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finding that plaintiff did not have authority to personally serve the Secretary of State pursuant to Article 1262 without certification of a diligent effort to personally serve the defendant's agent
Summary of this case from Bernard v. GreferOpinion
CIVIL ACTION NO. 02-3303 SECTION "C" (2).
March 28, 2005
ORDER
Leigh A. Shipp, a third year law student at Tulane University Law School, assisted in the research and preparation of this decision.
Before the Court are two motions by the plaintiff, one seeking reconsideration of this Court's determination of improper service of process against Defendant One Up Entertainment, LLC, under La. Code Civ. P. art 1261 and another requesting, first, that the Court reopen the judgment dismissing Defendant Percy Miller, and, second, that the Court enter a default judgment against Miller. For the reasons that follow, Plaintiff's Motion to Reconsider is denied, and the Motion to Reopen and Motion for Entry of Default is also denied.
Procedural Background
Plaintiff initially filed the lawsuit on November 1, 2002 against Percy Miller in his individual capacity, also naming Miller's business entities as party defendants. (Rec. doc. 1). However, Plaintiff has struggled, without success, to effect proper service of process on Defendant Miller in his individual capacity and on Defendant One Up Entertainment, LLC.
A second business entity, 504 Boyz, was dismissed as a party defendant on Plaintiff's motion. (Rec. doc. 15).
On April 22, 2003, Plaintiff moved for an Entry of Preliminary Default against Defendant Miller, and then filed an Amended Motion for Preliminary Default on April 30, 2003. (Rec. docs. 7, 8). On May 5, 2003, the Court entered an entry of default against Defendants Percy Miller and One Up Entertainment, LLC. (Rec. doc. 10). Thereafter, Plaintiff submitted to the Court a Memorandum in Support of a Motion for Default Judgment on September 18, 2003. (Rec. doc. 17). However, no Motion for Default Judgment was filed. On September 22, 2003, the Court issued a Minute Entry stating that default judgment could not be entered because Plaintiff failed to follow the form requirements of Rule 55 of the Federal Rules of Civil Procedure. (Rec. doc. 18). On September 25, 2003, the Court vacated the default entered on May 5, 2003 based on improper service of process. (Rec. doc. 20). The Court also ordered Plaintiff to effect proper service of process upon Defendants Miller and One Up Entertainment by October 29, 2003. Plaintiff received an additional extension until November 26, 2003 to effect proper service of process based on Plaintiff's representation to the Court that Defendant moved from Louisiana to California. (Rec. doc. 23). On November 26, 2003, the Court dismissed Plaintiff's claims against Defendant Miller without prejudice for failing to effectuate service of process. (Rec. doc. 26).
On December 4, 2003, Plaintiff filed a Motion for New Trial And Alternatively For Reconsideration. (Rec. doc. 27). The Court denied the motion on December 9, 2003, explaining that if Plaintiff could locate Defendant Miller, Plaintiff could move to reinstate Defendant and then effect proper service. (Rec. doc. 28). Plaintiff then filed a Motion for Entry of Default and Motion for Default Judgment as to Defendant One Up Entertainment, LLC, on January 8, 2004. (Rec. docs. 29, 30). The Court subsequently denied both motions on January 13, 2004, based on improper service. (Rec. doc. 31). However, the Court granted an extension until February 12, 2004, for Plaintiff to effect proper service on Defendant. On February 18, 2004, the Court dismissed Plaintiff's claims against Defendant One Up Entertainment for failure to properly serve Defendant. (Rec. doc. 32). Accordingly, having dismissed all defendants, the Court dismissed Plaintiff's complaint for failure to prosecute on February 18, 2004. (Rec. doc. 33).
On March 5, 2004, Plaintiff moved for a new trial, which was granted by the Court on March 18, 2004. (Rec. docs. 34, 35). As of this date, the Court reopened the case against One Up Entertainment, LLC and ordered Plaintiff to file a return of service and a Motion for Entry of Default by April 18, 2004. Plaintiff filed a Motion for Entry of Default on April 13, 2004, against Defendant One Up Entertainment, which was denied on May 3, 2004. (Rec. docs. 38, 40). On July 2, 2004, the Court issued Minute Entry explaining in detail the process necessary to obtain a default judgment. (Rec. doc. 44). On July 16, 2004, Plaintiff filed a Request for Entry of Default, having submitted an affidavit showing that a summons and complaint was served on the Louisiana Secretary of State on November 18, 2003. (Rec. doc. 46). The court entered an entry of default against Defendant One Up Entertainment on July 22, 2004. (Rec. doc. 46). Plaintiff also submitted a Motion for Default Judgment and a Memorandum of Law in Support of the Motion on July 16, 2004, which was denied on July 22, 2004. (Rec. doc. 47).
