Williamwest v. Richardson

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DODIYI J. WILLIAMWEST CIVIL ACTION

VERSUS NO. 21-800

SHERRY RICHARDSON, ET AL. SECTION “R” (5)

ORDER AND REASONS

Before the Court are plaintiff’s applications for default judgments

against defendants Allstate Insurance Company (“Allstate”),1 James M.

Lawler,2 Mitch Landrieu,3 the City of New Orleans,4 Sarah Deland,5 and

Sargent Blanchard.6 Also before the Court are defendants Sarah Deland,7

Sargent Blanchard, Mitch Landrieu, the City of New Orleans,8 Allstate, and

James M. Lawler’s9 motions to set aside the entry of default entered against

them on September 10, 2021.10 Because defendants were not validly served

1 R. Doc. 68.

2 R. Doc. 69.

3 R. Doc. 71.

4 R. Doc. 72.

5 R. Doc. 74.

6 R. Doc. 75.

7 R. Doc. 62.

8 R. Doc. 61.

9 R. Doc. 79.

10 R. Doc. 59.

with process, the Court grants defendants’ motions to set aside the entry of

default, and denies as moot plaintiff’s motions for default judgments.11

I. BACKGROUND

On April 20, 2021, plaintiff Dodiyi J. Williamwest, proceeding pro se,

filed a complaint listing the following causes of action:

Conspiracy, Fraud, Dereliction of duty, Malicious prosecution,

False imprisonment, loss of properties, Breach of Contract,

Slander, Libel, Denial of Due Process of the Law, bodily injuries,

and the denial of equal protection under the law, clouding of his

title, denial of driving privileges, loss of degree.12

Plaintiff broadly alleges these causes of action against 25 defendants: the City

of New Orleans, Quickies Discount, Martin Wiltz, POI Sean LeBeouf, HANO,

Sgt. Blanchard, Sheriff Marlin Gusman, Jacques Miller, Fredrick Lawler,

Sherry Richardson, Robert Jackson, LSUNO, Stars Oil, C.T. Corp., Sarah

Deland, LA Land Trust, Bobby Jindal, NOLA Green Roots, Road Home,

11 Because the Court has set aside defendants’ entries of default,

plaintiff’s motions for default judgments against those defendants are

moot. See Ex rel. Garibaldi v. Orleans Parish Sch. Bd., No. 96-464,

1997 WL 375666, at *1 (E.D. La. July 2, 1997) (“Entry of default from

the clerk of court under Rule 55(a) is a prerequisite to obtaining an

entry of judgment under Rule 55(b).” (citing 10A C. Wright, A. Miller

& M. Kane, Federal Practice and Procedure § 2682 at 13 (3d ed.

1998))).

12 R. Doc. 1 ¶ 18.a.

Mitch Landrieu, Crescent & Moon, Barack Obama, Bicks & Associates, LA

Department of Motor Vehicle, and Barry Grundman.13

On August 26, 2021, plaintiff moved for an entry of default judgment

against the City of New Orleans,14 Sarah Deland,15 Mitch Landrieu,16 Sgt.

Blanchard,17 Allstate,18 and James M. Lawler.19 Plaintiff alleged that the

defendants had failed to file responsive pleadings. On September 13, 2021,

the Clerk of Court granted plaintiff’s motions.20 Later that day, defendants

Blanchard, Landrieu, and the City of New Orleans moved to set aside the

default. 21 Deland moved to set aside the default four days later, on

September 17, 2021.22 Allstate and Lawler moved to set aside the default on

October 14, 2021.23 Defendants each argue that plaintiff cannot meet his

burden of showing that he validly served them in accordance with Federal

Rule of Civil Procedure 4.

13 Id. ¶ 1.

14 R. Doc. 58.

15 R. Doc. 51.

16 R. Doc. 49.

17 R. Doc. 52.

18 R. Doc. 43.

19 R. Doc. 46.

20 R. Doc. 59.

21 R. Doc. 61.

22 R. Doc. 62.

23 R. Doc. 79.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 55, “[t]he court may set aside an

entry for default for good cause, and it may set aside a final default judgment

under Rule 60(b).” Fed. R. Civ. P. 55. “[C]ourts apply essentially the same

standard to motions to set aside a default and a judgment by default, [but]

the former is more readily granted than a motion to set aside a default

judgment.” Matter of Dierschke, 975 F.2d 181, 184 (5th Cir. 1992). In

determining whether there is “good cause” to set aside an entry of default,

the Court considers (1) whether default was willful, (2) whether setting it

aside would prejudice the adversary, and (3) whether a meritorious defense

is presented. United States v. One Parcel of Real Prop., 763 F.2d 181, 183

(5th Cir. 1985). However, consideration and disposition of all three factors

is not required, and “Courts have been careful to avoid treating them as

though they were exclusive.” Dierschke, 975 F.2d at 184; see also id.

