Evans v. State of Louisiana

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30545
Conference Calendar
WALTER EVANS, JR.,
Plaintiff-Appellant,
versus
STATE OF LOUISIANA, Etc; ET AL,
Defendants,
BARRON BUILDERS & MANAGEMENT CO.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 00-CV-92
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Walter Evans, Jr., appeals from the district court's Rule
12(b)(5) dismissal of his suit without prejudice against Barron
Builders and Management Company for ineffective service of
process. We review a district court's dismissal under Rule
12(b)(5) for abuse of discretion. See Lindsey v. United States
Railroad Retirement Board, 101 F.3d 444, 445 (5th Cir. 1996).
The record fails to show that Evans effected service of process
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-30545
-2-
upon "an officer, a managing or general agent" or "any other
agent authorized by appointment or by law to receive service of
process." Fed. R. Civ. P. 4(h)(1). The record also fails to
show that Evans complied with the state rules for service of
process upon a domestic corporation. See Fed. R. Civ. P.
4(e)(1); La. Code Civ. Proc. Ann. art. 1261. Service upon an
attorney representing Barron in separate state court litigation
is not effective service. See Fluor Eng'r and Constructors, Inc.
v. Southern Pacific Transp. Co., 753 F.2d 444, 449 n.7 (5th Cir.
1985).
Accordingly, the district court's judgment is AFFIRMED.