Smith v. North Texas Maintenance, Inc. et al

Filing 10

MEMORANDUM OPINION AND ORDER re 9 First MOTION for Reconsideration of Motion for Alternative Service filed by Kenneth Smith. ORDERED that Plaintiff's Motion to Reconsider Motion for Alternative Service (the Motion to Reconsider) (Dkt. 9) is GRANTED. Signed by Magistrate Judge Kimberly C Priest Johnson on 12/29/2017. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
KENNETH SMITH, ON BEHALF OF
HIMSELF AND ALL OTHERS
SIMILARLY SITUATED,
Plaintiff,
v.
NORTH TEXAS MAINTENANCE,
INC., A.L. HELMCAMP, INC. AND
CLINT HEMBY, INDIVIDUALLY,
Defendants.

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No. 4:17CV641-ALM-KPJ

MEMORANDUM OPINION AN ORDER
Before the Court is Plaintiff’s Motion to Reconsider Motion for Alternative Service (the
“Motion to Reconsider”) (Dkt. 9). As set forth below, the Court finds the Motion to Reconsider
(Dkt. 9) is GRANTED.
I.

BACKGROUND

On November 29, 2017, Plaintiff filed a Motion for Alternative Service of Process (the
“First Motion”) (Dkt. 7), which the Court granted in part and denied in part. See Dkt. 8. The Court
allowed service on Defendants North Texas Maintenance, Inc. (“NTMI”) and Defendant Clint
Hemby (“Hemby”) by leaving a copy of the complaint and summons with any individual appearing
to be over the age of eighteen years who was present at 415 Private Road 206, Bonham, Texas,
75418. See id. However, based on the information before it at the time, the Court declined to allow
Plaintiff to serve Defendants NTMI and Hemby by posting the complaint and summons on the
front entrance of 415 Private Road 206, Bonham, Texas, 75418. See id.
NTMI is a corporation organized under the laws of Texas, and is thus required to register
with the Texas Secretary of State. The corporate address listed for NTMI is 415 Private Road 206,

Bonham, Texas, 75418 (the “Private Road 206 Address”). See Dkt. 7. Hemby is listed as NTMI’s
registered agent for service of process with an address of 4321 CR 2610, Bonham, Texas, 75418
(the “CR 2610 Address”). According to the record, the CR 2610 Address appears to have been
abandoned. See Dkts. 7, 7-1, and 9-1.
The record in this case indicates that Plaintiff retained Robert L. Crow (“Crow”), a private
process server, to effect service on Defendants NTMI and Hemby. Plaintiff’s First Motion (Dkt.
7), supported by Crow’s declaration (Dkts. 7-1 and 9-1), avers that Plaintiff has made multiple
attempts to effect service on NTMI and Hemby. Crow made seven attempts to serve process,
including two attempts to serve Hemby, as NTMI’s registered agent, at the CR 2610 Address and
five additional attempts to serve process at the Private Road 206 Address. Crow observed that
vehicles at the Private Road 206 Address are registered to NTMI and/or Hemby. See Dkt. 9-1.
Crow also confirmed that Hemby is the owner of the Private Road 206 Address. See id. Crow’s
declaration also notes that the Private Road 206 Address has no close-by neighbors with whom to
verify residency. Id.
Following the Court’s Order dated December 7, 2017, Plaintiff hired another private
process server, Byron Mitchell (“Mitchell). See Dkt. 9. According to Mitchell’s declaration (Dkt.
9-2), no one answered the door after he attempted to serve process four different times at the
Private Road 206 Address. See id. Plaintiff now files the present Motion for Reconsideration
seeking to allow service of the complaint and summons for Defendants NTMI and Hemby by
posting on the front entrance of the Private Road 206 Address. See Dkt. 9.
II.

LEGAL STANDARD

Insufficient process and insufficient service of process implicate a court’s authority to
exercise personal jurisdiction over a defendant. Murphy Bros., Inc. v. Michetti Pipe Stringing,

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Inc., 526 U.S. 344, 350 (1999) (“Before a . . . court may exercise personal jurisdiction over a
defendant, the procedural requirement of service of summons must be satisfied.”).
Rule 4 of the Federal Rules of Civil Procedure sets forth the guidelines to determine what
constitutes valid service of process. FED. R. CIV. P. 4. Under Rule 4(e)(2), an individual (such as
Defendant Hemby) may be served by:
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual
personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode
with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law
to receive service of process.
FED. R. CIV. P. 4(e)(2).
Rule 4(h) provides for service upon a corporation, partnership, or association (such as
Defendant NTMI):
Unless federal law provides otherwise or the defendant’s waiver has been filed, a
domestic or foreign corporation, or a partnership or other unincorporated
association that is subject to suit under a common name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual or
(B) by delivering a copy of the summons and of the complaint to an officer, a
managing or general agent, or any other agent authorized by appointment
or by law to receive service of process and—if the agent is one authorized
by statute and the statute so requires—by also mailing a copy of each to the
defendant; . . .
FED. R. CIV. P. 4(h)(1).
In addition to service as prescribed under the Federal Rules, Rule 4(h)(1) allows service of
process to be effectuated in accordance with Rule 4(e)(1), which states that service of process may

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be made “following state law for serving summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made.” FED. R. CIV.
P . 4(e)(1). Rule 106(a) of the Texas Rules of Civil Procedure states that service of process may
be effected by personal service upon the defendant or by mailing the service documents to the
defendant by certified mail, return receipt requested. Tex.R. Civ. P. 106(a). Rule 106(b) reads that
if either of the two aforementioned methods are unsuccessful:
Upon motion supported by affidavit stating 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 stating specifically the facts showing that service has been
attempted under [either method in Rule 106(a) ] at the location named in such
affidavit but has not been successful, the court may authorize service
(1) by leaving a true copy of the citation, with a copy of the petition attached, with
anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows
will be reasonably effective to give the defendant notice of the suit.
TEX. R. CIV. P. 106(b).
Further, the affidavit must state specifically the facts showing that service has been
attempted. Wilson v. Dunn, 800 S.W.2d 833, 834 (citing TEX. R. CIV. P. 106(b). The Texas
Supreme Court has held unequivocally that “substitute service is not authorized under Rule 106(b)
without an affidavit which meets the requirements of the rule demonstrating the necessity for other
than personal service.” Id. at 836.
III.

