The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICARDO GUTIERREZ CIVIL ACTION
VERSUS No. 23-3865
FOREMOST INSURANCE COMPANY
GRAND RAPIDS, MICHIGAN SECTION I
ORDER & REASONS
Before the Court is defendant Foremost Insurance Company Grand Rapids,
Michigan’s (“Foremost Insurance”) motion1 to dismiss this matter pursuant to
Federal Rules of Civil Procedure 12(b)(5) and 4(m). Plaintiff Ricardo Gutierrez
(“Gutierrez”) filed a motion2 in opposition. And Foremost Insurance filed a reply.3
I. BACKGROUND
Gutierrez filed this lawsuit on August 20, 2023 alleging breach of an insurance
contract regarding damage to property sustained during Hurricane Ida.4 On May 17,
2024, Foremost Insurance filed this motion claiming that Gutierrez failed to serve it
with process until February 6, 2024, long after the ninety-day time limit for service
allowed pursuant to Federal Rule of Civil Procedure 4(m).5 In a response, filed a day
after the deadline, Gutierrez argues that there was good cause for the delay, requiring
1 R. Doc. No. 22.
2 R. Doc. No. 23.
3 R. Doc. No. 24.
4 R. Doc. No. 1, at ¶¶ 14, 26–30.
5 R. Doc. No. 22, at 2.
this Court to extend the time for service pursuant to Rule 4(m).6 Specifically,
Gutierrez argues that he was previously represented by McClenny Moseley &
Associates (“MMA”), which law firm was suspended due to misconduct, leaving him
and many of their other former clients without representation.7 The difficult
measures that Gutierrez’s new counsel had to undertake to “organize, sort, and
pursue these claims,” Gutierrez argues, constitute good cause for the delay.8
In its reply, Foremost Insurance argues that the Court should strike
Gutierrez’s motion in opposition because of his delay in filing his response a day late
and consider the motion as unopposed.9 Foremost Insurance also argues that the
difficulties caused by MMA do not constitute good cause because the CMO already
established an automatic extension of twenty days to serve defendants after enrolling
new counsel.10 Gutierrez enrolled new counsel on December 18, 2023,11 which
Foremost Insurance argues would require service by no later than January 8, 2024.12
Foremost Insurance was served on February 6, 2024.13
II. LAW & ANALYSIS
a. Motion to Strike Gutierrez’s Response
“Each party opposing a motion must file and serve a memorandum in
6 R. Doc. No. 23, at 1–2.
7 Id.
8 Id. at 2.
9 R. Doc. No. 24, at 1–3.
10 Id. at 3–5.
11 R. Doc. No. 9.
12 R. Doc. No. 24, at 5.
13 R. Doc. No. 12.
opposition to the motion with citations of authorities no later than eight days before
the noticed submission date.” L.R. 7.5.
Here, the noticed submission date for Foremost Insurance’s motion was June
12, 2024. Gutierrez therefore had until June 4, 2024 to file a motion in opposition.
However, Gutierrez did not file his motion until June 5, 2024.14 In his motion,
Gutierrez provides no reason for his failure to timely respond.15 However, the Court
declines to strike Gutierrez’s motion and considers all arguments therein.
b. Motion to Dismiss
Federal Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period. This
subdivision (m) does not apply to service in a foreign country under Rule 4(f),
4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).
Fed. R. Civ. P. 4(m).
The Fifth Circuit has interpreted this language to mean that “[i]f good cause
is present, the district court must extend time for service. If good cause does not exist,
the court may, in its discretion, decide whether to dismiss the case without prejudice
or extend time for service.” Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996).
Here, the Court, in its discretion, declines to dismiss Gutierrez’s action. While
the Court cannot condone the delay in serving Foremost Insurance in this case,
14 R. Doc No. 23.
15 See generally id.
Foremost Insurance does not allege that it has been prejudiced by the delay,!® and it
has been properly served since February.” Accordingly, rather than requiring
Gutierrez to refile his claim, the Court will deny Foremost Insurance’s motion to
dismiss.
II. CONCLUSION
Accordingly, and for the foregoing reasons,
IT IS ORDERED that Foremost Insurance’s motion to dismiss is DENIED.
New Orleans, Louisiana, July 8, 2024.
LANCE AFRICK
UNITED STATES DISTRICT JUDGE
16 See generally R. Doc No. 24.
17 R. Doc. No. 12.