)(5). I. IN TROD U CTION Plaintiffs J ohn and J ane Doe filed this 42 U.S.C. § 1983 lawsuit on behalf of their child, Child Doe, alleging constitutional violations in connection with Child Doe's suspension and expulsion from the St. J am es Parish Math and Science Academ y in Septem ber 20 15.2 Plaintiffs nam e as defendants the St. J am es Parish School Board, seven School Board m em bers, and four 1 R. Doc. 18. 2 R. Doc. 1. Dockets.Justia.com administrative school officials.3 Plaintiffs sue all eleven Individual Defendants in both their individual and their official capacities.4 In their com plaint, plaintiffs seek a declaratory judgm ent that "[Child Doe] has been deprived unlawfully of life, liberty, and property within the m eaning of the Fourteenth Am endm ent to the Constitution of the United States."5 They also seek an injunction requiring defendants to reinstate Child Doe as a regular student at the school, as well as com pensatory dam ages, costs, and attorney fees. 6 Plaintiffs filed their com plaint on October 22, 20 15 and filed returns of service for all defendants into the record on February 19, 20 16 and March 24, 20 16.7 The returns of service indicate that a process server served the School Board and each of the Individual Defendants on the sam e day--October 26, 20 15--using the sam e method--personal delivery to an individual nam ed Betty Foster. Specifically, plaintiffs' returns of service for the eleven Individual Defendants describe the m ethod of service as follows: "[s]um m ons and com plaint deliver[]ed to Betty Foster, an em ployee at St. J am es Parish School 3 Id. at 1, 2. 4 Id. at 1. 5 Id. at 10 -11. 6 Id. at 11. 7 R. Docs. 16, 20 . 2 Board Central Office, on Oct 26, 20 15."8 As to the School Board, the return of service states: "I served the sum m ons on Betty Foster, who is designated by law to accept service of process on behalf of [] St. J am es Parish School Board on October 26, 20 15."9 None of the returns of service provides additional details about either Betty Foster or the circum stances surrounding the process server's efforts to serve the defendants. Defendants m ove to dism iss plaintiffs' com plaint under Federal Rules of Civil Procedure 12(b)(5) for insufficient service of process and under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction.10 Plaintiffs oppose the m otion on the grounds that personal delivery to Betty Foster sufficed to perfect service on the School Board and the Individual Defendants.11 8 See id. 9 R. Doc. 16-4 at 2. 10 R. Doc. 18. 11 R. Doc. 19. 3 II. D ISCU SSION 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). Defendants challenge the sufficiency of plaintiffs' service of both the School Board and the Individual Defendants (school board m em bers and adm inistrative officials). The Court considers the two sets of defendants in turn. A. Th e St. Jam e s Paris h Sch o o l Bo ard Because the School Board is a political subdivision, see La. Const. Ann. art. VI, § 44(2); La. Rev. Stat. § 17:51, service of process is governed by Federal Rule of Civil Procedure 4(j)(2). Under Rule 4(j)(2), a plaintiff that sues a "state-created governm ental organization" m ust serve process on the defendant by either (1) "delivering a copy of the sum m ons and of the com plaint to its chief executive officer," or (2) "serving a copy of each in the m anner prescribed by that state's law for serving a sum m ons or like process on such a defendant." Fed. R. Civ. P. 4(j)(2). 4 Here, plaintiffs filed a return of service, in which the process server declared that he personally delivered the sum m ons and the com plaint to an individual nam ed Betty Foster. Although the return of service describes Betty Foster as som eone with legal authority to accept service of process on the School Board's behalf, it provides no additional inform ation about her title or em ploym ent duties. Defendants contend that Betty Foster works as a receptionist as the School Board's central office. Plaintiffs do not dispute this account; nor do they provide any evidence or argum ent that Betty Foster serves as the School Board's chief executive officer. Accordingly, plaintiffs' service of process did satisfy the first m ethod authorized by Rule 4(j)(2). Turning to the second m ethod authorized by Rule 4(j)(2), the parties dispute which source of Louisiana law provides the procedures for serving process on a parish school board. According to defendants, the issue is governed by Louisiana Revised Statute § 17:51. That statute provides that parish school boards are bodies corporate with the power to sue and be sued and that "[i]n suits against school boards citation shall be served