The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
SEDRICK FORD CIVIL ACTION NO. 2:19-cv-0748
VERSUS JUDGE DOUGHTY
NATIONAL FIRE & MARINE INSURANCE MAG. JUDGE KATHLEEN KAY
COMPANY, DENNIS GARDNER, D&B
GARDNER TRUCKING
MEMORANDUM RULING
The Defendant, Dennis Gardner, dba D&B Gardner Trucking (“Gardner”) has filed a
Motion to Dismiss [Doc. No. 14], pursuant to Federal Rule of Civil Procedure 12(b)(5) alleging
insufficient service of process. The issue in this proceeding is whether Gardner was properly
served through the Louisiana Long Arm Statute, LA. R.S. 13:3201], et seq.
The Plaintiff, Sedrick Ford (“Ford”), filed a Petition for Damages on December 17, 2018,
in the 14th Judicial District Court in the Parish of Calcasieu, Lake Charles, Louisiana. The matter
was removed to this Court on the basis of diversity jurisdiction on June 12, 2019. Under Federal
Rule of Civil Procedure 12(b)(5), when service of process is challenged, the serving party bears
the burden of proving its validity or good cause for failure to effect timely service. SYS. Signs
Supplies v. U.S. Department of Justice, Washington, DC 903 F.2d 1011 (5th Cir. 1990).
At issue in this case is whether service was proper upon Gardner under the Louisiana Long
Arm Statute. Ford maintains that he sent a letter by certified mail to Gardner at 1315 Ben Brown
Road, Valley, Alabama, 36854 on March 6, 2019. The U.S. Postal Service marked the package
“addressee unknown” on March 12, 2019. Thereafter the package was available for pick up until
March 27, 2019, when it was marked “unclaimed/being returned to sender”. Ford filed affidavits
of service of process on both Gardner and D&B Gardner Trucking on January 7, 2020. [Doc. No.
11 and 12].
Gardner maintains that at the time the certified letter was mailed, Gardner no longer lived
at 1315 Ben Brown Road, Valley, Alabama, and, therefore, service is invalid.
The accident at issue in this proceeding took place on December 6, 2017. The original
Petition was filed in the 14th Judicial District Court, Calcasieu Parish, Lake Charles, Louisiana, on
December 17, 2018. The certified letter sent by Ford pursuant to the Louisiana Long Arm Statute
was mailed on March 6, 2019, which would have been approximately fifteen (15) months after
the accident took place.
Gardner provides an affidavit from Kyle Quinney [Doc. No. 14-2 (Exhibit A)], a licensed
private investigator. Quinney determined that on the date the certified letter was sent (March 6,
2019), Gardner did not live at the address the letter was mailed to, according to Brenda Gardner,
Gardner’s ex-wife. Although a service receipt is not required, service through the Louisiana Long
Arm Statute requires that the letter must be mailed to the actual, correct address of the defendant.
Wood v. Hackler, 276 So. 3d 1136 (La. App. 2d Cir. 2019).
The evidence shows that the address on the March 6, 2019 certified letter was not the
address where Gardner was living at the time the letter was mailed. Therefore, the Court
determines that service of process upon Gardner was improper, and he has shown that dismissal
pursuant to Rule 12(b)(5) is appropriate.
However, courts are allowed authority to grant additional time for service when a resulting
dismissal without prejudice would result in the bar of a suit due to prescription. Hale v. United
States, 216 WL 10707021 (S.D. Texas 2016). Therefore, the Court grants Ford an extension of
ninety (90) days from the date of this Order to make proper service on Gardner. If he fails to do
so within that time period, the Court will enter judgment on Gardner’s motion for the reasons set
forth in this Ruling and dismiss Ford’s claims against him without prejudice.
Ford shall have ninety (90) days from date of this Order to make proper service on the
Gardner, dba D&B Gardner Trucking.
Monroe, Louisiana, this 5" day of May, 2020. . \
port AN ASIN
TERRY Ac-DOUGHTY [\)
UNITED STATES DISTRICFJUDGE