Pablovich v. Rooms To Go Louisiana Corp.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BLAKE PABLOVICH CIVIL ACTION

VERSUS NO. 20-617

ROOMS TO GO LOUISIANA CORP. SECTION "L" (5)

ORDER & REASONS

Pending before the Court is Defendant’s Motion to Dismiss for Failure to State a Claim

and for Insufficient Service of Process Pursuant to Rule 12(b)(5), R. Doc. 13. Plaintiff opposes the

motion, R. Doc. 15, and Defendant has filed a reply, R. Doc. 19. Having considered the parties’

arguments and the applicable law, the Court now rules as follows.

I. BACKGROUND:

This case arises from the collapse of a chair and the ensuing bodily injuries sustained by

its occupant, Plaintiff Blake Pablovich. Plaintiff claims that on September 13, 2019, while

shopping for a dining room table and chairs in a Rooms to Go store located in Gretna, Louisiana,

she sat in a Sabre Springs Espresso Side Chair that collapsed, “throwing Plaintiff backwards to the

floor of the store” and causing “injuries to her left arm, left shoulder, left elbow, neck, back, and

head.” R. Doc. 1 ¶ 5–8.

Based on the foregoing factual allegations, Plaintiff filed suit against Defendant Rooms To

Go Louisiana Corp. (“Rooms to Go”), alleging that it is liable under the Louisiana Products

Liability Act (“LPLA”) under theories of defective construction, defective design, and lack of

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adequate warnings.1 Id. ¶ 10-19. In addition to her LPLA claims, Plaintiff brings an additional

cause of action for negligent misrepresentation with respect to the chair’s fitness for its intended

use and its merchantability. Id. ¶ 20-26. Plaintiff seeks to recover for medical expenses, physical

pain and suffering, mental anguish, physical disfigurement and impairment, and loss of earnings

and earnings capacity. Id. at 5–6.

Defendant has not yet answered the Complaint.

I. PENDING MOTION

Defendant Rooms to Go has filed a motion to dismiss for insufficient service of process

pursuant to Federal Rule of Civil Procedure 12(b)(5) and for failure to state a claim for negligent

misrepresentation pursuant to Rule 12(b)(6). R. Doc. 13. First, Defendant contends service of

process was improper because it was untimely. R. Doc. 13-1 at 2. Second, Defendant contends that

although the Summons and Complaint were delivered to Rooms to Go’s corporate headquarters in

Seffner, Florida, by FedEx on June 29, 2020, service of process was improper because Rooms to

Go is authorized to do business in Louisiana and has designated an agent for service of process in

the state. Id. at 2. Third, Defendant alleges Plaintiff’s negligent misrepresentation claim should be

dismissed pursuant to Rule 12(b)(6), because the claim contravenes the LPLA’s exclusive remedy

provision and fails as a matter of law. Id. at 7.

In opposition, Plaintiff admits oversight in effecting service upon Rooms to Go but

contends that the service of process issue has since been cured and is now moot. R. Doc. 15 at 1.

In Plaintiff’s view, the Summons and Complaint were properly served upon Defendant’s

1 Plaintiff originally sued Rooms to Go Louisiana Corp. and Rooms to Go, Inc. R. Doc. 1. On July 24,

2020, Plaintiff moved to voluntarily dismiss Rooms to Go, Inc., on the basis that it had been improperly named. R.

Doc. 14. The motion was granted, and this Order and Reaons accordingly refers to Rooms to Go Louisiana Corp. as

the only Defendant.

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designated Louisiana service of process agent on July 22, 2020. Id. at 2. With respect to the

negligent misrepresentation claim, Plaintiff acknowledges the exclusivity provisions of the LPLA

but argues that dismissal of any non-LPLA claims is inappropriate until it is decided whether

Defendant is a manufacturer under the LPLA. Id. at 1. To this extent, she argues the motion is

premature. Id. at 5.

Defendant has filed a reply, arguing that dismissal is warranted because the July 22, 2020

attempt at service was also improper and because Plaintiff has offered no excuse to justify the 165-

day delay. R. Doc. 19. Defendant also argues that Plaintiff failed to successful plead her LPLA

and negligent misrepresentation claims in the alternative, requiring dismissal of the incompatible

negligent misrepresentation claim. Id. at 3. To the extent that Plaintiff has attempted to plead in

the alternative, Defendant requests that the Court order Plaintiff to amend her complaint with a

more definite statement under Rule 12(e).

II. LAW & DISCUSSION

A. Rule 12(b)(5)

Pursuant to the Federal Rules of Civil Procedure, the Court is authorized to dismiss a civil

action for insufficiency of service of process. Fed. R. Civ. P. 12(b)(5); see also Kreimerman v.

Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir. 1994) (“A district court . . . has broad

discretion to dismiss an action for ineffective service of process.”). Absent proper service of

process, the court cannot exercise jurisdiction over a party named as a defendant. Murphy Bros.,

Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). “When service of process is

challenged, the serving party bears the burden of proving its validity or good cause” for failing

properly to effect service. Shabazz v. City of Houston, 515 F. App'x 263, 264 (5th Cir. 2013)

(quoting Sys. Signs Supplies v. U.S. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990) (per

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curiam)). Defendant argues service was untimely, in violation of Rule 4(m), and improper, in

violation of Rule 4(h).

Federal Rule of Civil Procedure 4(m) requires the dismissal of an action against a

defendant who has not been served within 90 days after the filing of the complaint. Fed. R. Civ. P.

4(m). If a plaintiff shows “good cause,” the court must extend the time for service. Id. Plaintiff, as

the serving party, bears the burden of proving the validity of service or good cause for failure to

timely serve. See Sys. Signs Supplies, 903 F.2d at 1013; Familia De Boom v. Arosa Mercantil,

S.A., 629 F.2d 1134, 1139 (5th Cir. 1980). However, “even if good cause is lacking, the court has

discretionary power to extend time for service.” Newby v. Enron Corp., 284 Fed. Appx. 146 (5th

Cir. 2008) (citing Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996)).

The parties do not dispute that service was untimely. Indeed, the Complaint was filed on

February 20, 2020, meaning that service was required by May 20, 2020 under Rule 4(m). On June

29, 2020, Plaintiff delivered a copy of the Summons and Complaint to Defendant’s headquarters

in Seffner, Florida, via Federal Express, in what Defendant characterizes as an improper attempt

to effect service of process under Rule 4(h)(1). In her opposition, Plaintiff acknowledges that

service was improper under Rule 4(h) because, as Defendant is authorized to do business in

Louisiana, service must be effected upon Defendant’s designated registered agent for service of

process. However, Plaintiff avers she properly served Defendant through its registered agent on

July 22, 2020, mooting the instant motion. R. Doc. 15 at 2.

Before considering timeliness, the Court first analyzes whether this second attempt at

service was proper. Federal Rule of Civil Procedure 4(h) provides that service of a corporation in

the United States can be achieved in two ways. First, a plaintiff can serve a corporation by

following the law of the state in which the district court is located or service is effected. Under

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Louisiana law, service on a corporation requires “personal service on any one of its agents for

service of process.” La. Code Civ. P. 1261(A). Alternatively, a plaintiff may deliver a copy of the

summons to an officer, a managing or general agent, or any other agent authorized by appointment

or law to receive service of process. Fed. R. Civ. P. 4(h)(1).

Here, Plaintiff has plainly failed to properly serve Defendant under Rule 4(h), as service

of process via Federal Express does not comply with the personal service requirements of either

Louisiana Code of Civil Procedure Article 1261(A) or Rule 4(h)(1)(B). See Factor King, LLC v.

Block Builders, LLC, et al., No. CV 14-00587-BAJ-RLB, 2016 WL 723016, at *2 (M.D. La. Feb.

22, 2016) (“[T]he Federal Express shipment does not comply with the personal service

requirements under Louisiana law or Rule 4(h)(1), which do not permit service by mail.”);

Pellerin-Mayfield v. Goodwill Indus., No. CIV.A. 03-3774, 2003 WL 21474649, at *1 (E.D. La.

June 20, 2003) (“Plaintiff's service of defendant by mailing a copy of the complaint to defendant's

registered agent was ineffective because it did not comply with the personal service requirements

of Louisiana law and Rule 4(h)(1).”). Accordingly, Plaintiff has not yet served Defendant in this

matter and her claims are subject to dismissal under Rule 4(m).

At this juncture, the Court must consider whether good cause exists to excuse Plaintiff’s

procedural failure. To establish “good cause,” a plaintiff must “demonstrate 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 do not suffice.” Lindsey v. U.S. R.R. Ret., 101 F.3d 444,

446 (5th Cir. 1996) (quoting Peters v. United States, 9 F.3d 344, 345 (5th Cir. 1993)). In addition,

“some showing of ‘good faith on the part of the party seeking an enlargement and some reasonable

basis for noncompliance within the time specified’ is normally required.” Winters v. Teledyne

Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985) (quoting 10 Wright & Miller Federal

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Practice and Procedure: Civil § 1165 at 622) (emphasis omitted). Plaintiff’s explanation does not

adequately explain why she failed to properly serve Defendant within 90 days; in fact, it does not

address the delay at all. Although Plaintiff’s opposition addresses her reasons for originally

directing service to Rooms to Go’s headquarters in Florida, rather than to the local designated

agent, she provides absolutely no justification for the delay.2

Nevertheless, the Court “has discretion to extend the time for service of process even if

the plaintiff cannot demonstrate good cause.” Lee v. OfferUp, Inc., No. CV 17-1609, 2018 WL

1326154, at *4 (E.D. La. Mar. 15, 2018). The Court is prepared to to exercise its discretionary

power and excuse the deficiency here. Notably, Defendant was apparently on notice of the

likelihood of litigation due to the receipt of a letter of representation from Plaintiffs’ counsel after

the incident. R. Doc. 15 at 2. Additionally, although the time for service has long passed, the Court

recognizes that Plaintiff has twice attempted to serve Defendant, albeit incorrectly, and that the

effects of the ongoing global pandemic of COVID-19 have significantly impacted the normal order

of business. Further, the Court is hesitant to penalize Plaintiff for what surely amounts to her

attorney’s error. Accordingly, the Court will extend the time for service of process and require

Plaintiff to properly serve Defendant within thirty days of this Order’s issuance. Failure to do so

will result in dismissal.