(“Whatever factors are employed, the imperative is that they be regarded

simply as a means of identifying circumstances which warrant the finding of

‘good cause’ to set aside the default.”).

However, “[a]bsent proper service of process,” the Court “lacks

jurisdiction over a defendant[,] and an entry of default granted under such

conditions is void.” Conwill v. Greenberg Traurig, L.L.P., No. 09-4365,

2010 WL 2773239, at *3 (E.D. La. July 13, 2010) (quoting Rogers v. Hartford

Life & Accident Ins. Co., 167 F.3d 933, 940 (5th Cir. 1999)); see also

Maryland State Firemen’s Ass’n v. Chaves, 166 F.R.D. 353, 354 (D. Md.

1996) (“It is axiomatic that service of process must be effective under the

Federal Rules of Civil Procedure before a default or a default judgment may

be entered against a defendant.”). Under Rule 4, a plaintiff is responsible for

timely serving the defendant with a complaint and summons. Fed. R. Civ. P.

4(c)(1). When service of process is challenged, the party on whose behalf

service was made bears the burden of establishing its validity. Sys. Signs

Supplies v. U.S. Dep’t of Just., 903 F.2d 1011, 1013 (5th Cir. 1990).

III. DISCUSSION

A. Allstate Insurance Company

Allstate moves to set aside the entry of default on the grounds that

Williamwest has not served it with process in accordance with Rule 4(h).24

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 competent

person may 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

24 R. Doc. 79-1 at 1.

corporation ordinarily must be served by personal process on its registered

agent. La. Code Civ. Proc. Ann. art. 1261. In limited circumstances,25

Louisiana law permits personal service on a corporate officer, director, or

employee of suitable age and discretion at “a place where the business of the

corporation is regularly conducted.” Id. Here, plaintiff sent the complaint

and summons via certified mail, addressed to “Allstate Insurance Company,

P.O. Box 600642 Dallas, TX 75266.”26 Because Louisiana law requires

personal service on a corporation’s agent, service by mail is insufficient.

Therefore, the Court finds that plaintiff has not met Rule 4(h)(1)(A)’s

requirements for service on Allstate.

Alternatively, under Rule 4(h)(1)(B), Allstate may be served by

delivering a copy of the summons and complaint to an officer, a managing or

general agent, or any other agent authorized by appointment or by law to

receive service of process. As an initial matter, Allstate represents that this

address is not associated with “an officer, a managing or general agent, or

any other agent authorized by appointment or by law to receive service of

25 Service is available under these methods “[i]f the corporation has failed

to designate an agent for service of process, if there is no registered

agent by reason of death, resignation, or removal, or if the person

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

diligence, to served the designated agent.” La. Code Civ. Proc. Ann. art.

1261(B).

26 R. Doc. 28 (Allstate’s return of service).

process.” 27 Moreover, even if plaintiff had mailed the summons and

complaint to an authorized agent, service by mail does not meet the delivery

requirement of Rule 4(h)(1)(B). See, e.g., Larsen v. Mayo Med. Ctr., 218

F.3d 863, 868 (8th Cir. 2000) (holding that service was ineffective because

“the summons and complaint were mailed and not personally served,” and

because “they were not even mailed to an officer, manager, or authorized

agent . . . but addressed to ‘Medical/Legal Department, Mayo Clinic’”);

Technologists, Inc. v. MIR’S Ltd., 725 F. Supp. 2d 120, 127 (D.D.C. 2010)

(holding that service by mail was insufficient under Rule 4(h)(1)(B)); Factor

King, LLC v. Block Builders, LLC, 2016 WL 723016, at *2 (M.D. La. Feb. 22,

2016) (“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.”).

The Court thus concludes that plaintiff has not complied with Rule

4(h)(1)(B)’s requirements for effective service. Accordingly, because Allstate

has not been properly served in accordance with Rule 4(h), the Court finds

that the entry of default against Allstate must be set aside. See Smith v.

