Flores, Jr v. Southern Response Services Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

DAVID FLORES JR ET AL CASE NO. 2:21-CV-04021

VERSUS JUDGE JAMES D. CAIN, JR.

SOUTHERN RESPONSE SERVICES INC MAGISTRATE JUDGE KAY

ET AL

MEMORANDUM RULING

Before the court is a Motion to Dismiss [doc. 31] filed by Southern Response

Services, Inc. (“SRS”) and seeking dismissal of the claims against it pursuant to Federal

Rule of Civil Procedure 4(m) for failure to effect service. Plaintiffs oppose the motion.

Doc. 35.

I.

BACKGROUND

This suit arises from work done by plaintiffs David Flores, Jr. and Matthew Sirmon

for SRS, a subcontractor of Belfor USA Group, Inc. (“Belfor”). Plaintiffs allege that they

were hourly, non-exempt employees of defendants who were hired as general laborers

following Hurricane Laura in 2020. They further allege, inter alia, that defendants failed

to pay them the rates for which they contracted and to honor agreements relating to their

expenses and compensation for commute times. Doc. 1, att. 1.

Plaintiffs filed suit in the Fourteenth Judicial District Court, Calcasieu Parish,

Louisiana, against Belfor and SRS on September 23, 2021, raising several claims against

both defendants including violations of the Fair Labor Standards Act (“FLSA”) and

Louisiana Wage Payment Act (“LWPA”). Id. They also raise claims of breach of

employment contract and detrimental reliance against SRS alone.1 Id. at ¶¶ 123–39.

Finally, they seek to represent a class consisting of a following on their claims:

All former employees of the Defendants between August 2020 and

December 2020, who came to Lake Charles to provide labor arising from

Hurricane Laura, who suffered economic damages as a result of the acts

and/or omissions of the named Defendants’ mismanagement and for failure

to pay wages, seeking recovery of unpaid overtime wages, engaged in

unlawful business practices from David Flores, Jr., Matthew Sirmon and its

members.

Id. at ¶ 18 (sic).

Belfor was served through its registered agent on October 25, 2021, and removed

the matter to this court on the basis of federal question jurisdiction on November 19, 2021.

Doc. 1. Plaintiffs also attempted service on SRS through Louisiana’s long-arm statute by

mailing a certified copy of the petition and citation on October 21, 2021, to the registered

office address on file with the Alabama Secretary of State, at 10336 Old Highway 43,

Creola, AL 36525. Doc. 8, att. 6. However, this mail was returned marked as vacant on

November 3, 2021. Id. On that date plaintiffs attempted service by mailing the same forms

the office address listed on SRS’s company website, at 5809 U.S. Highway 43, Satsuma,

AL 36572. Id. This mailing was returned marked “Return to Sender” on November 13,

2021. Id.

1 In an amended complaint they added a claim under Louisiana worker’s compensation law based on defendants’

alleged retaliatory discharge of Flores after he was injured on the job. Id. at pp. 86–87.

Meanwhile, plaintiffs moved to remand the case to state court based on Belfor’s

failure to obtain consent to removal from SRS. Doc. 8. The magistrate judge recommended

that the motion be denied on the grounds that Belfor was not obligated to obtain the consent

of a codefendant when there was nothing in the record to indicate it had been served, and

the court has adopted that recommendation. Doc. 38. Belfor also filed a cross-claim against

SRS, with which it received a summons that it returned as executed on May 3, 2022. Docs.

24–26. SRS then filed a motion to dismiss Belfor’s cross-claim pursuant to Rule 12(b)(6),

as well as the instant motion requesting dismissal of plaintiffs’ claims for failure to effect

service. Docs. 31, 32.

In its reply in support of this motion SRS explains that the Satsuma, Alabama,

address to which delivery was attempted is the office location of SRS but that CEO and

principal Cynthia Duke was not at the location during that time. Doc. 36. Specifically, Mrs.

Duke states that she and her husband were both admitted to the hospital with COVID-19

in August 2021. Doc. 36, att. 1, ¶ 6. Mr. Duke eventually died as a result of the disease. Id.

at ¶ 7. Mrs. Duke was discharged after a couple of weeks but remained at home

recuperating and did not return to work full-time at SRS’s headquarters until January 2022.

Id. at ¶¶ 7–8. During that time, however, Mrs. Duke states that she was monitoring SRS’s

mail and never received notice from the United States Postal Service of plaintiffs’ mailing.

Id. at ¶ 9. She also states that, for months preceding the delivery attempt of plaintiffs’

petition, SRS had difficulty with delivery of its U.S. mail and has never received a

satisfactory explanation from USPS. Id. at ¶¶ 10–11.

II.

LAW & APPLICATION

A. Legal Standards

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 (5th 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. Dep’t of Labor, 788 F.2d 1115,

1116 (5th 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 (E.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. Id. (citing Thompson v. Brown,

91 F.3d 20, 21 (5th Cir. 1996)).

B. Application

The Louisiana Long-Arm Statute allows service on non-resident defendants by

mailing a certified copy of the summons and complaint by certified mail or commercial

courier. La. Rev. Stat. § 13:3204(A). As the Eastern District recently emphasized, the

plaintiff’s duty is fulfilled by ensuring delivery rather than receipt:

Where there is no doubt as to the correctness of a non-resident

defendant's address, and service was “sent” to that address by certified or

registered mail, service is effective against that defendant under the

statute. See Matt v. Culpepper, No. 14-1464, 2014 WL 5816930, at *2–3

(E.D. La. Nov. 7, 2014) (Fallon, J.); McFarland v. Dippel, 756 So. 2d 618,

622 (La. App. 1st Cir. 2000) (“[A]ll that is necessary to constitute service

upon a non-resident under the long-arm statute is that counsel for the plaintiff

send a certified copy of the citation and of the petition in the suit to the

defendant by registered or certified mail, or actually deliver it in

person.”); Decca Leasing Corp. v. Torres, 465 So. 2d 910 (La. Ct. App. 3d

Cir. 1985) (“[T]he law is clear that a defendant may not be allowed to defeat

valid service by merely refusing to accept the letter containing the citation.”).

Walker v. Dupart, 2021 WL 2930728, at *2 (E.D. La. Jul. 12, 2021). The long-arm statute

does not require proof of receipt by signature when service is made by certified mail, as

long as there is no doubt as to the address. Matt, 2014 WL 5816930 at *2–*3. Here SRS

has admitted that the Satsuma, Alabama, address was the correct one. Difficulties with the

mail at that address and any mistake arising from Mrs. Duke’s personal absence from the

premises cannot serve to defeat service accomplished by proper mailing. Accordingly,

service was effective on SRS as of the attempted delivery in November 2021.

Il.

CONCLUSION

For the reasons stated above, the Motion to Dismiss [doc. 31] will be DENIED and

SRS will be granted an additional three-week grace period from the date of this ruling to

file an answer to plaintiffs’ claims.

THUS DONE AND SIGNED in Chambers on the 29th day of August, 2022.

. = JAMES D. CAIN, RK .

UNITED STATES DISTRICT JUDGE

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