on the president of the board and in his absence on the vice-president." La. Rev. Stat. § 17:51. Plaintiffs argue that a second source of law, Article 1265 of Louisiana's Code of Civil Procedure, establishes the procedures for serving parish school boards as political subdivisions. Article 1265 provides that "service of citation 5 or other process on any political subdivision . . . is m ade at its office by personal service upon the chief executive officer thereof, or in his absence upon any em ployee thereof of suitable age and discretion." La. Code Civ. Proc. art. 1265. This dispute presents a straightforward issue of statutory interpretation. In Louisiana, "when two statutes apply to the sam e situation, the specific statute prevails over the general one." Silver Dollar Liquor, Inc. v. Red River Par. Police Jury , 74 So. 3d 641, 648 (La. 20 11) (citing Burge v. State, 54 So.3d 1110 , 1113 (La. 20 11)). Of the two sources of law that purport to govern service of process on the School Board, Louisiana Revised Statute § 17:51 is far m ore specific. While Article 1265 applies to all political subdivisions, the rules set forth in Louisiana Revised Statute § 17:51 apply only in "in suits against school boards." The Court therefore finds that Louisiana Revised Statute § 17:51 governs the procedures for serving process on the School Board to the exclusion of Article 1265. Other federal district courts and Louisiana state courts have reached the sam e conclusion. See Randolph v. E. Baton Rouge Par. Sch. Bd., No. CV 15-654-SDD-EWD, 20 16 WL 868230 , at *2 (M.D. La. Mar. 4, 20 16) (collecting cases); Spears v. Jefferson Par. Pub. Sch. Sy s., No. CIV.A. 12-1991, 20 13 WL 1868456, at *3 (E.D. La. May 2, 20 13) (noting that La. Rev. Stat. § 17:51 governs requirem ents of serving process on parish school 6 boards); Jackson v. St. John the Baptist Par. Sch. Bd., 121 So. 3d 164, 169 (La. App. 5 Cir. 20 13) (rejecting argum ent that Article 1265 governs service of process on parish school boards and holding that "the m ore specific application of [Louisiana Revised Statute § 17:51] to school boards controls"). Plaintiffs resist this conclusion by arguing that Louisiana Revised Statute § 17:51 and Article 1265 are "com plim entary" provisions.12 Specifically, plaintiffs argue that Louisiana Revised Statute § 17:51 identifies the "who" of service--which school board m em bers m ust be served to perfect service on the school board--while Article 1265 provides rules on "how" service should be perform ed--that is, personal service on the school board's chief executive officer or, in his absence, to any em ployee of suitable age and discretion.13 But Louisiana Revised Statute § 17:51 provides specific rules that plaintiffs m ust follow when serving process on a parish school board. For instance, plaintiffs m ust serve citation "on the president of the board and in his absence on the vice-president." La. Rev. Stat. § 17:51 (em phasis added). Plaintiffs' reading of Article 1285 renders these rules superfluous by perm itting plaintiffs, in the chief executive officer's absence, to serve process on any school board "em ployee [] of suitable age and discretion." The specific-general canon of 12 R. Doc. 19 at 6. 13 Id. at 4. 7 statutory interpretation prohibits this result. See RadLAX Gatew ay Hotel, LLC v. Am algam ated Bank, 132 S. Ct. 20 65, 20 71 (20 12) ("[T]he canon avoids the superfluity of a specific provision that is swallowed by the general one, violat[ing] the cardinal rule that, if possible, effect shall be given to every clause and part of a statute."). As noted, plaintiffs' return of service indicates that the process server delivered the sum m ons and the com plaint to Betty Foster. Because plaintiffs have produced no evidence indicating that Betty Foster serves as the School Board's president or vice-president, plaintiffs fail to establish that the School Board was validly served under Louisiana law. See Randolph, 20 16 WL 868230 , at *2 (finding that parish school board was not properly served when plaintiffs delivered sum m ons to a school board em ployee); Jackson, 121 So. 3d at 169 (sam e). Because plaintiffs' service of process on the School Board did not satisfy either of the m ethods authorized by Rule 4(j)(2), plaintiffs' claim s against the School Board are subject to dism issal for insufficient service of process under Rule 12(b)(5). B. Th e In d ivid u al D e fe n d an ts In addition to the School Board, plaintiffs assert Section 1983 claim s against seven School Board m em bers and four adm inistrative school officials. Plaintiffs sue each Individual Defendan t in both their individual and their 8 