Continental Casualty Company v. Swink Insurance Services LLC et al
Filing
10
MEMORANDUM OPINION AND ORDER granting 9 MOTION for Substituted Service filed by Plaintiff Continental Casualty Company. (Ordered by Chief Judge Sidney A Fitzwater on 10/6/2014) (Chief Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CONTINENTAL CASUALTY
COMPANY,
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§
§
Plaintiff,
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§ Civil Action No. 3:14-CV-3149-D
VS.
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SWINK INSURANCE SERVICES, LLC, §
et al.,
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Defendants. §
MEMORANDUM OPINION
AND ORDER
Plaintiff Continental Casualty Co. (“Continental”) moves to effect substituted service
of process on defendants Swink Insurance Services, LLC (“Swink Insurance”) and Richard
Swink (“Swink”). For the reasons that follow, the court grants the motion as set forth in this
memorandum opinion and order.
I
Continental filed this lawsuit on September 3, 2014. It has attempted to personally
serve Swink—who is also the sole registered agent for service of process for Swink
Insurance—four times between September 5 and September 26. Continental has also
attempted service by certified mail, return receipt requested, at both Swink’s office and
residence.
Two individuals—James Joseph Boteler, Esquire (“Boteler”), who is
Continental’s attorney of record, and George W. Weis (“Weis”), a delivery service
employee—have filed affidavits detailing their attempts to serve Swink at his office and
residence (Boteler by mail and Weis in person).
According to Weis, on September 5, 2014 he attempted unsuccessfully to serve Swink
at his residence. Thereafter, he spoke with Swink by telephone and made an appointment
to meet Swink at his residence on September 12, 2014 at 10:00 a.m.
On September 12, at 9:58 a.m., Weis arrived at the residence. He periodically
knocked on the door and rang the doorbell for five minutes, but no one answered the door.
Swink did not contact Weis to reschedule a time to accept service.
On September 23, 2014, at approximately 7:35 p.m., Weis again attempted to serve
Swink at his residence. An unidentified adult female answered the door, confirmed that
Swink resided at the address, and stated that he was not at home. Weis served the
unidentified adult female with the summons and complaint for Swink individually, and he
left his business card.
Soon after the attempted service on September 23, Swink telephoned Weis. Swink
stated that he was in New York, and asked Weis to mail the papers to him in New York
within the next two days, and identified the adult female as his maid.
Weis also attempted to serve Swink personally on September 26, 2014, although his
affidavit does not provide details regarding this attempted service.
Boteler avers that, on September 16, 2014, he mailed a copy of the summons and
complaint via U.S. certified mail, return receipt requested, to Swink at both his residence and
office. Boteler received the return receipt for the mailing sent to the office address, but the
signature is not Swink’s. Boteler did not receive the return receipt for the mailing sent to
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Swink’s residence.
Service has not otherwise been made on Swink or Swink Insurance.
II
Continental moves the court to allow it to serve Swink and Swink Insurance by
delivering the summons and complaint to anyone over the age of 16 at Swink’s residence,
or by affixing the documents to the front door of Swink’s residence if no one is home or
answers the door to accept service. Fed. R. Civ. P. 4(e)(1) provides that service can be made
by “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
law provides that when personal service has been unsuccessful,
[u]pon 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 . . . 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
defendant’s usual place of business or abode], 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). In this case, “service has been attempted but has not been
successful.”
Continental’s multiple attempts to serve Swink at his residence and
office—including one unsuccessful attempt after Swink specifically agreed to meet Weis at
his residence on September 12, 2014 at 10:00 a.m.—support the reasonable inference that
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any further attempts will also be unsuccessful. The court therefore grants Continental’s
motion for substituted service of process.
III
“In dispensing with personal service, Texas courts look for ‘the substitute that is most
likely to reach the defendant [and] is the least that ought to be required if substantial justice
is to be done.’” Textron Fin. Corp. v. Anchor Marine & Tackle, Inc., 2010 WL 428968, at
*2 (W.D. Tex. Jan. 28, 2010) (quoting Forney v. Jorrie, 511 S.W.2d 379, 384 (Tex. Civ.
App. 1974, writ ref’d n.r.e.)). Texas law specifically provides that leaving a copy of the
summons and complaint with a person over the age of 16 at the defendant’s usual place of
business or usual place of abode may be sufficient substitute service. Given that Swink has
actual knowledge that Continental is attempting to serve him with process, and that he has
already failed to honor a scheduled appointment to accept service, the court is concerned that
Swink or anyone acting on his behalf (such as his maid) may be reluctant to open the door
to Swink’s residence to accept service. The court will therefore also authorize Continental
to effect service by leaving a copy of the summons and complaint affixed to the front door
of Swink’s residence, provided that Continental is first unsuccessful in attempting to effect
service on a person over the age of 16 at Swink’s residence. In other words, Continental’s
process server must first make a reasonable attempt to leave the summons and complaint with
a person over age 16 at Swink’s residence. If Continental is unable to effect service in this
manner, Continental is authorized to affix the summons and complaint, together with a copy
of this memorandum opinion and order, to the door of Swink’s residence. See Textron Fin.
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Corp., 2010 WL 428968, at *2 (authorizing substitute service by affixing court papers to
front gate of defendant’s residence and mailing the court papers); Evergreen Nat’l Indem. Co.
v. Herndon, 2007 WL 2827978, at *1 (N.D. Tex. Sept. 28, 2007) (Boyle, J.) (authorizing
service by affixing papers to front gate of defendant’s residence).
Because the address for Swink’s residence has been confirmed by Swink himself
during a telephone conversation with Weis and by the unidentified adult female who
answered the door on September 23, 2014, and since Swink is the sole registered agent for
service of process on Swink Insurance, the court finds that either method of service permitted
by this memorandum opinion and order will be “reasonably effective to give the defendant[s]
notice of the suit,” as Tex. R. Civ. P. 106(b) requires.
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Accordingly, Continental’s September 30, 2014 motion for substituted service of
process is granted as set forth in this memorandum opinion and order.
SO ORDERED.
October 6, 2014.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
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