Foster v. ResCare, Inc., No. 2:2016cv00670 - Document 14 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting 11 Motion to Dismiss for Failure to State a Claim.. Signed by Judge Sarah S. Vance on 6/20/16. (jjs)
Download PDF
<![CDATA[
Foster v. ResCare, Inc. Doc. 14 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J OY FOSTER CIVIL ACTION VERSUS NO: 16-670 RESCARE, INC. SECTION: R ORD ER AN D REASON S Defendant Rescare, Inc. m oves the Court to dismiss plaintiff J oy Foster's wrongful term ination suit under Federal Rule of Civil Procedure 12(b)(5) or, in the alternative, Federal Rule of Civil Procedure 12(b)(6).1 Because Foster's service of process was insufficient and the tim e for effective service of process has expired, the Court grants Rescare's m otion under Rule 12(b)(5). I. IN TROD U CTION This case arises out of an em ploym ent dispute between plaintiff J oy Foster and her form er em ployer, Rescare, Inc. Foster claims that Rescare fired her for "leaving a patient group hom e out of com pliance."2 According to 1 R. Doc. 18. 2 R. Doc. 1-1 at 1. Dockets.Justia.com Foster, she was not assigned to the group hom e in question on the day she was fired, so she could not have been responsible for the facility's condition.3 Acting pro se, Foster filed this lawsuit against Rescare in the Civil District Court for the Parish of Orleans. Foster alleges wrongful term ination and seeks "all legal and equitable relief that this Honorable Court shall deem appropriate."4 In her petition, Foster requests that service of process be m ade on "Doris Kirkpatrick in her capacity as H.R. Rep for Rescare, Inc."5 Rescare rem oved the case to this Court on the basis of diversity jurisdiction alleging, am ong other things, that it had not been properly served with suit papers.6 After rem oval, attorney Dem etrie Ford enrolled as counsel for Foster.7 Rescare then filed a m otion to dism iss Foster's suit under Federal Rule of Civil Procedure 12(b)(5) for in sufficient service of process and under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim .8 Foster 3 Id. 4 Id. at 1-2. 5 Id. at 2. 6 R. Doc. 1 at 2 ¶ 1. 7 R. Doc. 10 (order granting Dem etrie Ford's m otion to enroll as counsel of record). 8 R. Doc. 11. 2 has not opposed Rescare's m otion. Nor has she subm itted returns of service or other papers docum enting her attem pts to serve Rescare. 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). Rescare argues that after Foster filed suit in state court, she failed to serve process as required by Louisiana law.9 Rescare also contends that after this suit was rem oved to federal court, Foster took no new steps to effectuate service of process. 10 A. Se rvice in State Co u rt After a case is rem oved to federal court, federal law, not state law, governs the course of later proceedings. Granny Goose Foods, Inc. v. Team sters Local 70 , 415 U.S. 423, 437 (1975). Nonetheless, federal courts in 9 10 R. Doc. 11-1 at 3. Id. at 4. 3 rem oved cases look to the law of the forum state to determ ine whether service of process was perfected prior to rem oval. Freight Term inals, Inc. v. Ry der Sy s., Inc., 461 F.2d 10 46, 10 52 (5th Cir. 1972). Under Louisiana law, a corporation ordinarily m ust be served by personal process on its registered agent. La. Code Civ. Proc. Ann. art. 1261. If the corporation does not have a registered agent, or if the person attem pting service certifies that she is unable, after due diligence, to serve the designated agent, 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. Im portantly, "[a] plaintiff m ust first m ake a diligent effort to serve a corporation's registered agent for service of process before using an alternative form of service on a corporation." Scott Fence Indus., Inc. v. N euenhaus, 490 So. 2d 1132, 1134 (La. App. 5 Cir. 1986) (citing La. Code Civ. Proc. Ann. art. 1261). Here, Rescare has designated CT Corporation System as its registered agent.11 Rescare subm its that it has not been served with process through CT Corporation System . Citing Foster's request in her petition that service of process be m ade on "Doris Kirkpatrick in her capacity as H.R. Rep for Rescare, Inc,"12 Rescare suggests that service was instead m ade on one of its em ployees. 11 R. Doc. 11-2 at 1. 12 Id. at 2. 