Opinion
Civil Action No. 04-1376 Section "K"(1).
May 4, 2005
Before the Court is Defendant's Motion To Dismiss Pursuant To Rule 12(B)(5) (Rec.Doc. 13). The instant motion was set for hearing on March 16, 2005. Plaintiff has failed to file an opposition. Furthermore, this Court provided the Plaintiff with a second opportunity to properly serve the defendant on January 11, 2005, which she has failed to do (Rec. Doc. 12). Therefore, the Court GRANTS Defendant's motion.
BACKGROUND
On May 24, 2004, Plaintiff, not represented by counsel, filed suit against Defendant alleging racial discrimination in her employment (Rec.Doc.3). On July 2, 2004, she filed a return of summons and complaint on the Defendant (Rec.Doc.5). The return indicated that Plaintiff personally served the summons and complaint at the "School Board Office." On September 3, 2004, Plaintiff filed an affidavit for default judgment seeking to recover damages (Rec. Doc. 7). The Magistrate found that Plaintiff did not comply with the Federal Rules of Civil Procedure and state law in order to effectuate proper service and allowed Plaintiff to serve Defendant by November 17, 2004 (Rec. Doc. 8). Thereafter, the Magistrate recommended that because Plaintiff did not properly serve the Defendant or demonstrate good cause for failing to do so that her complaint be dismissed without prejudice (Rec. Doc. 9).
This Court on January 11, 2005 found that Plaintiff did not sufficiently understand the Magistrate's instructions as to service of process and provided Plaintiff with an additional 30 days to properly serve the summons and complaint in accordance with Louisiana Revised Statute 17:51 which provides in pertinent part: "In suits against school boards citation shall be served on the president of the board and in his absence on the vice-president," and Fed. Rule Civ. Proc. 4(c) which provides, "[s]ervice may be effected by any person who is not a party and who is at least 18 years of age." (Rec. Doc. 12).
On January 28, 2005, Plaintiff served Assistant Superintendent of the St. Charles Parish School Board, John C. Walker; however, Plaintiff failed to comply with Fed. Rule Civ. Proc. 4(c)(2) because Plaintiff attempted to serve her Complaint on the School Board herself. See Defendant's Motion, Exhibit A, Service Return.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim if service of process was not timely made in accordance with Federal Rule of Civil Procedure 4 or was not properly served in the appropriate manner. Specifically, Rule 4(c)(2) which applies here requires that service may be effected by anyone who is not a party to the case and is at least 18 years of age. "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." Systems Signs Supplies v. U.S. Dept. of Justice, Washington, D.C., 903 F.2d 1011, 1013 (5th Cir. 1990). Accordingly, Plaintiff has failed to carry her burden in the instant matter. Furthermore, under Rule 4(m) of the Federal Rules of Civil Procedure, Plaintiff has 120 days from the filing of her complaint to properly serve the School Board, which she has not done. The Plaintiff has failed to serve the Defendant both in an appropriate or timely manner. Accordingly,
IT IS HEREBY ORDERED that Defendant's Motion To Dismiss Pursuant to Rule 12(B)(5) is GRANTED.