Kelley v. Rogow et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GAIL KELLEY 	CIVIL ACTION
VERSUS 	NO: 25-2031
MICHELLE ROGOW ET AL. 	SECTION “H”
ORDER AND REASONS
Before the Court is Defendants’ Motion to Dismiss, or in the Alternative,
Quash Insufficient Service (Doc. 14). For the following reasons, the Motion is
GRANTED IN PART.
BACKGROUND
Plaintiff Gail Kelley allegedly sustained physical injuries in a fall at a
vacation rental property, and she subsequently brought a claim for personal
injuries in state court against the home’s owner, Defendant Michelle Rogow.
Rogow is represented by Defendants Andrew Decoste, Derek Graves, and
Carleton Ketcham II in that litigation. In the course of that litigation, oral
communications and video recordings intercepted of Kelley while she stayed at
the home were filed into the public record. This matter arises out of that
disclosure. On September 29, 2025, Kelley brought claims in this Court under
the Louisiana Electronic Surveillance Act, the Federal Electronic
1
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Communications Privacy Act, and Louisiana Revised Statutes § 21:61 against
Rogow, Decoste, Graves, and Ketcham.1
Now before the Court is Defendants’ 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.”2 A Rule 12(b)(5) challenge contests
the manner in which process was served.3 “[O]nce the validity of service of
process has been contested, the plaintiff bears the burden of establishing its
validity.”4 In ruling on a Rule 12(b)(5) motion, district courts enjoy broad
discretion.5
LAW AND ANALYSIS
Defendants allege that Plaintiff has failed to effect proper service on any
Defendant. 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 personally,” (3) “leaving a copy
of each at the individual’s dwelling or usual place of abode with someone of
1 Plaintiff filed an amended complaint on October 20, 2025 after this Court ordered
her to adequately allege amount in controversy.
2 FED. R. CIV. P. 12(b)(5).
3 Id.
4 Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992).
5 Henderson v. Republic of Texas, 672 F. App’x 383, 384 (5th Cir. 2016).
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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.”
This Court will consider Plaintiff’s service on each of the Defendants.
A. Service on Defendants Decoste, Graves, and Ketcham
Plaintiff 	attempted 	service 	on 	Decoste, 	Graves, 	and 	Ketcham 	by
delivering the Summons and Complaint to a receptionist, Madison Robinson,
at the New Orleans location of their law office. Defendants state, and Plaintiff
has not shown otherwise, that Ms. Robinson is not authorized to receive service
on their behalf. Service on Decoste, Graves, and Ketcham was therefore made
at their office on an individual who was not authorized to receive service of
process on their behalf. Accordingly, Plaintiff has not complied with any of the
options 	for 	service 	delineated 	by 	Rule 	4(e) 	in 	serving 	these 	Defendants.
Plaintiff does not present evidence that any additional efforts to serve the
original complaint were made.6 Accordingly, service on Defendants Decoste,
Graves, and Ketcham was insufficient.
6 Plaintiff served Defendants with the Amended Complaint in the same fashion. While
service of subsequent pleadings may be appropriate in this fashion under Federal Rule of
Civil Procedure 5, “a party may not avail itself of the more relaxed standard under Rules
5(a)(1)(B) and 5(b) to effect proper service of an amended complaint unless the defendant has
appeared in the first instance.” Deutsche Bank Nat’l Tr. Co. as Tr. for Argent Sec. Inc., Asset-
Backed Pass-Through Certificates, Series 2006-W5 v. Morris, 350 F.R.D. 367, 369 (N.D. Tex.
2025). “[T]he plain language of Rule 5 indicates that it is the rule to govern amended
pleadings after Rule 4 service has been properly completed.” Arigna Tech. Ltd. v. Bayerische
Motoren Werke AG, 697 F. Supp. 3d 635, 643 (E.D. Tex. 2023).
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B. Service on Defendant Rogow
As to Defendant Rogow, Defendants allege that to the extent Plaintiff
attempted service on Rogow through her attorneys, they are not registered
agents for Rogow and therefore service on her was also insufficient.
In response, Plaintiff presents an incomplete server affidavit that she
contends proves that personal service was made on Rogow on October 7, 2025.
However, the proof of service provided by Plaintiff does not indicate a date of
service. Plaintiff attempts to remedy this deficiency by providing an invoice
from the process server that indicates that Rogow was personally served on
October 7, 2025. Rule 4, however, is explicit that proof of service “must be by
the 	server’s 	affidavit.”7 	Plaintiff 	has 	provided 	this 	Court 	with 	no 	law
suggesting that service can be proven by other evidence. Accordingly, Plaintiff
has not carried her burden to show that proper service was made on Rogow on
October 7, 2025.
Subsequent to the briefing filed in response to this Motion, Plaintiff filed
an additional proof of service regarding Rogow.8 Therein, the process server
affidavit indicates that Rogow was served with summons and the Amended
Complaint at her home on January 18, 2026. However, this service was made
well outside of the 90-day period for service provided by Rule 4(m), and no
7 FED. R. CIV. P. 4(l) (emphasis added).
8 Doc. 21.
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extension of time for service was sought.9 Accordingly, this service was also
insufficient.
C. Judicial Admission
In opposition to this Motion, Plaintiff argues that Defendants admitted
to proper service in their Motion for Extension of Time to Answer in which they
stated that they were served with the Amended Complaint on October 28,
2025. She contends that this statement is a binding judicial admission. But
Defendants did not admit that service was proper, and they did not waive their
objections to service. Objections to service of process are waived only if not
“raised in the answer or by motion before the filing of a responsive pleading.”10
Further, “[i]n the absence of valid service of process, proceedings against a
party are void.”11 Accordingly, this argument fails to establish proper service.
D. Good Cause
Because Plaintiff’s attempts at service were insufficient, her claims
against Defendants 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
9 The Complaint was filed on September 29, 2025, and therefore service was due by
December 28, 2025. The Amended Complaint did not restart the period provided by Rule
4(m). Bolden v. City of Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006) (stating that “period
provided by Rule 4(m) is not restarted by the filing of an amended complaint except as to
those defendants newly added in the amended complaint”); Lara v. Martinez, No. 2:25-01,
2025 WL 2825634, at *2 (W.D. Tex. Aug. 15, 2025), report and recommendation adopted, No.
DR:25-CV-00001-EG-MHW, 2025 WL 2825633 (W.D. Tex. Oct. 3, 2025) (“Amending a
complaint does not restart this time period.”).
10 Giannakos v. M/V Bravo Trader, 762 F.2d 1295, 1298 (5th Cir. 1985).
11 Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434,
435 (5th Cir. 1981).
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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.12
“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.”13 Even
in the absence of good cause, however, the Court has discretion to extend the
time for service.14
Plaintiff has not shown that any of the Defendants were properly served
within the 90-day period provided by Rule 4(m). Further, Plaintiff has not set
forth any basis for this Court to find good cause for her failure to properly serve
Defendants. Indeed, it appears that her failure was a result of ignorance of the
law. That said, 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.”15 Accordingly, this Court will
exercise its discretion to extend the time for service.
12 FED. R. CIV. P. 4(m).
13 Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990)
(internal quotation omitted).
14 Yarbrough v. Swift, Civil Action No. 18-10093, 2019 WL 2027173, at *5 (E.D. La.
May 8, 2019).
15 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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CONCLUSION
For the foregoing reasons, the Motion is GRANTED IN PART, and
Plaintiff shall have 30 days from this Order to properly effect service on
Defendants.
New Orleans, Louisiana this 2nd day of February, 2026.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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