The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
ISATAH COLLINS CASE NO. 2:19-CV-00157
VERSUS JUDGE JAMES D., CAIN, JR.
CB&I, LLC MAGISTRATE JUDGE KAY
MEMORANDUM RULING
Before the court is a Motion to Dismiss [doc. 12] filed by defendant CB&I, LLC
(“CB&I”) under Rules 12(b)(5), 12(b)(1), and 12(b)(6) of the Federal Rules of Civil
Procedure, in response to the employment discrimination complaint filed here by Isaiah
Collins. Collins opposes the motion and CB&I has submitted a reply. Docs, 16, 17,
Accordingly, the matter is now ripe for review.
1.
BACKGROUND
Collins alleges that he was employed by CB&I as a pipefitter, in the company’s
operations near Sulphur, Louisiana. Doc. 1, p. 3, 4 15. He further asserts that he was fired
by that company in June 2017, due to his race (African-American). /d. at {/§ 16-17,
Accordingly, he filed a charge of discrimination with the United States Equal Employment
Opportunity Commission (“EEOC”). See doc. 12, att. 3. The EEOC closed the
investigation and issued a notice of right to sue on November 5, 2018, informing Collins
that he had 90 days to pursue his claim through an action in state or federal court. /e.
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Collins then filed a pro se complaint against CB&I on February 5, 2019, alleging
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 ef seg. Doc, 1, His
application to proceed in forma pauperis was rejected by the court on February 12, 2019,
Doc. 4. The court sent notice of Collins’s obligation to pay the filing fee on February 20,
2019. Doc. 5. That mailing was returned as undeliverable, apparently due to Collins’s
failure to include his ZIP code with his address. Doc. 6. The clerk’s office made a second
_ attempt on March 4, and Collins paid the filing fee on March 11, 2019. /@ Counsel enrolled
on Coilins’s behalf on April 15, 2019, Doc. 10. Counsel then filed an affidavit of service,
showing that CB&I had been served through human resources manager Kelvin Burns on
April 22, 2019. Doc. 11.
CB&I asserts that service upon Burns was improper because he was not the
company’s registered agent and because a copy of the complaint was not attached to the
summons. Accordingly, it filed the instant motion on May 13, 2019, Doc. 12. Here it moves
for dismissal of the complaint (1) under Rule 12(b)(5), on the grounds that service was
defective and the 90-day time period for effecting service under Federal Rule of Civil
Procedure 4(m) has expired; and (2) under Rules 12(b)(1) and 12(b)(6), on the grounds that
dismissal of the complaint under Rule 12(b}(5) means that Collins failed to file suit within
90 days of the EEOC’s notice of suit rights. Doc. 12, att. 1. Collins opposes all grounds for
dismissal. Doc. 16; doc. 16, att. 2. It also provides proof of service on CB&I on May 30,
2019, through agent Ashley Minvielle. Doc. 16, att. 1,
2.
LAW & APPLICATION
Federal Rule of Civil Procedure 4 provides the proper means of service for actions
filed in federal court, and Rule 4(m) specifies that a complaint must be served on the
opposing party within 90 days of its filing. Absent valid service of process, “proceedings
against a party are void.” Aetna Bus. Credit, Inc. v. Universal Décor & Interior Design,
635 F.2d 434, 435 (Sth Cir. 1981). Accordingly, Rule 12(b)(5) allows for dismissal of an
action based on insufficient service of process. Luv N’ Care, Ltd. v. Groupo Rimar, 2014
WL 6982499, at *3 (W.D. La. Dec. 9, 2014) (citing 5B CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1353 (3d ed.
2013)). On such a motion, the serving party bears the burden of proof. Aetna Bus, Credit.
635 F.3d at 435.
The district court has broad discretion in determining whether to dismiss an action
for insufficient service under Rule 12(b)(5). George v. U.S. Dept of Labor, 788 F.2d [115,
1116 (Sth Cir. 1986). If the motion relates to plaintiff's failure to effect service within Rule
4(m)’s time limit, the court must extend the time to effect service for good cause shown.
Pugh v. Bank of America, 2017 WL 1427015, at *1 CE.D. La. Apr. 21, 2017) (citing Fed.
R. Civ. P. 4(m)). If there is no good cause shown, the court may at its discretion either
dismiss the action without prejudice or grant an extension. /d. (citing Thompson vy, Brown,
91 F.3d 20, 21 (Sth Cir. 1996)),
CB&I alleges that the first attempt at service was deficient as described above and
that the case must be dismissed because Collins failed to properly effect service within the
3.
