Edwards v. Rogow et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CYNTHIA EDWARDS 	CIVIL ACTION
VERSUS 	NO: 25-2179
MICHELLE ROGOW ET AL. 	SECTION “H”
ORDER AND REASONS
Before the Court is Defendant Michelle Rogow’s Motion to Dismiss, or in
the Alternative, Quash Insufficient Service (Doc. 19). 	For the following
reasons, the Motion is GRANTED.
BACKGROUND
Plaintiff Cynthia Edwards was present when a companion, Gail Kelley,
allegedly sustained physical injuries in a fall at a vacation rental property.
Kelley subsequently brought a claim for personal injuries in state court against
the home’s owner, Defendant Michelle Rogow. In the course of that litigation,
oral communications and video recordings of Kelley and Edwards intercepted
while they stayed at the home were filed into the public record. This matter
arises out of that disclosure. On October 22, 2025, Edwards brought claims in
this 	Court 	under 	the 	Louisiana 	Electronic 	Surveillance 	Act, 	the 	Federal
Electronic Communications Privacy Act, and Louisiana Revised Statutes §
21:61 against Rogow and others.
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Now before the Court is Defendant Rogow’s Motion to Dismiss for
insufficient service of process pursuant to Federal Rule of Civil Procedure
12(b)(5), or in the alternative, to quash insufficient service. Plaintiff opposes.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of an
action for “insufficient service of process.”1 A Rule 12(b)(5) challenge contests
the manner in which process was served.2 “[O]nce the validity of service of
process has been contested, the plaintiff bears the burden of establishing its
validity.”3 That said, “if the plaintiff meets the burden of showing proper
service,” such as a signed return of service, “the burden shifts to the defendant
to present strong and convincing proof of insufficient service.”4 In ruling on a
Rule 12(b)(5) motion, district courts enjoy broad discretion.5
LAW AND ANALYSIS
Defendant Rogow alleges that Plaintiff has failed to effect proper service
on her. Federal Rule of Civil Procedure Rule 4(e) provides that service may be
effected on an individual defendant by (1) following the procedural methods of
service 	provided 	by 	the 	state 	in 	which 	the 	district 	court 	is 	located, 	(2)
“delivering a copy of the summons and of the complaint to the individual
1 FED. R. CIV. P. 12(b)(5).
2 Id.
3 Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992).
4 Windecker v. Hang Wei, No. 1:18-CV-00898-LY, 2020 WL 248689, at *1 (W.D. Tex.
Jan. 16, 2020), report and recommendation adopted, No. 1:18-CV-898-LY, 2020 WL 10058228
(W.D. Tex. Jan. 31, 2020) (citing People’s United Equip. Fin. Corp. v. Hartmann, 447 F. App'x
522, 524 (5th Cir. 2011)).
5 Henderson v. Republic of Texas, 672 F. App’x 383, 384 (5th Cir. 2016).
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personally,” (3) “leaving a copy of each at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion who resides there,”
or (4) “delivering a copy of each to an agent authorized by appointment or by
law to receive service of process.” Plaintiff attempted service by the third
method.
A return of service was filed into the record in this action indicating that
summons for Defendant Rogow was left at her residence, listed as 3131–3133
Royal Street, on January 18, 2026 with Athina Morris, a person of suitable age
and discretion who resides there. Defendant argues that this service was
improper because Athina Morris is her neighbor who resides at 3133 Royal
Street, and Defendant resides at 3131 Royal Street. Accordingly, the Court is
tasked with determining which address is Defendant’s “dwelling or usual place
of abode.”6 “The cases discussing whether a place may be classified as a
dwelling house or usual place of abode are highly fact-specific.”7
Here, Defendant presents the following facts in support of her argument
that service was improper. It is undisputed that 3131 and 3133 Royal Street
are 	a 	duplex 	owned 	by 	Defendant 	Rogow. 	Defendant 	Rogow 	testified 	in
November 2023 in connection with the related state court lawsuit that she lives
at 3131 Royal Street and that 3133 Royal Street is leased to a long-term tenant.
Defendant also presents an affidavit from Atina Morris in which she attests
that she resides at 3133 Royal Street and is a tenant of Defendant Rogow. She
6 FED. R. CIV. P. 4(e)(2)(B).
7 Kudu Co., Ltd v. Latimer, No. 4:10CV680, 2011 WL 938349, at *4 (E.D. Tex. Feb. 22,
2011), report and recommendation adopted sub nom. Kudu Co. v. Latimer, No. 4:10CV680,
2011 WL 933717 (E.D. Tex. Mar. 16, 2011).
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attests that Rogow has never lived or resided at 3133 Royal Street with her. In
response, Plaintiff presents only the fact that Defendant claimed 3133 Royal
Street as her homestead exemption for the years of 2024, 2025, and 2026.
However, even the proof that Plaintiff provides on this point from the Orleans
Parish assessor lists Defendant Rogow as “owner” of 3133 Royal Street and
lists her address as 3131 Royal Street. Accordingly, the evidence weighs
heavily in favor of a finding that Defendant Rogow’s residence is 3131 Royal
Street. Defendant has carried her burden to provide strong and convincing
proof that service was improper on her neighbor Atina Morris at 3133 Royal
Street. Plaintiff has therefore not complied with any of the options for service
delineated by Rule 4(e) in serving Defendant.
Because 	Plaintiff’s 	attempt 	at 	service 	was 	insufficient, 	her 	claims
against Defendant Rogow are subject to dismissal. Rule 4(m) of the Federal
Rules provides as follows:
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. But
if the plaintiff shows good cause for the failure, the
court 	must 	extend 	the 	time 	for 	service 	for 	an
appropriate period.8
“To establish good cause, a litigant must demonstrate at least as much as
would be required to show excusable neglect, as to which simple inadvertence
or mistake of counsel or ignorance of the rules usually does not suffice.”9 Even
8 FED. R. CIV. P. 4(m).
9 Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990)
(internal quotation omitted).
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in the absence of good cause, however, the Court has discretion to extend the
time for service.10
Plaintiff has not shown that Defendant Rogow was properly served
within the 90-day period provided by Rule 4(m). Plaintiff’s failure to do so,
however, seems to have resulted from a good faith confusion about Plaintiff’s
address. 	Where, 	as 	here, 	“there 	is 	a 	‘reasonable 	prospect 	that 	plaintiff
ultimately will be able to serve defendant properly,’ the proper course of action
is to quash service and allow the plaintiff another opportunity to effectuate
service, as opposed to dismissing the case.”11 Accordingly, this Court will
exercise its discretion to extend the time for service.
CONCLUSION
For the foregoing reasons, the Motion is GRANTED, and Plaintiff shall
have 30 days from this Order to properly effect service on Defendant Rogow.
New Orleans, Louisiana this 24th day of March, 2026.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
10 Yarbrough v. Swift, No. 18-10093, 2019 WL 2027173, at *5 (E.D. La. May 8, 2019).
11 Williams v. Zordan, No. CV 21-1061, 2023 WL 6451111, at *7 (W.D. La. Sept. 29,
2023) (quoting 5B Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1354
(3d ed.)).
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