Womans Hospital, 671 F. App’x 884, 887 (5th Cir. 2016) (per curiam)

(affirming the district court’s order setting aside the default because “service

27 R. Doc. 79-1 at 2.

did not comply with the service requirements of Fed. R. Civ. P. 4(h) or any

other proper method of service”).

B. The City of New Orleans

Plaintiff mailed his complaint and summons to the City of New Orleans

at 1340 Poydras St., Suite 1100 New Orleans, LA 70112. 28 The City

represents that this address is “not the proper address to accept service on

behalf of the City,” because under the Home Rule Charter for the City of New

Orleans, service must be made on the Mayor, the acting Mayor, or the City

Attorney.29 The City contends that plaintiff should have served the City at

City Hall, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112.30

Moreover, plaintiff not only used the incorrect address, but he also

used an ineffective method of service. Rule 4(j)(2) requires service upon a

local government to be effectuated by “delivering a copy of the summons and

of the complaint to its chief executive officer,” or “serving a copy of each in

the manner prescribed by that state’s law.” Fed. R. Civ. P. 4(j)(2). Under

Louisiana law, a public entity may be served “at its office by personal service

28 R. Doc. 29 (City of New Orleans’s return of service).

29 R. Doc. 61-1 at 2-3 (citing Home Rule Charter of the City of New

Orleans § 4-405).

30 Id.

upon the chief executive officer, thereof, or in his absence, upon any

employee thereof of suitable age and discretion.” La. Code Civ. Proc. Ann.

art. 1265.

Here, plaintiff served the City of New Orleans by certified mail, which

is ineffective under both methods authorized by Rule 4. See Seal v. State of

La., No. 05-629, 2005 WL 3543836, at *2 (E.D. La. Oct. 18, 2005) (noting

that service by certified mail against the state of Louisiana and several state

departments “is generally not a proper method of service under Rule 4 or

Louisiana law”). Plaintiff’s service of process did not comply with the

provisions of Rule 4(j)(2), and therefore service on the City of New Orleans

was insufficient. Accordingly, the Court sets aside the default entry against

the City of New Orleans.

C. The Individual Defendants

Defendants Blanchard, Landrieu, Deland, and Lawler (the “individual

defendants”) argue that plaintiff’s service via certified mail was improper,

and thus the Court lacks personal jurisdiction over them in this matter.31

Federal Rule of Civil Procedure 4(e) provides the procedural requirements

to effectuate service of individual defendants. Rule 4(e) provides that a

31 R. Doc. 61-1 at 2-3; R. Doc. 62-1 at 2-3; R. Doc. 79-1 at 3.

federal litigant may serve an individual defendant by following the

procedural methods of service provided by the state in which the district

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

any of the following: (1) “delivering a copy of the summons and of the

complaint to the individual personally,” (2) “leaving a copy of each at the

individual’s dwelling or usual place of abode with someone of suitable age

and discretion who resides there,” or (3) “delivering a copy of each to an

agent authorized by appointment or by law to receive service of process,”

Fed. R. Civ. P. 4(e)(2).

Louisiana law32 requires domiciliary or personal service, except in

certain circumstances when delivery or mail is appropriate because the

document being served does not require an appearance or an answer. La.

Code Civ. Proc. Ann. arts. 1231, 1232, 1234, 1313. Louisiana law does not

authorize service by mail of a complaint because the defendant is required to

file an answer. La. Code Civ. Proc. Ann. art. 1313. Additionally, Louisiana

law does not authorize service of an individual at the individual’s place of

work. See Doe v. St. James Parish Sch. Board, No. 15-5370, 2016 WL

1558794, at *4 (E.D. La. Apr. 18, 2016). Notably, “[n]either the Federal Rules

32 Plaintiff attempted to serve all the individual defendants in Louisiana.

See R. Docs. 28, 29, 34, 36, 38, 39.

of Civil Procedure, nor Louisiana law, provide for service of process on

individuals within the State of Louisiana by certified mail.” Jones v. Becnel,

No. 15-713, 2015 WL 4677543, at *4 (E.D. La. Aug. 6, 2015).

Plaintiff attempted to effectuate service on Blanchard by sending the

complaint and summons via certified mail to “NOPD 5th District, 3900 N.

Claiborne NOLA 70117.”33 Plaintiff’s attempted service was ineffective under

Rule 4(e)(1) because Louisiana law not does authorize service of an

individual through the mail when an answer is required, La. Code Civ. Proc.

Ann. arts. 1231, 1232, 1234, 1313, nor at an individual’s workplace, see Jason

v. Nugent, No. 4-1722, 2005 WL 53301, at *2 (E.D. La. Jan. 7, 2005).

