The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
DRUCIETA G CARMOUCHE CASE NO. 6:19-CV-00023
VERSUS JUDGE SUMMERHAYS
MARK GARBER ET AL MAGISTRATE JUDGE HANNA
MEMORANDUM RULING
Presently before the Court is the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(5)
and 12(b)(2) on Behalf of Sheriff Mark Garber, Deputy Robert Shontz, Deputy Charmickia
Levine, Deputy Austin Millette, and Deputy Trung Tran [doc. 11]. An objection to the Motion has
been filed and the matter is now ripe for decision.
1.
BACKGROUND
Plaintiff alleges that on or about January 8, 2018, deputies with the Lafayette Parish
Sheriff's Office were called to her place of residence regarding a domestic disturbance. Plaintiff
claims that she was improperly arrested by the deputies and was assaulted during the arrest. On
January 8, 2019, the plaintiff filed a Complaint alleging civil rights violations under 42 U.S.C. §
1983 and causes of action arising under Louisiana law.! The plaintiff filed suit against Sheriff
Mark Garber in his official and individual capacities; Deputy Robert Shontz in his individual
capacity; Deputy Charmickia Levine in her individual capacity; Deputy Austin Millette in his
individual capacity; and Deputy Trung Tran in his individual capacity.” According to Defendants,
on April 12, 2019, Sergeant Shelley Landry was temporarily working at the front desk of the main
1 Doc. 1, J Introduction.
2 Doc. 1, 94.
lobby of the Lafayette Parish Sheriff's Office.? An unknown male approached and handed Sgt.
Landry a stack of papers that was later was determined to contain several summons and
complaints.* Specifically, the stack of papers included a complaint and summons addressed to
Sheriff Garber and the other Defendants.* The unknown male (1) did not identify himself as a
process server; (2) he did not affirmatively inquire if Sheriff Garber was present at the office; and
(3) the unknown male asked only for Sgt. Landry’s name before departing the premises.°
According to Scott Frank, the private process server employed by Plaintiff serve the Defendants,
he served the summons and complaint upon Sergeant Landry, as it “appeared to him that the Sheriff
was not present at the time of service.”
Defendants have filed the current motion asserting that Plaintiff did not properly or timely
serve any of the Defendants.
Il.
LAW AND ANALYSIS
A plaintiff is required to serve the summons and a copy of the complaint upon each
defendant in a timely and proper manner.® Under Rule 12(b)(5) of the Federal Rules of Civil
Procedure, a defendant may challenge the plaintiff's failure to serve the defendant or challenge the
means by which the plaintiff delivered the summons and complaint to the defendant. A Rule
12(b)(5) motion turns on the legal sufficiency of the service of process.” Once the defendant
contests the validity of service of process, the burden shifts to the plaintiff to establish its validity.!°
Affidavit of Sergeant Shelley Landry, Exhibit 1 to Doc. 11.
si
8 Id.
7 Affidavit of Scott Frank, Exhibit D to Doc. 15.
8 See Fed. R. Civ. P. 4
° Quinn v. Miller, 470 Fed. App’x 321, 323 (Sth Cir. 2012).
10 Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (Sth Cir. 1992).
If there is no valid service of process, proceedings against a party are void'! because a court cannot
exercise personal jurisdiction over a defendant unless he or she was properly served.'* For that
reason, a district court has broad discretion to dismiss an action pursuant to Rule 12(b)(5) for
insufficient service of process.”
A. Service upon the Individual Deputies.
Under Rule 4(e) of the Federal Rules of Civil Procedure, service on an individual may be
accomplished either in accordance with the rules of the state where the court is located or by
delivering the summons and complaint to the individual personally, leaving the papers at the
individual’s home with an appropriate person who also lives there, or by delivering the papers to
the individual’s agent for service of process. Under Louisiana law, an individual may similarly be
served personally, by delivery to an appropriate person residing at his home, or by delivery to a
duly appointed agent for service of process.'* Neither federal law nor state law permits service on
an individual by delivering the papers to the person’s workplace. Plaintiff has submitted no
evidence indicating that Sergeant Landry was designated as the agent for service of process for
any of the individual deputies. Accordingly, service was not properly made upon the individual
deputies and the claims against them must be dismissed for insufficient service of process.
