Case Law

Originally Filed in: Louisiana (Federal)

Decided by: Louisiana Western District Court (Federal)

Court: United States District Court for the Western District of Louisiana

Judge: Judge Doherty

Citation: 2010 WL 1054862 (WD LA 2010)

Background:
Pending before this Court is a motion to reurge a previously filed motion to dismiss plaintiff’s claims under FED R. Civ. P. 12(b)(2) for lack of personal jurisdiction and 12(b)(5); insufficient service of process and 12(b)(6) failure to state a claim for which relief can be granted.

Plaintiff, Thuy Hoa (administrator of the estate of the deceased) filed a complaint in then Western District of Louisiana alleging that Mai Nguyen, the deceased, was working as a crew member aboard the F/V Bao Ngoc, when he allegedly became entangled in a shrimping net and fell overboard. Mai’s body was never recovered and he has been presumed deceased.

The fishing vessel was owned and manned by defendants, Phan Nguyen and Van Ha.

Hoa brought this action against defendants for negligence under the Jones Act and unseaworthiness. Hoa has been unable to serve defendants since the commencement of the suit on June 2, 2006.

It has been approximately 3.5 years since the suit was filed and 6.5 years since the incident occurred and neither defendants had been served.

Following dismissal with prejudice, Judge Fallon vacated his order of dismissal and reopened the case allowing Hoa to serve defendants within 30 days.

Defendants then filed a motion reurge the Court to dismiss Hoa’s action for want of subject matter jurisdiction and failure of timely service.

Issues:
Did this Court affirm the original ruling of dismissal for prejudice?

Held:
In a brief holding, this Court dismissed Hoa’s claim without prejudice for failure to serve defendants. This Court based its holding upon finding that it had been more than 1 year and 1 month since the Court entered the foregoing judgment and that the defendants had not been served, even after allowing Hoa an additional (30) days following the vacating of the original dismissal.

Comments:
While this Court dismissed “without prejudice” it did so under Rule of Fed. Civ. Proc. 4(m). In this matter the Court treated the dismissal with prejudice for all intents and purposes, as the claims against the defendants were prescribed and cannot be refiled.

Steve Gordon