Similarly, service was also insufficient under Rule 4(e)(2) because plaintiff

did not serve Blanchard by personal or domiciliary service.

Plaintiff similarly attempted service on Deland via certified mail

addressed to “2601 Tulane Ave. 9th floor NOLA 70119.”34 Plaintiff did not

properly serve Deland because neither the Federal Rules nor Louisiana law

recognize service on an individual by certified mail. See Jones, 2015 WL

4677543, at *4.

33 R. Doc. 39 at 2 (Blanchard’s return of service).

34 R. Doc. 38 at 2 (Deland’s return of service).

Defendant Allstate provides multiple reasons why plaintiff failed to

effectuate service of Lawler, whom plaintiff alleges was Allstate’s counsel in

a previous matter.35 Plaintiff attempted to serve a James M. Lawler by mail,

but his complaint names a “Mr. Frederick Lawler.”36 Allstate represents that

James M. Lawler is a fictitious person.37 Allstate also argues that plaintiff’s

attempt to serve Lawler by mail addressed to “4640 Rye St., Ste. 100

Metairie, LA 70006”38 was both ineffective under Rule 4, and was further

improper because that address “has no relationship to James M. Lawler,”39

the person addressed on the summons. The Court finds that neither

Frederick Lawler nor James M. Lawler—if he exists—has been properly

served with process because neither received personal or domiciliary service,

as required by Rule 4(e)(1)-(e)(2).

As to Landrieu, plaintiff has not stated whether he is sued in his

individual capacity or his official capacity as former mayor of New Orleans.40

To the extent that plaintiff is asserting claims against Landrieu in his

35 R. Doc. 1 ¶ 7 (stating that plaintiff “prevailed in 1986 . . . in this court .

. . to which Mr. Frederick Lawler was made suttee [sic] for Allstate

Insurance Company).

36 Id. (emphasis added).

37 R. Doc. 79-1 at 2-3.

38 R. Doc. 34 (Lawler’s return of service).

39 R. Doc. 79-1 at 3.

40 R. Doc. 61-1 at 2.

individual capacity, “[t]he fact that [Landrieu] may be sued in his . . . official

capacity does not obviate the necessity for appropriate service of process for

suit in a [his] individual capacity.” See Doe, 2016 WL 1558794 at *3 (quoting

Judeh v. Louisiana State Univ. Sys., No. 12-1758, 2013 WL 654921, at *3

(E.D. La. Feb. 20, 2013)). The return of service states that plaintiff addressed

the summons and complaint to “Mayor Mitch Landrieu 1340 Poydras St. Ste.

1100 New Orleans, LA 70112.”41 As with the other individual defendants,

plaintiff has not properly served Landrieu in his personal capacity under the

Federal Rules of Civil Procedure. See supra at 11-12.

To the extent that plaintiff is asserting claims against Landrieu in his

official capacity, the Court similarly finds that plaintiff has not properly

effectuated service of process pursuant to Rule 4(j)(2). See Fed. R. Civ. P.

4(j)(2) (requiring service upon a local government to be effectuated by

delivering a copy of the summons to the chief executive officer or serving

process in accordance with state law). Under Article 1265 of the Louisiana

Code of Civil Procedure, “[a] public officer, sued as such, may be served at

his office either personally, or in his absence, by serve upon any of his

employees of suitable age and discretion.” La. Code Civ. Proc. Ann. art. 1265;

see also Gilmore v. Wolfe, No. 15-280, 2016 WL 438978, at *2 (M.D. La. Feb.

41 R. Doc. 36 (Landrieu’s return of service).

3, 2016) (stating that Article 1265 governs service on individuals sued in their

official capacities). Here, plaintiff failed to comply with the requirements of

either method of service under Rule 4(j)(2) because he did not personally

serve the defendant, or the City’s “chief executive officer.” Thus, plaintiff has

failed to demonstrate that his service of Landrieu was proper, whether he is

sued in his official or personal capacity.

In sum, plaintiff, has failed to demonstrate effective service on any of

the individual defendants.

IV. CONCLUSION

For the foregoing reasons, defendants’ motions □□ to set aside the

entries of default are GRANTED. Because defendants are no longer in

default, the Court DENIES plaintiffs motions43 for default judgments.

New Orleans, Louisiana, this _19th _ day of October, 2021.

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

42 R. Docs. 61, 62, 79.

43 R. Docs. 68, 69, 71, 72, 74, 75.

14