The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GERTRAND ISIDORE CIVIL ACTION
VERSUS NO. 25-410
WESTPORT LINEN SERVICES, SECTION: “J”(3)
LLC ET AL.
ORDER AND REASONS
Before the Court are a Motion to Dismiss (Rec. Doc. 7), filed by Defendant
Westport Linen Services, LLC, and an opposition filed by Plaintiff Gertrand Isidore
(Rec. Doc. 10), to which Defendant replies (Rec. Doc. 11). Having considered the
motions and legal memoranda, the record, and the applicable law, the Court finds
that the motion should be construed as a motion to quash service on Defendant
Westport Linen Services, LLC, and should therefore be GRANTED, as more fully
explained below.
FACTS AND PROCEDURAL BACKGROUND
This case arises out of the termination of Plaintiff’s employment by Westport.
Employed by Westport as a maintenance handyperson, Plaintiff states he was
electrocuted while working on a washing machine, rendering him temporarily
unconscious and permanently without the use of an eye and a limb. After
unsuccessful negotiations related to the incident, Plaintiff avers his employment was
terminated. Against his former employer, he now alleges various theories of
discrimination, particularly related to his national origin. Plaintiff is of Haitian
descent, and complains that workplace documents were not translated into French or
Haitian Creole. Plaintiff further contends he suffered discrimination through lower
pay and more menial job tasks than other, non-Haitian employees. Among his federal
and state claims, Plaintiff alleges Westport, its Manager Bryan Palmer, and other
unnamed employees committed fraud, “engag[ing] in subterfuge in order to deprive
Plaintiff of his rights to maintenance and cure and/or other compensation related to
his injury at work.” (Rec. Doc. 1 at 25 ¶ 126).
Defendant Westport now moves to dismiss the Complaint, asserting failures in
service and pleading. Plaintiff opposes.
LEGAL STANDARD
A motion to dismiss pursuant to Rule 12(b)(5) of the Federal Rules of Civil
Procedure challenges the mode of delivery or lack of delivery of the summons and
complaint. A 12(b)(5) motion turns on the legal sufficiency of the service of process.
When a defendant contests the validity of service of process, the plaintiff bears the
burden of establishing that service of process was valid. Carimi v. Royal Caribbean
Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992) (citation omitted). A district
court has broad discretion to dismiss an action pursuant to Rule 12(b)(5) for
insufficient service of process. Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d
634, 645 (5th Cir. 1994) (citing George v. U.S. Dep’t of Lab., 788 F.2d 1115, 1116 (5th
Cir. 1986)).
The procedural requirements for proper service are set forth in Rule 4 of the
Federal Rules of Civil Procedure. Under Rule 4(e), an individual may be served by
following the procedural methods of service of process provided by the state in which
the district court is located, see Fed. R. Civ. P. 4(e)(1), or by doing any of the following:
(A) “delivering a copy of the summons and of the complaint to the individual
personally”; (B) “leaving a copy of each at the individual’s dwelling or usual place of
abode with someone of suitable age and discretion who resides there”; or (C)
“delivering a copy of each to an agent authorized by appointment or by law to receive
service of process.” Fed. R. Civ. P. 4(e)(2). Unless the document being served does not
require an appearance or answer, Louisiana law requires domiciliary or personal
service. La. Code Civ. Proc. arts. 1231, 1232, 1234, 1313.
Rule 4(m) gives a plaintiff ninety days to serve the defendants. Under Rule
4(m), when a plaintiff fails to serve a defendant within the ninety-day period, the
court “must dismiss the action without prejudice against that defendant or order that
service be made within a specified time.” Fed. R. Civ. P. 4(m). If, however, the plaintiff
shows good cause for the failure, “the court must extend the time for service for an
appropriate period.” Id. Good cause does not include “[a]ctions falling into the
category of inadvertence, mistake or ignorance of counsel”. Traina v. United States,
911 F.2d 1155, 1157 (5th Cir. 1990) (citation omitted).
Nonetheless, even absent a good cause finding, the Fifth Circuit has counseled
that a district court may still assess the fairness of an extension for proper service.
See Thompson v. Brown, 91 F.3d 20, 22 (5th Cir. 1996). To that end, the Court may
exercise its “broad discretion” to construe a motion to dismiss pursuant to Rule
12(b)(5) as a motion to quash service. See, e.g., U.S. Fire Ins. Co. v. Miller, 2002 WL
31886812, at *2 (E.D. La. Dec. 18, 2002). When there is “a reasonable prospect that
plaintiff ultimately will be able to serve defendant properly,” the appropriate course
of action is to quash service and allow the plaintiff an opportunity to effect proper
service, thus preserving the matter before the court. Thomas v. New Leaders for New
Schs., 278 F.R.D. 347, 352 (E.D. La. 2011) (citing 5B Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1354 (3d ed. 2004)); see also Amir El v.
Louisiana State, No. 16-2125, 2016 WL 6563403, at *2 (E.D. La. Nov. 4, 2016)
(citation omitted) (refusing to dismiss action where service is “insufficient but
curable”).
DISCUSSION
Westport makes various merits-based arguments for dismissal of Plaintiff’s
claims. These arguments, however, are unnecessary to reach at this time. See
Thomas, 278 F.R.D. at 352. Plainly, Plaintiff has failed to properly serve Westport.
Plaintiff attempted service on Westport’s registered agent through certified
mail: “I mailed the summons via US Certified Mail to Westport Linen Services, LLC,
through their registered agent for service of process, Eric Landry, which was
delivered on March 12, 2025, according to the attached USPS Domestic Return
Receipt.” (Rec. Doc. 4 at 2). Service through certified mail is not an accepted means
of service under federal or Louisiana law. Fed. R. Civ. P. 4(e)(1),(2); La. Code Civ.
Proc. arts. 1231, 1232, 1234, 1313.
Perplexingly, Plaintiff does not address his procedural failure. Instead, he
insists service occurred “expeditiously”, as the mailing occurred around two weeks of
the filing of the Complaint. (Rec. Doc. 10 at 3). If, however, service is not timely,
Plaintiff requests “good cause” excuse. Id.
This is not the first time counsel for Plaintiff has asserted a good-cause
exception for an obvious service error. Aldridge v. ExxonMobil et al., No. 24-2764
(E.D. La. April 30, 2025), ECF No. 20 at 4–5. As this Court previously instructed
counsel for Plaintiff in the unrelated matter, “An attorney’s failure to know and
comply with pertinent procedural rules is not a basis for good cause.” Id. at 5 (citing
Traina, 911 F.2d at 1157).
The instant Complaint was filed on February 27, 2025. Plaintiff is now beyond
his ninety-day deadline to properly serve defendants. See Fed. R. Civ. P. 4(m). Despite
this service failure and the absence of a good cause showing, the Court nevertheless
exercises its discretion in extending Plaintiff’s deadline to effect proper service on
Westport. There is “a reasonable prospect that plaintiff ultimately will be able to
serve defendant properly[.]” Thomas, 278 F.R.D. at 352. Thus, the Court interprets
Westport’s motion as one to quash service, and extends Plaintiff’s deadline to effect
service on Westport to August 8, 2025.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant Westport Linen Services, LLC’s
Motion to Dismiss (Rec. Doc. 7), construed as a motion to quash service, is GRANTED.
Plaintiff Gertrand Isidore shall effect proper service on Westport by no later than
August 8, 2025. Failure to do so—and to file proof of service in the record—will lead
to the dismissal of claims against Westport without further notice.
New Orleans, Louisiana, this 9th day of July, 2025.
CARL J. BA R
UNITED ST S DISTRICT JUDGE