Plaintiff then submitted a Motion for Default Judgment on August 17, 2004. (Rec. doc. 48). On November 9, 2004, this Court denied without prejudice Plaintiff's Motion for Default Judgment against Defendant One Up Entertainment and vacated the entry of default against this defendant entered on July 22, 2004. (Rec. doc. 51). The Court found the July 22, 2004 entry of default to be in error because of insufficient service of process of the summons and complaint. The court explained that, "[g]enerally, service by mail is only proper for non-resident corporations" and that Plaintiff "must demonstrate an attempt to personally serve a proper agent of the resident corporation."
The Court first denied Plaintiff's motion on October 28, 2004 for failure to move for an entry of default, having overlooked Plaintiff's July 22, 2004 entry of default. (Rec. doc. 50). The Court reconsidered Plaintiff's Motion for Default Judgment on November 9, 2004, in light of the entry of default.
The Court then described in detail the proper method for serving a corporation in the United States under Fed.R.Civ.P. 4(h)(1). The Court stated that Plaintiff would be able to move for default judgment against Defendant One Up Entertainment, LLC, only after serving Defendant according to law.
Motion to Reconsider
Plaintiff again requests this Court to consider his service on the Louisiana Secretary of State on November 18, 2003, as proper service on Defendant One Up Entertainment, LLC, a domestic limited liability company. However, Fed.R.Civ.P. 4(h)(1) provides only two methods of serving a limited liability company located in the United States.
In previous decisions of this Court and in memoranda submitted by Plaintiff, Defendant One Up Entertainment, LLC, has been analyzed under the service of process rules applicable to domestic or foreign corporations, namely Fed.R.Civ.P. 4(h)(1) and La. Code Civ. P. art. 1261 and art. 1262. However, One Up Entertainment, LLC, is designated as a limited liability company, not as a corporation. Curiously, the complaint names as a defendant One Up Entertainment, LLC, d/b/a No Limit Records, Inc. The designation, "Inc.," suggests that No Limit Records, Inc. is a corporation, not a limited liability company. However, the motion before the Court refers only to One Up Entertainment, LLC. Accordingly, the Court will treat One Up Entertainment as a limited liability company for the purposes of this decision and will thus reference the statutes applicable to limited liability companies. The distinction does not affect the ultimate ruling on this motion because the governing rules for corporations and limited liability companies are substantially parallel.
First, a plaintiff may effect service under state law. Louisiana law provides that service of process on a domestic or foreign limited liability company is made by personal service on any one of its agents for service of process. See La. Code Civ. P. art. 1266(A), 1232. Article 1266 further provides that, "[i]f the limited liability company has failed to designate an agent . . . or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent," service of process may be made by any of the following methods:
(1) Personal service on any manager if the management of the limited liability company is vested in one or more managers or if management is not so vested in mangers, then on any member.
(2) Personal service on any employee of suitable age and discretion at any place where the business of the limited liability company is regularly conducted.
(3) Service of process under the provisions of R.S. 13:3204, if the limited liability company is subject to the provisions for R.S. 13:3201.
A plaintiff may alternatively make personal service on the secretary of state, or a designated person in his office, after the process server certifies his inability to make service in accordance with Article 1266. La. Code Civ. P. art. 1267.
Second, Rule 4(h)(1) provides for service upon a limited liability company "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process." See Pellerin-Mayfield v. Goodwill Industries, 2003 WL 21474649, *1, *1 (E.D.La. Vance). The rule also "contemplates that, in addition to delivering a copy of the summons and complaint to the registered agent of a corporation, certain statutes may require that a copy of the summons and complaint be sent by mail to the defendant [company] as well." Id. at n. 2.
