The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LATOSHIA THOMPSON CIVIL ACTION
VERSUS NO: 22-594
TASHION SINGLETON ET AL. SECTION: “H”
ORDER AND REASONS
Before the Court is Defendants Maya Henry, Tully Leffew, and Tashion
Singleton’s Motion to Dismiss for Insufficient Service of Process (Doc. 11). For
the following reasons, this Motion is DENIED.
BACKGROUND
Plaintiff Latoshia Thompson filed this pro se complaint arising out of a
car accident. Plaintiff alleges that she was hit by Defendant Tashion Singleton
while Plaintiff was travelling on I-10 eastbound on March 14, 2021. Defendant
Singleton was allegedly under the influence of alcohol and marijuana at the
time of the accident. Plaintiff also asserts that Defendants Mya Henry and
Tulley Leffew “were responsible for communications in agreement with Mr.
Singleton” and “recklessly failed to follow up with Plaintiff and ceased all
communications with Plaintiff.”1.
Now before the Court is Defendants Maya Henry, Tully Leffew, and
Tashion Singleton’s Motion to Dismiss for Insufficient Service of Process.
Defendants state that there is no proof that any Defendant has been served
1 Doc. 3 at 2–3.
with summons as required by Federal Rule of Civil Procedure 4. Plaintiff
opposes.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of an
action for insufficient service of process. “A Rule 12(b)(5) motion is the proper
vehicle for challenging the mode of delivery or the lack of delivery of the
summons and complaint.”2 When service of process is challenged, the party
responsible for effecting service must bear the burden of establishing its
validity.3 In ruling on a Rule 12(b)(5) motion, district courts enjoy broad
discretion.4
LAW AND ANALYSIS
Defendants allege that no Defendant was served with summons and
complaint as required by Federal Rule of Civil Procedure 4. Plaintiff responds
that Defendants were served. Plaintiff bears the burden of showing that
service was valid as to each Defendant.
On July 14, 2022, the Court issued a Notice to Show Cause ordering
Plaintiff to file proof of service or show good cause in writing why this case
should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m).5
Plaintiff responded and submitted a Certificate of Service showing that all
three Defendants were served at 4520 Westway Park Blvd., #210 in Houston,
2 Matherne v. La. through Dep’t of Child. & Fam. Servs., No. 18-3396, 2020 WL 491225, at
*1 (E.D. La. Jan. 30, 2020) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1353 (3d ed. 1998)).
3 Aetna Bus. Credit., Inc. v. Universal Decor & Interior Design, 635 F.2d 434, 435 (5th Cir.
1981).
4 Henderson v. Republic of Tex., 672 F. App’x 383, 384 (5th Cir. 2016).
5 Doc. 4.
Texas.6 Plaintiff states that she obtained this address from the state of Texas
official website for Insurance Adjusters, where Defendant Mya Henry’s
business address is listed as 4920 Westway Park Blvd., #210 in Houston,
Texas.7
Plaintiff did not attach any documentation with the original Certificate
of Service proving that Defendants received the certified mail. However,
Plaintiff later submitted a United States Postal Service certified mail receipt
which shows that the package was signed for on March 28, 2022.8 This receipt
shows a package addressed to Mya Henry, but the section that provides a space
for a signature on delivery reads “COVID-19,” and the box is checked that an
agent signed for Defendant Henry.9 There were no receipts provided for
packages mailed to either Defendants Tulley Lepue or Tashion Singleton.10
Further, Defendants Henry and Singleton submitted affidavits stating that
neither has been served.11
Based upon these affidavits, the discrepancy between the addresses on
the Certificate of Service and the certified mail receipt, and the fact that an
agent allegedly accepted service by signing “COVID-19,” the Court finds that
Plaintiff has not carried her burden. In short, the documents Plaintiff
presented do not show that Defendants were served. No Defendant signed for
6 Doc. 5. The address on the certificate of service is listed as 4520 Westway Park Blvd., #210
in Houston, Texas. However, the address on the United States Postal Service certified mail
receipt Plaintiff attached to her memorandum in opposition reads 4920 Westway Park Blvd.,
#210 in Houston, Texas.
7 Doc. 19-1 at 1. The Court notes that the agent profile on the website indicates that the most
recent issue date for Ms. Henry’s license was November 13, 2002.
8 Id. at 2.
9 Id.
10 In Plaintiff’s Memorandum in Opposition, she provided a Click-N-Ship Label Record of a
package mailed to Tashion Singleton at 8501 I-10 Service Rd. in New Orleans, Louisiana,
however there was no proof showing this package was ever delivered or that Defendant
Singleton signed for it.
11 Doc 18-1 at 2.
any package or otherwise indicated that they had been served. Ultimately,
Plaintiff has not established that she properly served any Defendant or any
individual with authority to accept service for any Defendant.
Because Plaintiff’s attempts at service are insufficient as to every
Defendant, her claims against Defendants are subject to dismissal. Federal
Rule of Civil Procedure 4 governs service of process generally, and Rule
4(m) permits the Court to dismiss a case without prejudice if the plaintiff fails
to serve the defendants within 90 days of filing the complaint.12
“If, however, the plaintiff can establish good cause for failing to serve the
defendant, the court must extend the time for service.”13 The “good cause”
standard has been described as requiring “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 does not suffice.”14 “In addition,
courts normally require ‘some showing of good faith on the part of the party
seeking an enlargement and some reasonable basis for noncompliance within
the time specified . . . .’”15
“Even if the plaintiff lacks good cause, the court has discretionary power
to extend the time for service.”16 “A discretionary extension may be warranted,
‘for example, if the applicable statute of limitations would bar the refiled
action, or if the defendant is evading service or conceals a defect in attempted
service.’”17
12 See FED. R. CIV. P. 4(m).
13 Millan v. USAA Indem. Co., 546 F.3d 321, 325 (5th Cir. 2008) (citing Thompson v. Brown,
91 F.3d 20, 21 (5th Cir. 1996)).
14 Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985).
15 Gartin v. Par Pharm. Companies, Inc., 289 F. App’x 688, 692 (5th Cir. 2008) (citing Lambert
v. United States, 44 F.3d 296, 299 (5th Cir. 1995)).
16 Millan, 546 F.3d at 325 (citing Thompson, 91 F.3d at 21).
17 Id. (quoting FED. R. CIV. P. 4(m) advisory committee’s note (1993)).
Plaintiff is representing herself and attempted service. The evidence
submitted to the Court was muddled, but it appears that Plaintiff made a
diligent attempt to serve Defendants. Regardless of whether this attempt
constitutes good cause, in an exercise of discretion, the Court elects to give
Plaintiff 45 days from the issuance of this Order to effect service on all
Defendants and file proof of such with the Court.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED.
IT IS ORDERED that Plaintiff has 45 days to effect service on all Defendants
and file proof of such with the Court. Failure to do so will result in dismissal
of the case pursuant to Federal Rule of Civil Procedure 12(b)(5).
New Orleans, Louisiana this 9th day of February, 20238.
Gy JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE