Savoy v. Kenner Police Department et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRADLEY JOSEPH LAWRENCE SAVOY 	CIVIL ACTION
VERSUS 	No. 25-1178
KENNER POLICE DEPARTMENT, ET AL. 	SECTION I
ORDER AND REASONS
Before the Court is defendant Ochsner Medical Center – Kenner’s (“Ochsner”)
motion1 to dismiss plaintiff Bradley Joseph Lawrence Savoy’s (“plaintiff”) complaint2
against Oschner pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(4),
12(b)(5), and 12(b)(6). Plaintiff has not submitted a response to the motion and the
deadline to file a timely response has passed.3 For the reasons that follow, the Court
grants Oschner’s motion to dismiss.
I. 	BACKGROUND
Thia case arises out of an encounter between plaintiff and Kenner police
officers.4 Plaintiff alleges that on August 10, 2024, he suffered “a heat-related medical
emergency while at the United States Post Office in Kenner, Louisiana.”5 He claims
that he then engaged in a conversation with Kenner police officers, who detained and
1 R. Doc. No. 23.
2 R. Doc. No. 1.
3 Ochsner’s motion to dismiss was submitted for decision before this Court on October
22, 2025. R. Doc. 23-4. Pursuant to Local Rule 7.5, a party opposing a motion must
file a response in opposition “no later than eight days before the noticed submission
date.” Accordingly, the deadline for plaintiff to file a timely response was October 14,
2025.
4 R. Doc. No. 1 ¶¶ 10–19.
5 Id. ¶ 10.
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physically 	restrained 	plaintiff 	“despite 	[him] 	being 	neither 	under 	arrest 	nor
exhibiting violent or criminal behavior.”6 Plaintiff claims that emergency medical
personnel arrived at the scene, but failed to treat plaintiff’s heat-related condition,
instead treating him as a “combative subject.”7
Plaintiff alleges that he was then taken to Ochsner, where he “was forcibly
injected with a psychotropic sedative commonly used for behavioral control—without
a court order, informed consent, or medical emergency,” despite the fact that he
explicitly refused to accept any psychiatric medication.8 Plaintiff further alleges that
he was then involuntarily transferred to Beacon Behavioral Hospital “without any
judicial commitment process, mental health evaluation, or valid consent.”9 According
to plaintiff’s complaint, at no time was he arrested, charged with a crime, read his
Miranda rights, or subjected to a civil commitment proceeding.10
Plaintiff has filed a complaint “pursuant to 42 U.S.C. § 1983,” alleging
excessive force, deliberate indifference to medical needs, forced injection without
consent, and false imprisonment.11 Plaintiff named as defendants the City of Kenner,
Kenner Police Department, Ochsner, Beacon Behavioral Hospital, and Kenner
Emergency Medical Services.12
6 Id. ¶ 13.
7 Id. ¶ 14.
8 Id. ¶¶ 15–16.
9 Id. ¶ 17.
10 Id. ¶ 18.
11 Id.
12 Id.
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The City of Kenner subsequently filed its motion to dismiss13 pursuant to Rule
12(b)(6), asserting that plaintiff has failed to state a claim upon which relief can be
granted, and that the Kenner Police Department and Kenner Emergency Medical
Services cannot be sued because they are not legal entities. The Court granted the
City of Kenner’s motion on October 24, 2025, and dismissed plaintiff’s claims against
the City.14
Neither 	the 	Kenner 	Police 	Department 	nor 	Kenner 	Emergency 	Medical
Services filed an answer within the time required by Federal Rule of Civil Procedure
12, and plaintiff failed to move for an entry of default pursuant to Federal Rule of
Civil Procedure 55(a) as to either defendant.15 Accordingly, on September 30, 2025,
this 	Court 	ordered16 	plaintiff 	to 	show 	cause 	why 	defendants 	Kenner 	Police
Department and Kenner Emergency Medical Services should not be dismissed. In
that order, the Court advised that “[t]he defendants listed will be dismissed upon
failure of the plaintiff to report the status thereof or in the absence of good cause
shown why the defendants should remain on the docket.”17 Plaintiff did not appear
at the hearing.18 Consequently, the Court dismissed defendants Kenner Police
Department and Kenner Emergency Medical Services.19
13 R. Doc. No. 11.
14 R. Doc. No. 29.
15 R. Doc. No. 25.
16 Id.
17 Id.
18 R. Doc. No. 28.
19 Id.
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Plaintiff’s complaint states four claims against five defendants, and three of
those claims are asserted against Ochsner. First, plaintiff asserts a claim for
“deliberate indifference to medical needs,” arguing that “defendants acted with
deliberate indifference to [p]laintiff’s serious medical needs by failing to recognize
and treat symptoms of heat exhaustion, in violation of the Fourteenth Amendment.”20
Second, plaintiff alleges that Ochsner “violated [p]laintiff’s substantive due process
rights 	under 	the 	Fourteenth 	Amendment” 	by 	injecting 	him 	with 	psychotropic
medication without his consent.21 Plaintiff also claims that Ochsner is liable for false
imprisonment because it “unlawfully transported and confined [p]laintiff in a mental
health facility without lawful process or justification.”22
II. STANDARD OF LAW
Federal Rule of Civil Procedure 12(b)(4) allows a defendant to file a motion for
dismissal for “insufficient process.” “An objection under Rule 12(b)(4) concerns the
form of the process rather than the manner or method of its service.” Baton Rouge
Total Care Ctr. v. Regency 14333, No. 14-168, 2014 WL 5794995, at *1 (M.D. La. Nov.
