Burton v. Rich's Carwash LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JASMINE BURTON CIVIL ACTION

VERSUS No. 19-11725

RICH’S CARWASH LLC SECTION I

ORDER & REASONS

Before the Court is a motion1 by defendant, Rich’s Car Wash, LLC (“Rich’s Car

Wash”), to dismiss pro se plaintiff Jasmine Burton’s (“Burton”) claims for insufficient

service of process pursuant to Federal Rule of Civil Procedure 12(b)(5) or, in the

alternative, for failure to state a claim upon which relief can be granted pursuant to

Federal Rule of Civil Procedure 12(b)(6).2 For the following reasons, the motion is

granted as set forth herein.

I.

As set forth in Burton’s complaint, Burton was employed at Rich’s Car Wash

from November 10, 2014 until he was discharged on June 13, 2018.3 Burton, who is

black, alleges that Rich’s Car Wash discriminated against him because of his race

and wrongfully terminated his employment.4 Three or four days before Burton was

fired for “[i]nsubordination and lack of motivation of the other employees,” Burton’s

1 R. Doc. No. 12.

2 Although Burton’s opposition to the motion to dismiss was untimely, the Court

recognizes that leniency may be afforded pro se litigants. See Davis v. Fernandez, 798

F.3d 290, 293 (5th Cir. 2015).

3 R. Doc. No. 4, at 1.

4 See id. at 2.

site manager allegedly blamed Burton for failing to “correct[]” a coworker for playing

a speaker too loudly.5 Burton asserts that white employees were not similarly

disciplined for radio speakers that they brought to work, were assigned different job

responsibilities, and received higher wages than Burton.6 Burton also claims that he

experienced retaliation for certain incidents that occurred while he was work.7

Burton filed a charge of race discrimination and retaliation in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., with the Louisiana

Commission on Human Rights on March 18, 2019.8 On April 23, 2019, the United

States Equal Employment Opportunity Commission (“E.E.O.C.”) dismissed Burton’s

charge because it was unable to conclude from its investigation that the information

obtained established any Title VII violations.9

Thereafter, on July 23, 2019, Burton filed a complaint in this Court against

Rich’s Car Wash,10 and a summons was executed by the United States Marshals

Service. The process receipt and return form indicates that “Doug Freeswick,” who is

5 See id. at 1–2; R. Doc. No. 15, at 2–3.

6 R. Doc. No. 4, at 2; R. Doc. No. 15, at 4–5.

7 With respect to his retaliation claim, Burton does not provide any additional

information beyond his assertion that he “believe[s] that he was discriminated

against based of [sic] race, Retaliation [sic] for an incident that happened prior before

the entire speaker incident.” R. Doc. No. 4, at 2. It is unclear what occurred during

the “incident” to which Burton refers or the nature of the alleged retaliation that

Burton experienced.

8 R. Doc. No. 4-1, at 1.

9 See id. at 2.

10 R. Doc. No. 4. Burton’s first filed complaint, entered on July 15, 2019, was marked

as deficient because Burton failed to properly complete the form to proceed in forma

pauperis. See R. Doc. Nos. 1, 2, & 3. Burton remedied the deficiency on July 23, 2019.

a “Site Manager” at the Rich’s Car Wash location at 4417 Earhart Boulevard in New

Orleans, received service on August 21, 2019.11

II.

A.

“A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency of

the service of process.” Holly v. Metro. Transit Auth., 213 F. App’x 343, 344 (5th Cir.

2007); see Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)

(“Before a federal court may exercise personal jurisdiction over a defendant, the

procedural requirement of service of summons must be satisfied.”). When an objection

to service is made, the plaintiff bears the burden of establishing the validity of service.

Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). “A

litigant’s pro se status neither excuses his failure to effect service nor excuses him for

lack of knowledge of the Rules of Civil Procedure.” Thrasher v. City of Amarillo, 709

F.3d 509, 512 (5th Cir. 2013) (citations omitted).

Pursuant to Federal Rule of Civil Procedure 4(h)(1), unless the defendant has

filed a waiver, service on a corporate entity must be served in a judicial district of the

United States:

(A) in the manner prescribed by [Federal] Rule [of Civil Procedure]

4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an

officer, a managing or general agent, or any other agent

authorized by appointment or by law to receive service of process

and—if the agent is one authorized by statute and the statute so

requires—by also mailing a copy of each to the defendant.

11 See R. Doc. No. 11.

Fed. R. Civ. P. 4(h)(1).12

Federal Rule of Civil Procedure 4(e)(1) provides that an individual may be

served in a judicial district of the United States by following state law for serving a

summons in an action brought in courts of general jurisdiction in the state where the

district court is located or where service is made. Fed. R. Civ. P. 4(e)(1).