official capacities. The Individual Defendants argue that plaintiffs' claim s should be dism issed because the Individual Defendants were not served in their individual capacities. "[T]he fact that an individual state actor m ay be sued in his or her official capacity does not obviate the necessity for appropriate service of process for suit in a person's individual capacity." Judeh v. Louisiana State Univ. Sy s., No. 12– 1758, 20 13 WL 654921, at *3 (E.D. La. Feb. 20 , 20 13); see also Robinson v. Turner, 15 F.3d 82, 85 (7th Cir. 1994) ("Service upon an em ployee in his official capacity does not am ount to service in his individual capacity."). Federal Rule of Civil Procedure 4(e) sets forth the procedural requirem ents for serving individual defendants. Rule 4(e) provides that a federal litigant m ay serve an individual defendant by following the procedural m ethods of service provided by the state in which the district court is located, Fed. R. Civ. P. 4(e)(1), or by doing any of the following: (1) "delivering a copy of the sum m ons and of the com plaint to the individual personally"; (2) "leaving a copy of each at the individual's dwelling or usual place of abode with som eone of suitable age and discretion who resides there"; or (3) "delivering a copy of each to an agent authorized by appointm ent or by law to receive service of process." Fed. R. Civ. P. 4(e)(2). 9 Here, plaintiffs' returns of service indicate that each Individual Defendants was served in the sam e way--by "deliver[y] to Betty Foster, an em ployee at St. J am es Parish School Board Central Office." Delivering a sum m ons and com plaint to an em ployee at a defendant's workplace does not constitute personal service; nor does it qualify as service at a defendant's "dwelling or usual place of abode." See Marshall v. W arw ick, 155 F.3d 10 27, 10 30 (8th Cir. 1998) ("[L]eaving a copy of the sum m ons at the defendant's place of em ploym ent, when the service of process statute requires that the server leave it at the defendant's dwelling, is not valid service of process."); W est v. Paige, 835 F. Supp. 20 , 22 (D. Me. 1993) ("The defendant Nappi was ostensibly served through service upon a secretary at his place of em ploym ent. This does not satisfy the service requirem ents of [Rule 4]."). As to the final m ethod of service authorized by Rule 4(e)(2), plaintiffs have produced no evidence dem onstrating that any Individual Defendant has appointed Betty Foster to accept service of process on his or her behalf. Cf. Allison v. Utah Cty . Corp., 335 F. Supp. 2d 1310 , 1314 (D. Utah 20 0 4) (finding that service on individual defendant was invalid when plaintiff left sum m ons and com plaint with receptionist at defendant's office, absent showing that defendant had authorized anyone to accept service on her behalf). Thus, plaintiffs' service on 10 the Individual Defendants did not com ply with any of the m ethods authorized by Rule 4(e)(2). Turning to state law, Louisiana generally requires personal or dom iciliary service, or service on a defendant's authorized representative. La. Code Civ. Proc. Ann. arts. 1231, 1232, 1234, 1235. Louisiana law does not authorize service of an individual at the individual's place of work. See Jason v. Nugent, No. CIV.A. 0 4-1722, 20 0 5 WL 5330 1, at *2 (E.D. La. J an. 7, 20 0 5). Accordingly, plaintiffs' attem pted service on the Individual Defendants was not sufficient under Rule 4(e)(1). Plaintiffs resist this conclusion by arguing that each Individual Defendant was properly served under Article 1265 of the Louisiana Code of Civil Procedure.14 As relevant here, Article 1265 provides that "[a] public officer, sued as such, m ay be served at his office either personally, or in his absence, by service upon any of his em ployees of suitable age and discretion." La. Code Civ. Proc. art. 1265. Plaintiffs argue that their service com plied with this article because Betty Foster is a School Board em ployee of suitable age and discretion, who is therefore authorized by law to accept service of process on the Individual Defendants' behalf. 14 R. Doc. 19 at 9. 