B. Service upon Sheriff Garber.
Under Rule 4(j)(2) of the Federal Rules of Civil Procedure, a state or a state-created
governmental organization that is subject to suit “must be served by: (A) delivering a copy of the
summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the
'l See Aetna Business Credit, Inc. v. Universal Décor & Interior Design, Inc., 635 F.2d 434, 435 (Sth Cir. 1981);
Mooney Aircraft, Inc. v. Donnelly, 402 F.2d 400, 406 (Sth Cir. 1968).
2 See Naranjo v. Universal Sur. of Am., 679 F. Supp. 2d 787, 795 (S.D. Tex. 2010) (citing Omni Capital Int'l, Ltd. v.
Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)).
3 Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir. 1994).
4 Articles 1231-1235 of the Louisiana Code of Civil Procedure.
manner prescribed by that state’s law for serving a summons or like process on such a defendant.”
While Sheriff Garber is the chief executive officer of the Lafayette Parish Sheriffs Office, it is
undisputed that he was not served personally. Therefore, to be effective, the delivery of the service
documents to his employee would have to comply with Louisiana law.
A Louisiana sheriff is a political subdivision of the state, and Article 1265 of the
Louisiana Code of Civil Procedure specifies the method for effecting service on political
subdivisions, reading as follows:
Service of citation or other process on any political subdivision ... is made at its
office by personal service upon the chief executive officer thereof, or in his absence
upon any employee thereof of suitable age and discretion. A public officer, sued as
such, may be served at his office either personally, or in his absence, by service
upon any of his employees of suitable age and discretion.
Thus, effective service would require delivery of the papers to Sheriff Garber himself or, in the
event that Sheriff Garber was not present when delivery of the papers was attempted, delivery of
the papers to a suitable person at the sheriff's office.
The issue at dispute is whether Sheriff Garber was present when the process server
attempted to make service on him. The only evidence submitted by the Plaintiff is the affidavit of
the process server which includes the conclusory statement that it “appeared to him that the Sheriff
was not present at the time of service.”!® There is no indication as to what lead him to reach that
conclusion or what actions he took to verify Sheriff Garber’s presence. On the contrary, the
affidavit of Sergeant Landry specifies exactly what transpired when the process server arrived; the
process server never identified himself or his purpose and did not affirmatively attempt to ascertain
whether Sheriff Garber was present. Numerous courts have held that the person making service
pursuant to Article 1265 must affirmatively establish the absence of a public officer before serving
5 La. R.S. 13:5102(B)(1).
16 Affidavit of Scott Frank, Exhibit D to Doc. 15.
another employee of that office in the alternative.’ As one Court reasoned, to not require an
affirmative duty to establish the absence of a public officer would render the words “in his
absence” contained in Article 1265 “entirely superfluous.”!® The Court finds that service was not
properly made upon Sheriff Garber and the claims against him should be dismissed.
As the Court has found that Plaintiff failed to properly serve each of the Defendants’, the
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(5) and 12(b)(2) on Behalf of Sheriff Mark
Garber, Deputy Robert Shontz, Deputy Charmickia Levine, Deputy Austin Millette, and Deputy
Trung Tran [doc. 11] is GRANTED, and Plaintiff's claims are DISMISSED WITHOUT
PREJUDICE.
ah
THUS DONE in Chambers on this _\ day of February, 2020.
Robert R. Cy
United States District Judge
7 See People's Workshop, Inc. v. Fed. Emergency Mgmt. Agency, 17-107, 2018 WL 1528191, at *7 (M.D. La.
3/28/18); Doe v. St. James Parish School Board, 15-5370, 2016 WL 1558794 (E.D. La. 4/18/16); Gilmore v. Wolfe,
15-00280, 2016 WL 438978 (M.D. La. 2/3/16)
'8 People's Workshop, Inc, 2018 WL 1528191, at *7.
The Defendants also argued that service was untimely as it occurred 4 days later than required. As the Court has
found that service was improper, it is unnecessary to address the fact that it was also untimely.