Opinion
CIVIL ACTION NO: 02-1828, SECTION: "R" (2)
December 18, 2002
ORDER
Before the Court is the motion of defendant to dismiss with prejudice plaintiff's complaint for insufficiency of service of process under Federal Rule of Civil Procedure 12(b)(5). It is undisputed that plaintiff served process on defendant's mother, Jocelyn Miller, at 105 Holiday Drive, Port Sulfur, Louisiana, 70083 on June 21, 2002. Defendant claims that, upon information and belief, this address was not her legal domicile and that on or about June 21, 2002, she was incarcerated at the Plaquemines Parish Detention Center. Defendant offers no evidence of these facts and cites no law to support her argument. Defendant also claims that she does not recall actually receiving the process.
Plaintiff responds that it discovered defendant's address through the June 2001 State of Louisiana police accident report involved in this case, attached as evidence, in which defendant herself provided the above address. Plaintiff points out that the address was indeed accurate, because defendant's mother resided there and accepted service on defendant's behalf. Plaintiff also notes that it granted two extensions to defendant to file responsive pleadings when the matter came up on the Court's call docket, during which time defendant never raised an objection to sufficiency of service of process. Rather, plaintiff opines, defendant deliberately waited until the prescriptive period of 120 days passed under Federal Rule of Civil Procedure 4(m) to raise this objection.
Service of process may be made as follows:
[B]y delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein . . .
FED. R. Civ. P. 4(e)(2). There is no dispute that plaintiff complied with the requirements of this rule. Plaintiff left the summons and complaint with defendant's mother, a person of suitable age and discretion, at the dwelling house or usual place of abode which defendant herself identified in a state police report. Defendant has brought forth no evidence to show that defendant's domicile was any place other than this address, or even to prove specific dates when defendant was incarcerated in the Plaquemines Parish Detention Center. The mere fact, if true, that defendant was incarcerated for some period of time does not justify defendant's contention that 105 Holiday Drive, Port Sulfur, Louisiana, 70083 was not her dwelling house or usual place of abode. To the contrary, that defendant's mother resided at that address and accepted process for her daughter implies the opposite conclusion. Moreover, if a proper method of service is followed, due process is satisfied even if the defendant does not receive actual notice. All that is required is that the service be reasonably calculated to provide notice. See Tripp v. Pollard, 1992 U.S. Dist. LEXIS 13503, *11 (E.D. La.) (citing McGee v. International Life Ins. Co., 355 U.S. 220 (1957); International Shoe Co. v. Washington, 326 U.S. 310 (1945)).
The Court finds that plaintiff's conduct in serving process to defendant's mother at the address defendant provided to the police in the accident report was reasonably calculated to provide notice. Whether defendant recalls actually receiving the process is immaterial. Regardless, even if the Court found that plaintiff failed to effect proper service of process within 120 days after the filing of the complaint, the Court "shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period." FED. R. CIV. P. 4(m) (emphasis added). Thus, defendant's motion to dismiss with prejudice is not grounded in the law, and the Court would be inclined to construe the motion to dismiss as a motion to quash service. Numerous motions under Rule 12(b)(5) have been treated as motions to quash service. See CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE PROCEDURE § 1353 at 286 (2d ed. 1990). Where the propriety of service is unclear, "the simplest solution . . . is to quash process and allow plaintiff another opportunity to serve defendant." Id. at 289-90. The Court does not arrive at the need to quash service, however, as the Court finds that plaintiff's service was sufficient and proper. Defendant's motion is DENIED.