Iron Workers St. Louis District Council Pension Trust Fund et al v. Scroggins Construction, LLC

Filing 12

MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that plaintiffs' motion to authorize service by posting pursuant to Rule 106 of the Texas Rules of Civil Procedure is GRANTED. [Doc. 8] IT IS FURTHER ORDERED that plaintiffs may effectuate service of defendant by posting a copy of the summons and complaint on the front door of its owner's residence, at 737 Cherry Blossom Lane, Allen, Texas 75002.. Signed by District Judge Charles A. Shaw on 1/25/2017. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

IRON WORKERS ST. LOUIS DISTRICT
COUNCIL PENSION TRUST FUND, et al.,
Plaintiffs,
v.
SCROGGINS CONSTRUCTION, LLC,
Defendant.

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No. 4:16-CV-1735 CAS

MEMORANDUM AND ORDER
This is an action under the Employee Retirement Income Security Act (“ERISA”), 29
U.S.C. § 1132, to collect delinquent fringe benefit contributions. Defendant is now located in
Texas. Plaintiffs request that the Court authorize plaintiffs to serve the lawsuit upon defendant by
posting the summons and complaint at defendant’s owner’s residence pursuant to the Texas Rules
of Civil Procedure.
Federal Rule of Civil Procedure 4(h) states that a corporation may be served in the same
manner as an individual pursuant to Rule 4(e)(1). Rule 4(e)(1), in turn, states that service may be
made “following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made.”
Texas Rule of Civil Procedure 106 allows a trial court to sign an order authorizing a
substitute method of service of process, provided the plaintiff files a motion supported by proper
affidavit. Tex. R. Civ. P. 106(b); Wilson v. Dunn, 800 S.W.2d 833, 834 (Tex. 1990). The
supporting affidavit must state (1) the location of the defendant’s usual place of business or usual
place of abode or other place where the defendant can probably be found; and (2) the specific
facts showing that traditional service at the location named in such affidavit has been attempted,

but has not been successful. Brown Consulting & Assocs., Inc. v. Smith, 2013 WL 2316615, at
*1 (Tex. App. May 28, 2013).
Service by posting summons and complaint at a defendant’s address is appropriate
pursuant to Texas Rule of Civil Procedure 106. See, e.g., Perez v. Old W. Capital Co., 411
S.W.3d 66, 73 (Tex. App. 2013) (“Clearly, Jackson complied with the court’s Rule 106 order by
attaching the citation ‘securely to the front door or entry way.’”); Mixon v. Nelson, 2016 WL
4429936, at *3 (Tex. App. Aug. 19, 2016) (“It is undisputed that the process server’s Affidavit of
Service stated that substituted service was accomplished under Rule 106 by posting the citation
and petition to the front door of the property at 116 Cave Circle.”).
Plaintiffs’ process server has made numerous attempts to serve defendant at its owner’s
residential address, 737 Cherry Blossom Lane, Allen, Texas 75002. During some of these attempts,
a truck registered under defendant’s owner’s name was present in the driveway. Plaintiffs’ process
server has attempted to arrange service with defendant’s owner’s wife.

However, all of these

attempts have been unsuccessful. Plaintiffs have provided an affidavit which identifies defendant’s
owner’s address and their unsuccessful attempts at traditional service. Therefore, this Court finds
that plaintiffs may serve defendant through posting pursuant to the Texas Rules of Civil Procedure.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion to authorize service by posting
pursuant to Rule 106 of the Texas Rules of Civil Procedure is GRANTED. [Doc. 8]

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IT IS FURTHER ORDERED that plaintiffs may effectuate service of defendant by
posting a copy of the summons and complaint on the front door of its owner’s residence, at 737
Cherry Blossom Lane, Allen, Texas 75002.
SO ORDERED:

____________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 25th day of January, 2017.

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