Skypeak Fund I LP v. Celebration Riverboat Company, L.L.C. et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SKYPEAK FUND I LP 	CIVIL ACTION
VERSUS 	NO. 26-116
CELEBRATION RIVERBOAT COMPANY, 	SECTION: “G”(5)
LLC, ET AL.
ORDER AND REASONS
Before the Court is pro se Defendant Joseph Baer’s (“Baer”) “Motion to Quash/Exception
of Service of Process.”1 The Court construes Baer’s motion as a Motion to Dismiss under Rule
12(b)(5) of the Federal Rules of Civil Procedure for insufficient service of process.2 Plaintiff
Skypeak Fund I LP (“Plaintiff”) opposes the motion.3 Having considered the motion, the
memoranda in support and in opposition, the record, and the applicable law, the Court finds that
the Motion is moot because Plaintiff has agreed to re-serve Defendants.
Plaintiff filed a Complaint against Baer and Celebration Riverboat Company, LLC on
January 20, 2026.4 Plaintiff filed Proof of Service on January 21, 2026.5 The Proof of Service
states that Baer was personally served on January 21, 2026, at 12:56 p.m. at 633 Brandtly Ridge
1 Rec. Doc. 10.
2 The Court has liberally construed Defendant Baer’s pro se filing, applying less stringent standards than it
would to a party represented by counsel. United States v. Gonzales, No. 23-50193, 2024 WL 1478874, at *1 (5th Cir.
Apr. 5, 2024).
3 Rec. Doc. 13.
4 Rec. Doc. 1.
5 Rec. Doc. 6-1 at 2.
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Dr., Covington, KY 41015.6 According to the Proof of Service, Baer’s identity was “confirmed by
stating [his] name. The individual accepted service with direct delivery. The individual appeared
to be a blonde-haired white male contact 45-55 years of age, 5’4”-5’6” tall and weighing 140-160
lbs.”7
Baer filed the instant Motion asserting that he was not properly served, and that the Proof
of Service’s claims are “fabricat[ed]” and “impossible.”8 Baer avers that at the time of the alleged
service, he was underway aboard a vessel and that his Kentucky residence was vacant.9 In support
of this assertion, Baer provides a copy of the ship’s log from the date in question.10 Baer further
avers that he does not match the description of the individual who was allegedly served because
Baer weighs 240 pounds and has greying hair, rather than blonde hair.11
Plaintiff filed an Opposition stating that the Proof of Service is prima facie evidence of
sufficient service,12 but should the Court find otherwise, Plaintiff requests leave to perfect service
on both Defendants.13
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.”14 “In the absence of valid service of process,
6 Id.
7 Id.
8 Rec. Doc. 10 at 3.
9 Id.
10 Id. at 9.
11 Id.
12 Rec. Doc. 13 at 8.
13 Id. at 7–8.
14 Wallace v. St. Charles Parish Sch. Bd., 2005 WL 1155770, at *1 (E.D. La. May 5, 2005).
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proceedings against a party are void.”15 “When service of process is challenged, the party on whose
behalf it is made must bear the burden of establishing its validity.”16 “A signed return of service
constitutes prima facie evidence of valid service, which can be overcome only by strong and
convincing evidence.”17 District courts may consider affidavits or declarations to resolve the Rule
12(b)(5) motion.18 “If a defendant is not served within 90 days after the complaint is filed, the
court ... must dismiss the action without prejudice against that defendant or order that service be
made within a specified time.”19 District courts have broad discretion in determining whether to
dismiss for ineffective service of process.20 Ordinarily, “when a court finds that service is
insufficient but curable, it generally should quash the service and give the plaintiff an opportunity
to re-serve the defendant.”21
Plaintiff relies on the signed Proof of Service as prima facie evidence that Baer was
personally served at his home. Baer has provided convincing evidence to show that he was working
aboard a vessel on the date in question. Plaintiff bears the burden of showing that service was
proper, and it has not met that burden. Nevertheless, Plaintiff has agreed to re-serve both
Defendants. Therefore, the Court exercises its broad discretion to allow Plaintiff to re-serve
Defendants, which renders Baer’s motion moot.
15 Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, 635 F.2d 434, 435 (5th Cir. 1981).
16 Id.
17 People's United Equip. Fin. Corp. v. Hartmann, 447 F. App’x 522, 524 (5th Cir. 2011) (citations omitted).
18 See Kitchen v. Walk-On's Bistreaux & Bar, No. 19-1062, 2020 WL 2404911, *1 (W.D. La. May 12, 2020).
19 Fed. R. Civ. P. 4(m).
20 Henderson v. Republic of Texas, 672 F. App’x 383, 384 (5th Cir. 2016) (citing George v. U.S. Dept. of
Labor, Occupational Safety & Health Admin., 788 F.2d 1115, 1116 (5th Cir. 1986)).
21 Gregory v. U.S./U.S. Bankr. Ct. for Dist. of Colorado, 942 F.2d 1498, 1500–01 (10th Cir. 1991) (citation
and quotation marks omitted).
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Accordingly,
IT IS HEREBY ORDERED that Defendant’s “Motion to Quash/Exception of Service of
Process”22 is MOOT.
IT IS FURTHER ORDERED that Plaintiff Skypeak Fund I LP shall perfect service on
Defendants Joseph Baer and Celebration Riverboat Company, LLC within 21 days of this Order.
NEW ORLEANS, LOUISIANA, this _____ day of August, 2026.
______________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
22 Rec. Doc. 10.
3rd
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