                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                           F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                           October 18, 2005
                                FOR THE FIFTH CIRCUIT
                                                                                       Charles R. Fulbruge III
                                    _________________________                                  Clerk
                                           No. 05-30491
                                         Summary Calendar
                                    _________________________

SAL CIOLINO & ASSOCIATES,

                                                                                    Plaintiff-Appellant,

versus

FIRST EXTENDED SERVICE CORPORATION,

                                                                                   Defendant-Appellee.

                          ________________________________________

                            Appeal from the United States District Court
                               For the Eastern District of Louisiana
                                      (No. 02:04-CV-3360)
                          ________________________________________

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

         In this diversity action, plaintiff appeals from the district court’s dismissal pursuant to FED.

R. CIV. PROC. 12(b)(5). We affirm.

                                 I. FACTS AND PROCEEDINGS

         On August 3, 2004, Sal Ciolino & Associates (“Ciolino”), a Louisiana corporation, filed suit

in a Louisiana court against First Extended Service Corporation (“FESC”), a Texas corporation.


         *
         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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.


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Subsequent to intra-party communications regarding settlement, Ciolino requested service upon

FESC on November 19, 2004. The time between Ciolino’s filing and service request was 108 days.

FESC removed the case to the Eastern District of Louisiana and then moved to dismiss the action

pursuant to FED. R. CIV. PROC. 12(b)(5) and LA. CODE CIV. PROC. art. 1201(C). Ciolino opposed

the motion and asserted good cause for the delay in service. The district court agreed with FESC and

dismissed the action.1 Ciolino now appeals.

                                   II. STANDARD OF REVIEW

        A trial court’s dismissal for failure to request timely service may be reversed only if the district

court committed manifest error. See, e.g., Johnson v. Brown, 2003-0679, p. 2 (La. App. 4 Cir.

6/25/03); 851 So. 2d 319, 322.

                                          III. DISCUSSION

        Very little is in dispute in this case. The parties agree that Louisiana law applies in this

instance. See Freight Terminals, Inc. v. Ryder Sys., Inc., 461 F.2d 1046, 1052 (5th Cir. 1972)

(holding that State law determines whether service was properly made prior to removal). Louisiana

law allows a plaintiff ninety days from the time of filing a petition to request service on all defendants.




        1
         After FESC’s motion to dismiss had been filed with the district court, Ciolino brought two
additional suits against FESC and additional defendants in Louisiana courts. FESC also removed
these suits to the Eastern District of Louisiana. The district court consolidated these additional cases,
no. 05-CV-0251 and no. 05-CV-0252, with the original case, no. 04-CV-3360. R. at 84.
        In an order under a caption bearing all of the consolidated cases’ numbers, the district court
purported to dismiss “the matter” without prejudice. R. at 109. However, FESC had not filed a
motion to dismiss with respect to the later two cases. By order dated August 4, 2005, this Court
remanded the latter two cases, no. 05-CV-0251 and no. 05-CV-0252, to the district court. Only the
dismissal of the original case, no. 04-CV-3360, is at issue today.

                                                    -2-
See LA. CODE CIV. PROC. art. 1201(C).2 If service is not requested within the period provided, a

court is required to render a judgment of dismissal without prejudice in favor of any defendant who

has not been timely served. See LA. CODE CIV. PROC. art. 1672(C).3

       Under Louisiana law, a court must dismiss unless (1) the defendant expressly waives service

by written waiver, see LA. CODE CIV. PROC. art. 1201(C), or (2) “good cause is shown why service

could not be requested,” LA. CODE CIV. PROC. art. 1672(C). If the plaintiff shows good cause, “the

court may order that service be effected within a specified time.” Id. See generally Clark v. State

Farm Mut. Auto. Ins. Co., 2000-3010, p. 10 n.14 (La. 5/15/01); 785 So. 2d 779, 786 n.14 (La.

2001) (discussing the interplay of articles 1201(C) and 1672(C) with respect to service). In addition,

Louisiana, as a matter of policy, commands strict adherence to articles 1201(C) and 1672(C). See

Johnson, p. 10, 851 So. 2d at 326.

       On the essential fact, the parties agree. One hundred and eight days passed between the time

Ciolino filed suit in State court and the time Ciolino requested service. Because the ninety day period

had expired, under the procedure established in Louisiana, Ciolino must have either obtained an



       2
        La. Code Civ. Proc. art. 1201(C) provides, in part:
              Service of the citation shall be requested on all named defendants
              within ninety days of commencement of the action. ... The defendant
              may expressly waive the requirements of this Paragraph by any written
              waiver.
       3
        LA. CODE CIV. PROC. art. 1672(C) provides:
              A judgment dismissing an action without prejudice shall be rendered
              as to a person named as a defendant for whom service has not been
              requested within the time prescribed by Article 1201(C), upon
              contradictory motion of that person or any party or upon the court's
              own motion, unless good cause is shown why service could not be
              requested, in which case the court may order that service be effected
              within a specified time.

                                                 -3-
express waiver or made a showing of good cause as to why service could not be requested. Ciolino

does not contend, nor could it, that FESC expressly waived service. Rather, Ciolino maintains that

its delay should be countenanced because, in its view, good cause existed for the delay. We do not

agree.

         According to Ciolino, its delay in requesting service stems from efforts to pursue alternative

dispute resolution (“ADR”) avenues, including settlement negotiations. Ciolino believes that, because

of courts’ preference for ADR, its pursuit of settlement negotiations constitutes good cause under

Louisiana jurisprudence. The parties agree that they participated in some communication around the

time the suit was filed and before service was requested. However, the degree and context of the

communications is presented differently by the parties. We assume, as Ciolino asserts, that Ciolino’s

delay resulted from anticipation of communication from FESC relating to settlement.

         We can make this assumption because, whatever responsibility litigants have to participate

in ADR, that responsibility does not relieve a plaintiff of its obligation to request service within the

time allotted under Louisiana law. As the Louisiana Supreme Court held, in co nstruing a similar

ninety day service period:

                the fact that defendants have knowledge of the pending suit does not
                satisfy plaintiff's obligation to request service within ninety days of the
                filing of a suit.... Moreover, ... it is not reasonable to believe, in light
                of the mandatory language contained in the Act, that ongoing
                settlement negotiations absolve a litigant of his responsibility to
                comply with its requirements.

Naquin v.Titan Indem. Co., 2000-1585, p. 9, (La. 2/21/01); 779 So.2d 704, 710 (discussing LA. REV.

STAT. § 13:5107 (service on State officials)). See also Johnson, p. 8-11, 851 So. 2d at 325-26

(applying the Naquin analysis to articles 1201(C) and 1672(C)).



                                                   -4-
        In Johnson, a case that involved significantly more negotiation than was present here, the

court held that under section 1672, “negotiations ... did not constitute ‘good cause’ and did not

absolve the plaintiff of his responsibility to request service of process within ninety days of filing the

lawsuit.” Johnson, p. 10–11, 851 So. 2d at 326. See also Taylor v. LSU Medical Ctr., 2004-38,944,

p. 8 (La. App. 2 Cir. 10/14/04); 892 So. 2d 581, 586 (holding attorney communications insignificant

as to “good cause”); Johnson v. Reg’l Transit Auth., 2000-2647, p. 4–5 (La. App. 4 Cir. 4/18/01);

785 So. 2d 1015, 1117–18 (holding expectation of settlement not “good cause”). We do not deviate

from this settled principle. Under Louisiana law, negotiations between the parties do not relieve the

plaintiff of its obligation to request timely service.

                                         IV. CONCLUSION

        Because the district court did not err in dismissing the case, we AFFIRM.




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