6, 2014) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1353 (3d ed.)). “Technically, therefore, a Rule 12(b)(4) motion is proper
only to challenge noncompliance with the provisions of Rule 4(b) or any applicable
provision incorporated by Rule 4(b) that deals specifically with the content of the
summons.” 	Id. 	“Conversely, 	a 	‘Rule 	12(b)(5) 	motion 	is 	the 	proper 	vehicle 	for
20 R. Doc. No. 1 ¶ 23.
21 Id. ¶ 25.
22 Id. ¶ 26.
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challenging the mode of delivery or the lack of delivery of the summons and
complaint.’” Id. (quoting Wright & Miller, § 1353); see also Raburn v. Dae Woo, Inc.,
No. 09-1172, 2010 WL 743933, at *1 (N.D. Tex. Mar. 3, 2010) (“A 12(b)(5) motion to
dismiss poses a challenge to the manner or method or service attempted by the
plaintiff rather than the form or content of the summons.”).
Federal Rule of Civil Procedure 12(b)(5) provides that an action may be
dismissed for “insufficient service of process.” Rule 12(b)(5) allows “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.” Worley v.
Louisiana, No. 10-3313, 2012 WL 218992, at *2 (E.D. La. Jan. 25, 2012) (Africk, J.)
(quoting Wallace v. St. Charles Sch. Bd., No. 04-1376, 2005 WL 1155770, at *1 (E.D.
La. May 5, 2005) (Duval, J.)). Absent proper service of process, the court cannot
exercise jurisdiction over a party named as a defendant. Murphy Bros., Inc. v.
Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999).
“When service of process is challenged, the serving party bears the burden of
proving its validity or good cause” for failing properly to effect service. Shabazz v. City
of Houston, 515 F. App’x 263, 264 (5th Cir. 2013) (quoting Sys. Signs Supplies v. U.S.
Dep’t of Just., 903 F.2d 1011, 1013 (5th Cir. 1990) (per curiam)). “[T]he district court
enjoys a broad discretion in determining whether to dismiss an action for ineffective
service of process.” Hawkins v. Potter, 234 F.App’x 188, 189 (5th Cir. 2007) (quoting
George v. U.S. Dep’t of Lab., Occupational Safety & Health Admin., 788 F.2d 1115,
1116 (5th Cir. 1986) (per curiam).
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Rule 4(c)(1) provides that “[a] summons must be served with a copy of the
complaint. The plaintiff is responsible for having the summons and complaint served
within the time allowed by Rule 4(m).” To serve “a domestic or foreign corporation, or
a partnership or other unincorporated association” in a judicial district of the United
States, Rule 4(h) requires that the organization must be served:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B)
by delivering a copy of the summons and of the complaint to an officer, a
managing23 	or 	general 	agent, 	or 	any 	other 	agent 	authorized 	by
appointment or by law to receive service of process and–if the agent is one
authorized by statute and the statute so requires–by also mailing a copy of
each to the defendant.
Fed. R. Civ. P. 4(h). To serve an individual pursuant to Rule 4(e)(1), the plaintiff must
“follow[] state law for serving a summons . . . in the state where the district court is
located or where service is made.”
To properly serve a limited liability company pursuant to Louisiana law, the
plaintiff must serve the “citation or other process . . . by personal service on any one
of its agents for service of process.”24 L A. CODE CIV. P. art. 1266(A). An “agent”
23 A managing agent is someone who exerts significant managerial authority within
the corporation and is a “responsible party in charge of any substantial phase” of a
corporation. Ganpat v. E. Pac. Shipping, PTE. Ltd. 434 F.Supp.3d 441, 458–59 (E.D.
La. 2020) (Morgan, J.) (quoting Duncan v. City of Hammond, No. 08-5043, 2009 WL
10680059, at *1 (E.D. La. Mar. 31, 2009) (Vance, J.) (holding that an individual is not
a managing agent when they cannot bind the corporation in a contract, hire or fire
employees, or exercise executive responsibilities on behalf of the corporation)) A
“managing agent” cannot be someone who is only involved in one aspect of the
defendant’s business. Id. at 460.
24 Ochsner fails to affirmatively assert that it is a limited liability company. Ochsner
applies federal and state laws for service of process on a corporation in its motion to
dismiss. However, because Ochsner, as defined herein on page 1 of this order and
reasons, is registered as a limited liability company with the Louisiana Secretary of
State, its only officer is listed as “Pete November,” and its only registered agent for
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authorized to receive service of process refers who a party who has been designated
by an organization to receive process on its behalf. See T.D. Auto Fin., LLC v. Higgs,
417 So.3d 790, 793–94 (La. Ct. App. 2025) (“Louisiana law prescribes that, if the LLC
has a designated agent for service of process, the LLC can be properly served by
personal service on any one of its agents designated for service of process.”).