11 This argum ent fails for two reasons. First, by its term s, Article 1265 applies only to public officers who are "sued as such"--that, is who are sued in their official capacities. See Gilm ore v. W olfe, No. CV 15-0 0 280 -BAJ -RLB, 20 16 WL 438978, at *2 (M.D. La. Feb. 3, 20 16) (noting that Article 1265 governs service of individuals sued in their official capacity); see also 1 La. Civ. L. Treatise, Civil Procedure § 8:4 (2d ed.) ("A public officer is 'sued as such' when he or she has no personal responsibility, but is nam ed only because the officer is the proper party defendant for asserting the claim against the entity."). As noted, defendants who are sued in their individual capacity in a Section 1983 action m ust be served as individuals under Rule 4(e). Judeh, 20 13 WL 654921, at *3. Serving a public official in his or her official capacity under Article 1265, as plaintiffs claim to have done here, does not constitute individual service and is therefore insufficient. Second, even if Article 1265 did provide a m ethod for effectuating individual service, plaintiffs fail to dem onstrate com pliance with that article's requirements. Although Article 1265 contemplates service on a public official's em ployee in certain circum stances, such service is appropriate only "in [the public official's] absence" from the workplace. La. Code Civ. Proc. art. 1265. In other circum stances, a public official should be served personally at his or her office. Here, plaintiffs do not assert that they failed to personally serve the 12 Individual Defendants because the Individual Defendants were absent from work. Indeed, they provide no explanation whatsoever for serving all eleven Individual Defendants by delivering sum m onses and copies of the com plaint to an "em ployee at St. J am es Parish School Board Central." Thus, plaintiffs fail to dem onstrate that their service of the Individual Defendants was proper even under La. Code Civ. Proc. art. 1265. See Gilm ore, 20 16 WL 438978, at *2 (finding service im proper under Article 1265 when plaintiff delivered sum m ons to defendants' workplace but failed to dem onstrate defendants' absence from the office). For these reasons, plaintiffs' service of the Individual Defendants did not com ply with Rule 4(e). Accordingly, plaintiffs' claim s against the Individual Defendants are also subject to dism issal for insufficient service of process under Rule 12(b)(5). C. Ru le 4 ( m ) Rule 4(m ) gives plaintiffs 120 days to serve the School Board and the Individual Defendants. Plaintiffs filed their com plaint on October 22, 20 15, and m ore than 120 days have passed since that date. 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 ). 13 If, however, the plaintiff shows good cause for the failure, the district court m ust extend the tim e of service for an appropriate period. Id. Accordingly, the Court approaches defendants' m otion to dism iss in two steps. First, the Court m ust determ ine whether plaintiffs have dem onstrated good cause for their failure to effectuate 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 plaintiffs' claim s against defendants without prejudice or extend the tim e for service. See 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, e.g., 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 ). 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 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, plaintiffs' only argum ent against dism issal is that service by delivery to Betty Foster, an "em ployee at St. J am es Parish School Board Central Office," was sufficient as to all defendants. Plaintiffs m ake no 14 attem pt to dem onstrate good cause for their failure to serve defendants in accordance with state law and the applicable Federal Rules of Civil Procedure. That plaintiffs failed to grasp the requirem ents for serving the School Board and the Individual Defendants does not constitute good cause for an extension of tim e. 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." New by v. Enron Corp., 284 F. App'x 146, 149 (5th Cir. 20 0 8) (quoting Fed. R. Civ. P. 4(m ) advisory com m ittee's note (1993)). Plaintiffs have not briefed the statute of lim itations issue; nor have they asked the Court for an extension of the tim e period for serving process. Plaintiffs' silence is itself reason for the Court to decline to exercise its discretionary power in their favor. 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, plaintiffs have identified no evidence of evasiveness or trickery that m ight warrant an extension of tim e to effectuate proper service. For these 15 reasons, the Court concludes that an extension of plaintiffs' service of process deadlines is not warranted. Because plaintiffs failed to effect tim ely service of process, the Court grants defendants' m otion to dism iss. III. CON CLU SION For the foregoing reasons, the Court GRANTS defendants' m otion to dism iss for insufficient service of process. The dism issal is without prejudice to plaintiffs' right to refile against defendants. New Orleans, Louisiana, this _ _ _ day of April, 20 16. 18th ___________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 16
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