ANALYSIS

Here, Plaintiff demonstrates diligent—if not extraordinary—effort to serve Defendants
NTMI and Hemby. Plaintiff has submitted evidence establishing that both Defendant NTMI and
Defendant Hemby are associated with the Private Road 206 Address. Crow observed that vehicles
at the Private Road Address are registered to NTMI and/or Hemby and that Hemby is the owner
of the property. See Dkt. 9-1. Furthermore, the Private Road 206 Address is listed with the Texas
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Secretary of State as NTMI’s corporate address. A corporation has a responsibility to notify the
Secretary of State of any change of registered agent or address. See Little v. D & D Helping Others,
Inc., 2008 WL 4525398, at *3 (S.D.Tex. 2008) (citing TEX. BUS. ORG. CODE §§ 5.201-02)); see
also K & M Tools, Inc. v. Bencon Mgt. & Gen. Contracting Corp., 1997 WL 605097, at *4 (Tex.
App.—Houston 1997, pet denied). Based on the record here, NTMI’s file with the Texas Secretary
of State is not up to date (as required by law), since the CR 2610 Address listed as the address for
NTMI’s registered agent, appears to have been abandoned. See Dkt. 9-1.
Plaintiff’s First Motion, along with the declarations of Crow and Mitchell, sufficiently
describes their multiple attempts to serve Defendants NTMI and Hemby. Crow and Mitchell
describe the dates and times of attempted service and also note that even though there were vehicles
in the driveway and people inside the house, no one would come to the door. See Dkts. 9-1 and 92. Crow and Mitchell left their cards on multiple occasions and found those cards gone when they
returned for subsequent service attempts. Id. These facts lead to the inevitable conclusion that
Hemby is deliberately avoiding service of process, and it is unlikely that a person could leave a
copy of the summons and complaint with any person over the age of eighteen at the Private Road
206 Address.
Based on the foregoing, the Court finds that service cannot be executed in accordance with
Rule 106(b)(1). The Court will therefore order service in a manner that the record shows will be
reasonably effective to give Defendants NTMI and Hemby notice of the suit. See TEX. R. CIV. P.
106(b)(2); La Cantera Dev. Co. v. W. Rim Prop. Servs., 2010 WL 417409, at *4 (W.D. Tex. Jan.
29, 2010) (service allowed by posting summons and complaint to the front door of defendants’
headquarters after attempting service multiple times and being told the registered agent wasn’t in
the office and that the defendants would not accept service from private process servers);

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Evergreen Nat’l Indemnity Co. v. Herndon, 2007 WL 2827978, (N.D. Tex. 2007) (service allowed
by posting summons and complaint to the front gate of defendant’s residence after attempting
personal service multiple times). See also Hurst v. Ardoin, Inc., CA No. 2:15-cv-386 (S.D. Tex.
Jan. 1, 2016) (N. Ramos) (service allowed by posting summons and complaint after attempting in
person service multiple times); Henson-Gibson v. Spring Branch SNF, LLC, CA No. 4:17-cv-1654
(S.D. Tex. Sept. 27, 2017) (A. Bennett) (same).1
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reconsider Motion for
Alternative Service (the “Motion to Reconsider”) (Dkt. 9) is GRANTED.
IT IS FURTHER ORDERED that Defendants NTMI and Hemby may be served by any
person who is at least eighteen years old and not a party to the suit, pursuant to Rule 4(c)(2), with
service of process in this case by:
(a) affixing the summons and complaint, together with a copy of this Memorandum
Opinion and Order, to the front entrance of 415 Private Road 206, Bonham, Texas, 75418; AND
(b) mailing copies of the summons and complaint, together with a copy of this
Memorandum Opinion and Order by certified mail, return receipt requested, addressed to Clint
Hemby, as Defendant’s registered agent, at his address of record with the Texas Secretary of State,
4321 CR 2610, Bonham, Texas, 75418; AND
(c) mailing copies of the summons and complaint, together with a copy of this
Memorandum Opinion and Order by certified mail, return receipt requested, to Defendant’s
corporate address of record with the Texas Secretary of State, 4321 CR 2610, Bonham, Texas,
75418 ; AND

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Copies of these were presented to the Court by Plaintiff, and the Court finds them sufficiently persuasive.
See Dkts. 9-3 and 9-4.

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(d) mailing copies of the summons and complaint, together with a copy of this
Memorandum Opinion and Order by certified mail, return receipt requested, addressed to Clint
Hemby, individually, at 4321 CR 2610, Bonham, Texas, 75418.
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IT IS FURTHER ORDERED that the foregoing substitute service methods shall not be
considered exclusive and that service of a copy of the summons and complaint may be effected by
other means authorized by Rule 4 of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.
SIGNED this 29th day of December, 2017.
.

____________________________________
KIMBERLY C. PRIEST JOHNSON
UNITED STATES MAGISTRATE JUDGE

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