Pursuant to Rule 4(m), “[i]f 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.” “But if the
plaintiff shows good cause for the failure, the court must extend the time for service
for an appropriate period.” F ED. R. CIV. P. 4(m). “To establish good cause, a plaintiff
bears the burden of demonstrating ‘at least as much as would be required to show
excusable neglect.’” Sims v. Landrieu Concrete & Cement Indus. LLC, No. 18-9932,
2020 WL 2617867, at *2 (E.D. La. May 24, 2020) (Milazzo, J.) (quoting Winters v.
Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985)). “[S]imple
inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.”
Id. (quoting Winters, 776 F.2d at 1306).
service of process is listed as “CT Corporation,” the Court will take judicial notice of
these facts. Thomas v. New Leaders for New Schools, 278 F.R.D. 347, 349 n. 5 (E.D.
La. 2011) (Africk, J.) (taking judicial notice of an organization’s registration on the
Louisiana Secretary of State’s website to decide a motion to dismiss for improper
service of process); Fed. R. Evid. 201(c); Norris v. Hearst Trust, 500 F.3d 454, 461 n.
9 (5th Cir. 2007) (“[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial
notice of matters of public record.”) (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6
(5th Cir. 1994)). The Court held a telephone status conference with counsel for
Ochsner on November 3, 2025, during which counsel for Ochsner confirmed the fact
that Ochsner is an LLC for present purposes.
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III. 	ANALYSIS
At the outset, the Court finds that defendant’s Rule 12(b)(4) motion is better
construed as a motion pursuant to Rule 12(b)(5). See Baton Rouge Total Care Ctr.,
2014 WL 5794995, at *1. This is because defendant does not challenge the form of the
process and does not argue that plaintiff failed to comply with Rule 4(b).25 See id.
Instead, plaintiff challenges “the mode of delivery or the lack of delivery of the
summons and complaint,” for which Rule 12(b)(5) is the “proper vehicle.” Id.; see also
Raburn, 2010 WL 743933, at *1. Accordingly, the Court will evaluate defendant’s
arguments regarding service of process pursuant to Rule 12(b)(5).
The record shows that service was made on “Judy Dilbert.”26 Judy Dilbert is
not Ochsner’s registered agent for service of process.27 Ochsner’s registered agent for
service of process is CT Corporation.28 Nor is Judy Dilbert listed as a managing agent
or an officer of Ochsner.29 Cf. Ganpat, 434 F.Supp.3d at 458–61; Benson v. Fam.
Health Ctr., 339 F.App’x 486, 487–88 (5th Cir. 2009) (holding that service of process
upon an individual who was not a corporate officer and did not maintain significant
managerial authority within the corporation did not satisfy the requirement that
plaintiff serve an officer, managing agent, or authorized agent of the corporation and
service of process was therefore insufficient).
25 See generally R. Doc. No. 23-1.
26 Id.
27 R. Doc. No. 23 at 5.
28 Id.
29 Id.
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As stated, Ochsner is a limited liability company incorporated under the laws
of the State of Louisiana. Therefore, to properly serve Ochsner with process under
federal law, plaintiff was required to serve Ochsner through its registered agent for
service of process, CT Corporation, its corporate officer Pete November, or a managing
agent of Ochsner—someone with the power to exercise executive authority on behalf
of Ochsner.30 F ED. R. CIV. P. 4(h); see Ganpat, 434 F.Supp.3d at 458–61. Plaintiff has
provided no evidence that Judy Dilbert meets any of these criteria.31 To properly
serve Ochsner with process pursuant to Louisiana law, plaintiff was required to serve
CT Corporation, Ochsner’s designated agent for service of process.32 L A. CODE CIV. P.
art. 1266(A). Plaintiff failed to do so.33
By failing to file a response to Ochsner’s motion to dismiss, plaintiff has failed
to show “good cause” that would excuse his failure to properly serve process upon
Ochsner. F ED. R. CIV . P. 4(m); see also Sims, 2020 WL 2617867, at *2. Plaintiff’s
claims against Ochsner, therefore, are appropriately dismissed without prejudice
pursuant to Rule 12(b)(5).34
Accordingly,
30 Id. at 5.
31 See generally R. Doc. No. 1.
32 R. Doc. No. 23 at 5.
33 R. Doc. No. 9 at 1.
34 Because the Court finds that dismissal of plaintiff’s claims pursuant to Rule
12(b)(5) 	is 	appropriate, 	the 	Court 	will 	not 	address 	defendant’s 	arguments 	for
dismissal pursuant to Rule 12(b)(6).
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IT 	IS 	ORDERED 	that 	Ochsner’s 	unopposed 	motion35 	to 	dismiss 	is
GRANTED. Plaintiff’s claims against Ochsner are hereby DISMISSED WITHOUT
PREJUDICE.
New Orleans, Louisiana, November 3, 2025.
_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
35 R. Doc. No. 23.
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