Plaintiff asserts that the efforts to serve Defendant constitute "diligent effort" invoking the provision in Article 1262 that allows for service to be made personally on the secretary of state. Plaintiff claims that attempts to serve Defendant personally have failed because Defendant has moved. However, according to Article 1262, the "officer making service" must certify "that he is unable after diligent effort, to have service made as provided in Article 1261." Plaintiff has submitted no such certification in support of the Motion to Reconsider. Simply asserting that Defendant cannot be served personally because Defendant has moved does not qualify as certification for purposes of Article 1262 (nor for the purposes of Article 1267). As this Court explained in a Minute Entry dated July 2, 2004:
La. Code Civ. P. art. 1267 [which applies the exact language used in Article 1262 to limited liability companies] provides:
If the officer making service certifies that he is unable, after diligent effort, to have service made as provided in Article 1266, then the service may be made personally on the secretary of state, or on a person in his office designated to receive service of process on limited liability companies. The secretary of state shall forward this citation to the limited liability company at its last known address.
Plaintiff should take extra precaution to brief how he thinks service of process was properly effectuated and documentation showing that what happened meets the standard required for the method of service of process Plaintiff believes he has properly effectuated. For instance, in a case in which a plaintiff believes he has properly effectuated service of process upon the Louisiana Secretary of State after exhausting all other methods, the plaintiff should state that in his affidavit and include another affidavit of the person making service of process stating that, after he used due diligence to serve the defendant in all manners provided by La. Code Civ. Proc. art. 1266 and was unsuccessful in his attempt to effectuate service, he served the Louisiana Secretary of State. (Keep in mind that in cases of personal service the officer must be one authorized by law to make such service. Keep in mind also that if Plaintiff has not used diligent effort to serve pursuant to the long arm statute where the limited liability company is subject to the provisions of the long arm statute — e.g., it is a foreign LLC — then service upon the Louisiana Secretary of State is improper.) Also, although not necessary, proof that the Louisiana Secretary of State mailed the service of process to the LLC's last known address would be helpful.
Absent the certification from the service officer of diligent effort to serve Defendant personally, Plaintiff does not have authority for serving Louisiana Secretary of State instead. Thus, Plaintiff still has not effected valid service of process on Defendant.
Motion to Reopen and Motion for Entry of Default
Plaintiff also requests the Court to reopen the judgment dismissing Defendant Percy Miller based on new service of process upon him. Plaintiff also requests the court to enter an entry of default against Defendant on the grounds that he failed to respond within the time period for answering the complaint.
On February 18, 2004, this Court dismissed Plaintiff's claim against Defendant Percy Miller for Plaintiff's failure to prosecute. Typically, a court may relieve a party from a final order or judgment only "[o]n motion and upon such terms as are just" for reasons specified in Fed.R.Civ.P. 60(b). Plaintiff has made no mention of Rule 60 in his Motion to Reopen. Instead, Plaintiff states only that "[a]fter careful research, it was recently discovered from Central District of California Western Division the physical address of Mr. Percy Miller at 9663 Santa Monica Blvd., Suite 314, Beverly Hillers [sic], CA 90210." There is no argument by Plaintiff that this constitutes "newly discovered evidence" for the purposes of Rule 60(b)(2) and no evidence that this address for service of process was previously unattainable by Plaintiff. Nor has Plaintiff put forth "any other reason justifying relief from the operation of judgment" for the purposes of Rule 60(b)(6). Thus, Plaintiff has made no persuasive argument for reopening the judgment dismissing Mr. Miller. Consequently, the Court need not consider Plaintiff's Motion for Entry of Default.
Fed.R.Civ.P. 60(b) provides, in relevant part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . . misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
Accordingly,
IT IS ORDERED that Plaintiff's Motion to Reconsider with respect to One Up Entertainment is hereby DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion to Reopen and Motion for Entry of Default with respect to Percy Miller is hereby DENIED. The February 19, 2004 Judgment (Rec. doc. 33) dismissing Plaintiff's claims as to all parties STANDS.
While the Court does not deny Plaintiff's motions with prejudice, this is done only to signify that the case had not been addressed on the merits. Should Plaintiff locate and attempt to serve Percy Miller or One Up Entertainment in the proper venue, he has the right to do so. The Court does not wish to foreclose Plaintiff's ability to bring a suit that has yet to be decided on the merits by denying it with prejudice. However, the Court strongly cautions Plaintiff that if he continues to revisit the Court's ruling without substantial new evidence and a thorough review of the law, he may be subject to sanctions under Fed.R.Civ.P. 11(b).