B. Exclusivity of the LPLA

Defendant also moves to dismiss Plaintiff’s negligent misrepresentation claim on the

grounds that the claim is precluded by the LPLA’s exclusivity provision. R. Doc. 13-1 at 7.

Defendant’s recitation of the law is undisputed and undoubtedly correct. The LPLA “establishes

2 Plaintiff’s opposition only addresses the circumstances surrounding the attempted service on June 29, 2020.

Even if this service was proper, which is universally denied, Plaintiff fails to address why it occurred thirty-nine days

after Rule 4(m)’s ninety-day deadline.

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the exclusive theories of liability for manufacturers for damage caused by their products.” La. R.S.

§ 9:2800.52; see Chevron USA, Inc. v. Aker Mar., Inc., 604 F.3d 888, 900 (5th Cir. 2010). In other

words, “[a] plaintiff may not recover from a manufacturer for damage caused by a product on the

basis of any theory of liability not set forth in the LPLA.” Jefferson v. Lead Indus. Ass'n, Inc., 930

F. Supp. 241, 244–45 (E.D. La. 1996), aff'd, 106 F.3d 1245 (5th Cir. 1997).

Federal Rule of Civil Procedure 8(d)(2) allows a party to “set out 2 or more statements of

a claim or defense alternatively or hypothetically, either in a single count or defense or in separate

ones.” Fed. R. Civ. P. 8(d)(2). It appears as though Plaintiff has attempted to take advantage of

this rule in crafting her complaint, which can be construed as setting forth two alternative theories

of liability: (1) products liability under the LPLA if Defendant is a “manufacturer” under the

statute; or (2) common law negligent misrepresentation if Defendant is not. However, Defendant

argues that Plaintiff has unsuccessfully pleaded these causes of action in the alternative because

she categorically alleges that Rooms to Go is a manufacturer, a position incompatible with a

negligent misrepresentation claim. R. Doc. 19. Accordingly, Defendants seek dismissal of the

negligent misrepresentation claim or an order that Plaintiff provide a more definite statement.

Federal Rule of Civil Procedure 12 allows a party to move for a more definite statement

when the pleading “is so vague or ambiguous that the party cannot reasonably prepare a response.”

Fed. R. Civ. P. 12(e). Rule 12(e) motions are generally disfavored, given Rule 8’s liberal pleading

standards, but may be appropriate “[i]f a pleading fails to specify the allegations in a manner that

provides sufficient notice.” Williams v. United Parcel Servs., Inc., No. CV 17-483-SDD-RLB,

2018 WL 1189687, at *4 (M.D. La. Mar. 7, 2018) (quoting Swierkiewicz v. Sorema N. A., 534 U.S.

506, 514, 122 S. Ct. 992, 998, 152 L. Ed. 2d 1 (2002)).

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Here, Plaintiffs Complaint’s charges Defendant, “[a]s the distributor and manufacturer of

the subject product, . . . with knowledge of all defects.” R. Doc. 1 § 21. Plaintiff's allegation of

Defendant’s status as a manufacturer precludes the negligent misrepresentation claim as a matter

of law. Nevertheless, in light of Plaintiff's opposition, the Court recognizes that Plaintiff intended

to plead these claims in the alternative and will accordingly grant Plaintiff the opportunity to

properly do so. In so ruling, the Court heeds the Fifth Circuit’s instruction that a court should

generally avoid dismissing a claim “without granting leave to amend, unless the defect is simply

incurable or the plaintiff has failed to plead with particularity after being afforded repeated

opportunities to do so.” Hart v. Bayer Corp., 199 F.3d 239, 248 (Sth Cir. 2000). Plaintiff shall be

afforded thirty days to file an amended complaint properly pleading her negligent

misrepresentation claim as an alternative to the LPLA claim.

Il. CONCLUSION

Considering the foregoing,

IT IS ORDERED that Defendant’s Motion to Dismiss, R. Doc. 13, is GRANTED IN

PART and DENIED IN PART. It is GRANTED to the extent it seeks a more definite statement

regarding Plaintiffs negligent misrepresentation claim. It is DENIED in all other respects.

IT IS FURTHER ORDERED that Plaintiff properly serve a copy of the Complaint and

Amended Complaint upon Defendant within thirty days of this Order’s issuance.

New Orleans, Louisiana this Sth day of August, 2020.

by, Clo

Eldon E. Fallon

United States District Judge