90 days required under Federal Rule of Civil Procedure 4(m), Collins admits that service
upon Burns was improper under Rule 4(e) and 4(h)’s requirements for service on an
unincorporated association, and does not contest the allegation that he failed to attach a
copy of the complaint to the summons as required by Rule 4(c). See doc. 16, att. 2, p. 2.
Instead, he asks that the court exercise its discretion and excuse the failure to timely serve
CB&I. Collins does not specify any grounds for finding good cause in this matter.
Nevertheless, the court explores the record for same as well as any factors guiding its
discretion.
Numerous courts have held that filing a complaint with an application to proceed jn
forma pauperis (“IFP”) should toll Rule 4(m)’s time for effecting service until the IFP
application is resolved and that, where the IFP application is denied, the limitations period
should remain tolled at least until the court issues its decision. See Ellis v. Principi, 223
E.R.D. 446, 446-48 (S.D. Miss. 2004) (collecting cases). In this matter. Collins filed his
complaint on February 5, 2019, and his application to proceed IFP was denied one week
later. Notice of that decision did not reach him, however, until after March 4. Collins in
turn paid the full filing fee on March 11, 2019. Counsel enrolled on his behalf on April 15
and made the deficient first attempt at service a week later. Counsel received notice of
these deficiencies by May 13, 2019, with the filing of the instant motion, but did not
complete his second attempt at service until May 30.
With the limitations period tolled through the denial of Collins’s IFP application on
February 12, service on May 30 occurred just 17 days after Rule 4(m)’s time limit.!
Counsel attempted service promptly after enrolling, though he provides no excuse for his
subsequent 17-day delay afler receiving notice of the first atlempt’s insufficiency. ‘These
facts do not provide sufficient basis for compelling extension of the service deadline under
a finding of good cause, given counsel’s unexplained delays and inability to correctly
accomplish service on the first attempt, They do, however, guide the court’s discretion
toward denial of the motion, The plaintiff himself appears to have acted diligently while
proceeding pro se through the EEOC review and the early stages of this suit, aside from
the excusable omission of his ZIP code.’ Dismissal of the action is too harsh a remedy to
impose against plaintiff for what is ultimately counsel’s error, especially where CB&I
obtained formal notice of the suit only shortly after Rule 4(m)’s limitation period expired.
Accordingly, the Motion to Dismiss will be denied as to the Rule 12(b)(5) grounds.
' The matter would be timely under Rule 4(m) if the court extended tolling until the decision on Collins’s IFP
application was received by him. However, equitable tolling “is a narrow exception that should be applied sparingly”
and only in cases involving “an extraordinary circumstance that derives from some external obstacle to timely filing
beyond the plaintiff's control.” Sandoz vy. Cingular Wireless, LLC, 700 F. App’x 317, 320 (Sth Cir. 2017) (cleaned up;
emphasis added), Here the first notice’s failure to reach Collins apparently arose from his own failure to supply his
ZIP code with his address, The court considers this neither extraordinary nor beyond Collins’s contrel. Accordingly,
tolling the limitations period past the date of the court’s decision on the IFP application would be an inappropriate
extension of the doctrine.
‘The Fifth Circuit has found that extension of Rule 4(m)’s limitations period may be particularly inappropriate when
ihe filing of the suit runs just shy of the statute of limitations for plaintiffs cause of action, rather than alfowing him
to evade any potential prescription caused by his delay in service and a resulting dismissal. See Gartin v. Par Pharm.
Companies, ine, 289 F. App’x 688 (Sth Cir. 2008): Feazy v. Young's Yacht Sale and Service, Inc., 644 F.2d 475 (Sth
Cir, 1981)). Those cases, however, dealt with considerably longer limitations periods than the 90 days provided for
Collins to file this suit after closure of the EEOC investigation. In light of the brevity of that period, as well as his pra
se status, the court finds no lack of diligence in the fact that he filed this suit at the very end of the allotted 90 days.
Cf Bounds v. Textron, fne., 2018 WL 6831105 (E.D. La. Dec. 28, 2018) (dismissing Title VII suit for failure to timely
effect service despite the fact that plaintiff would be barred from refiling by the 90-day limitations period, bul noting
considerably longer delays by plaintiff and her counsel and their failure to act after two prior warnings by the court).
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Because the court will not dismiss the suit for failure to timely effect service, the Rule
12(b)(1) and 12(b)(6} grounds for dismissal are moot.
ITI.
CONCLUSION
For the reasons stated above, the Motion to Dismiss [doc. 12] will be DENIED,
/ ee
THUS DONE in Chambers on this / 6 dayof (Sa ly __, 2019,
f--TAMES D. CAIN.
UNITED STATES DISTRICT JUDGE
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