Varnado v. Lynd Management Group et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MITCHELL G. VARNADO
VERSUS
LYND MANAGEMENT GROUP ET
AL.
CIVIL ACTION
NO. 25-1718
SECTION "L" (3)
REPORT AND RECOMMENDATION
Defendant Derrick Williams has filed a Motion to Dismiss (R. Doc. 28)
pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure. Pro se Plaintiff
Mitchell G. Varnado opposes the motion.1
I. 	Standard of Law
Rule 12(b)(5) concerns the adequacy of service. “A motion to dismiss pursuant
to Rule 12(b)(5) turns on the legal sufficiency of the service of process. The party
making service has the burden of demonstrating its validity when an objection to
service is made.” Holly v. Metropolitan Transit Authority, 213 F. App'x 343, 344 (5th
Cir. 2007); accord Calhoun v. City of Houston Police Department, No. 20-20311, 2021
WL 1326703, at *2 (5th Cir. Apr. 8, 2021). A federal district court “enjoys a broad
discretion in determining whether to dismiss an action for ineffective service of
process.” George v. U.S. Department of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986).
1 R. Doc. 29.
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II. 	Analysis
William argues that Plaintiff failed to effectuate service upon Williams under
Rule 4.2 Plaintiff reportedly served Williams with a complaint that was missing
several pages and therefore did not make proper service within ninety days of filing
the complaint. See Fed. R. Civ. P. 4(m), 4(c)(1) (“A summons must be served with a
copy of the complaint.”).
The 	undersigned 	declines, 	however, 	to 	recommend 	dismissal 	given 	that
plaintiff is a pro se litigant and has made some effort at service. As one court has
observed:
Although a plaintiff’s pro se status is not a license to ignore the Federal
Rules of Civil Procedure, pro se litigants are allowed more latitude than
litigants represented by counsel to correct defects in service of process.
Consistent with that principle, courts often decline to dismiss a pro se
plaintiff's case for defective service without first affording the plaintiff
the opportunity to correct any errors he or she may have made.
Johnson-Richardson v. University of Phoenix, 334 F.R.D. 349, 357 (D.D.C. 2020)
(citations, quotations, and ellipsis omitted); accord Lee v. Deutsche Bank National
Trust Co., Civ. Action No. 18-2887, 2019 WL 1057015, at *3 (E.D. La. Mar. 6, 2019)
(allowing an additional opportunity to effect proper service “given the Fifth Circuit’s
policy of leniency towards pro se plaintiffs”). Accordingly, even if a Rule 12(b)(5)
dismissal would be otherwise appropriate, the undersigned would first allow Plaintiff
an opportunity to correct any service defects before recommending dismissal of his
2 R. Doc. 28-1 at 3–5.
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claims pursuant to Rule 12(b)(5). See Fed. R. Civ. P. 4(m) (“If a defendant is not served
within 90 days after the complaint is filed, the court [must] order that service be made
within a specified time.”).
RECOMMENDATION
It is therefore RECOMMENDED that the Motion to Dismiss (R. Doc. 28) be
DENIED.
It is further RECOMMENDED that Plaintiff is allowed 90 days from the
issuance of the District Judge’s order to make proper service of his original and
amended complaints.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within 14
days after being served with a copy shall bar that party, except upon grounds of plain
error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court, provided that the party has been served
with notice that such consequences will result from a failure to object. 28 U.S.C. §
636(b)(1); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996)
(en banc) superseded by statute on other grounds.
New Orleans, Louisiana, this 24 th day of March, 2026.
EVA J. DOSSIER
UNITED STATES MAGISTRATE JUDGE
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