4 Foster does not dispute this claim . Nor does she explain why she did not serve Rescare through CT Corporation System. Thus, Foster has not shown cause for failing to serve Rescare's registered agent, and her attem pt to serve process on Rescare through its em ployee was insufficient under Louisiana law. See Barrow v. Fair Grounds Corp., 782 So. 2d 697, 70 1 (La. App. 4 Cir. 20 0 1) ("[I]f personal service was not m ade on such agent, then the process server m ust certify that he was 'unable, after due diligence, to serve the designated agent' before an alternative m eans of service becom es acceptable. . . ."). The Court therefore finds that Foster did not validly serve process in state court before Rescare filed its notice of rem oval.13 B. Se rvice in Fe d e ral Co u rt "When a case is rem oved to federal court, a plaintiff m ay be afforded additional tim e to com plete service or to obtain issuance of new process if, prior to the case's rem oval, 'service of process has not been perfected prior to 13 Although no party briefs the issue, Rescare was not required to wait until it was properly served to rem ove this case. As the Fifth Circuit has explained, service of process is "not an absolute prerequisite to rem oval." Delgado v. Shell Oil Co., 231 F.3d 165, 177 (5th Cir. 20 0 0 ). Once Foster com m enced this action by filing her state-court petition, Rescare was perm itted to rem ove without waiting to see when, if ever, Foster would perfect service of process. Id. (finding that the rem oval statutes "require that an action be com m enced against a defendant before rem oval, but not that the defendant have been served"); North v. Precision Airm otive Corp., 60 0 F. Supp. 2d 1263, 1270 (M.D. Fla. 20 0 9) ("[A]n unserved defendant in receipt of the com plaint m ay rem ove prior to service . . . ."). 5 rem oval,' or 'process served proves to be defective.'" Rice v. Alpha Sec., Inc., 556 F. App'x 257, 260 (4th Cir. 20 14) (citing 28 U.S.C. § 1448). Federal Rule of Civil Procedure 4(m ) gives federal litigants 90 days to serve process. Fed. R. Civ. P. 4(m ). Thus, a plaintiff who does not perfect service of process in state court has 90 days from the date of rem oval in which to com plete the task. See Rice, 556 F. App'x at 260 ; W allace v. Microsoft Corp., 596 F.3d 70 3, 70 6 (10 th Cir. 20 10 ) (finding under earlier version of Rule(m ) that "once [plaintiff's] case was rem oved, he then had 120 days in which to effect service"); Lee v. City of Fay etteville, No. 5:15-CV-638-FL, 20 16 WL 1266597, at *3 (E.D.N.C. Mar. 30 , 20 16) ("Because service had not been perfected at the tim e of rem oval, plaintiff was provided an additional 90 days in which to serve process on defendant Fayetteville."). Rescare rem oved this case on J anuary 25, 20 16, and m ore than 90 days have passed since that date. Rescare asserts, and Foster does not dispute, that Foster m ade no new attem pt to serve process during that tim e. Thus, Foster has failed to effect tim ely service of process. Under Rule 4(m ), a district court has two choices when a plaintiff fails to serve a defendant within 90 days: 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 district court m ust extend the tim e of service for an appropriate period. Id. 6 Accordingly, the Court approaches Rescare's m otion to dism iss in two steps. First, the Court m ust determ ine whether Foster has dem onstrated good cause for her 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 Foster's claim s against Rescare 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[.]" Id. (quoting W inters v. Teledy ne, 776 F.2d 130 4, 130 6 (5th Cir. 1985)). Although Foster initially filed suit in state court as a pro se plaintiff, she is now represented by counsel.14 Nonetheless, Foster has not responded to Rescare's m otion to dism iss. Nor has she m ade any effort to show good cause for her failure to serve Rescare in accordance with Louisiana law and the applicable Federal Rules of Civil Procedure. 14 In any event, "pro se status does not excuse a litigant's com plete failure to effect service." Sy st. Signs, 90 3 F.2d at 10 13. 7 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)). Foster 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. Foster's silence is itself reason for the Court to decline to exercise its discretionary power in her 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, Foster has identified no evidence of evasiveness or trickery by Rescare that m ight warrant an extension of tim e to effectuate proper service. For these reasons, the Court concludes that an extension of Foster's service of process deadlines is not warranted. Because Foster failed to effect tim ely service of process, the Court grants Rescare's m otion to dism iss under Federal Rule of Civil Procedure 12(b)(5). 8 III. CON CLU SION For the foregoing reasons, the Court GRANTS Recare's m otion to dism iss for insufficient service of process. The dism issal is without prejudice to Foster's right to refile against Rescare. 20th New Orleans, Louisiana, this _ _ _ day of J une, 20 16. ___________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 9
]]>
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.