Under Article 1266 of the Louisiana Code of Civil Procedure, service of process

on a domestic limited liability company may be made by personal service on any one

of its agents designated for service of process. La. Code Civ. Proc. Ann. art. 1266(A).

If an individual attempting to make service certifies that he is unable, after due

diligence, to serve the designated agent, service of process may be made by any of the

following methods:

(1) Personal service on any manager if the management of the

limited liability company is vested in one or more managers or if

management is not so vested in managers, then on any member.

(2) Personal service on any employee of suitable age and discretion

at any place where the business of the limited liability company

is regularly conducted.

(3) Service of process under the provisions of [LA] R.S. 13:3204, if the

limited liability company is subject to the provisions of [LA] R.S.

13:3201.

La. Code Civ. Proc. Ann. art. 1266(B).

12 See Washington v. Mayweather Promotions, LLC, No. 18-10733, 2019 WL 5684263,

at *1 (E.D. La. Nov. 1, 2019) (applying Rule 4(h)(1) to determine whether a limited

liability company was properly served) (Milazzo, J.); Louviere v. Carewell Hosp., LLC,

No. 18-6419, 2019 WL 2469789, at *1 (E.D. La. June 13, 2019) (Lemmon, J.) (same);

Badeaux v. Grand Isle Marina Constr., LLC, No. 17-4984, 2019 WL 1755523, at *2

(E.D. La. Apr. 18, 2019) (Lemelle, J.) (same).

If the plaintiff has not effected proper service on the defendant within ninety

days after he filed his complaint, the court must dismiss the action without prejudice

or order that service be made within a specified time period. Fed. R. Civ. P. 4(m).

However, if the plaintiff demonstrates “good cause” for the failure to properly effect

service, dismissal is improper, and the court must extend the time for service for an

appropriate period. Id.

To establish good cause, a plaintiff bears the burden of demonstrating “at least

as much as would be required to show excusable neglect.” Winters v. Teledyne Movible

Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985). “[S]imple inadvertence or mistake

of counsel or ignorance of the rules usually does not suffice.” Id. “While the district

court has discretion to extend the time allowed for curing defective service if good

cause is not shown, the court can also refuse to exercise this discretion.” Hawkins v.

Potter, 234 F. App’x 188, 190 (5th Cir. 2007) (citing Thompson v. Brown, 91 F.3d 20,

21–22 (5th Cir. 1996)).

B.

Burton timely had service of process executed, but, according to the defendant,

Burton failed to serve the defendant’s designated agent or one who was otherwise

authorized to accept service. As stated previously, service was executed on Doug

Freeswick at the Rich’s Car Wash location at 4417 Earhart Boulevard in New

Orleans.13 However, according to the defendant, this individual is not its designated

13 See R. Doc. No. 11, at 1.

agent for service.14 Rather, a different individual has been registered with the

Louisiana Secretary of State as the defendant’s designated agent for service of

process.15

Burton has not certified that he was unable, after due diligence, to serve the

defendant’s designated agent pursuant to Louisiana law. See La. Code Civ. Proc. Ann.

art. 1266(B); Fed R. Civ. P. 4(e)(1). He has also not addressed his alleged failure to

serve the proper agent under Federal Rule of Civil Procedure 4(h)(1)(B) or explained

why his service may, in fact, have been proper. Therefore, based on the record

presented, the Court finds that service on Doug Freeswick was improper under

Article 1266 of the Louisiana Code of Civil Procedure and Rule 4 of the Federal Rules

of Civil Procedure.16 Because Burton has not demonstrated good cause for the failure

to properly effect service within ninety days of the filing of his complaint, the action

may be dismissed without prejudice. See Fed. Civ. P. 4(m); Thrasher, 709 F.3d 509 at

512.

III.

Accordingly,

IT IS ORDERED that the motion is GRANTED and that Burton’s complaint

is DISMISSED WITHOUT PREJUDICE.

14 R. Doc. No. 12, at 5.

15 See id. at 5 n.1.

16 Although the defendant has actual notice of Burton’s complaint, “actual notice of

the litigation . . . is insufficient to satisfy Rule 4’s requirements.” Ayika v. Sutton, 378

F. App’x 432, 434 (5th Cir. 2010) (citing Way v. Mueller Brass Co., 840 F.2d 303, 306

(5th Cir. 1988)).

New Orleans, Louisiana, November 22, 2019.

seh AFRICK

UNITED STATES DISTRICT JUDGE