Opinion
CIVIL ACTION NO: 01-990 SECTION: "J"(1)
August 1, 2001
ORDER AND REASONS
1. Procedural Background
The plaintiff, Dezerie Mabon, filed a petition in Civil District Court for the Parish of Orleans, State of Louisiana, on March 5, 2001, naming as defendants, Park One of Louisiana, Inc. d/b/a Park One, Inc. ("Park One") and Jimmy Baker ("Baker"). The petition showed that service on Baker was withheld. Rec. doc. 1. On April 12, 2001, Park One removed the action to this Court and the action was automatically referred to the undersigned. Rec. doc. I.
Mabon has not served Baker since the case was removed to federal court. On May 22, 2001, the undersigned issued a minute entry requiring Mabon to appear in court on June 13, 2001, and report the status of the case. Rec. doc. 2. Mabon did not appear as ordered and the undersigned issued a minute entry stating that a recommendation would be made to dismiss Baker without prejudice after the expiration of 120 days from the filing of the petition or by about July 5, 2001. Rec. doc. 3. No evidence of service of Baker has been placed in the record since the issuance of that minute entry.
On July 9, 2001, Mabon and Park One consented to the trial of this action before the undersigned pursuant to 28 U.S.C. § 636 (c). Rec. doc. 7. A preliminary conference was held and the trial was set for November 28, 2001. Rec. doc. 5.
Inasmuch as Baker was never served, he could not consent to the trial before the undersigned. It is necessary that Mabon's failure to serve Baker be resolved at this time.
2. Law Applicable to Mabon's Failure to Serve Baker
In all cases removed from any State court to any district court of the United States in which anyone or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, . . . such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.28 U.S.C. § 1448. Fed.R.Civ.P. 4(m) provides that if service of the summons and complaint is not made upon a defendant within 120 days of the filing of the complaint, the court upon its own motion shall dismiss the action as to that defendant without prejudice after notice to the plaintiff.
3. Conclusion
More than 120 days have elapsed since Mabon filed this action in state court and there is no evidence of any effort by Mabon to serve Baker. It is therefore ORDERED that the claims asserted against defendant, Baker, be dismissed without prejudice from this action.