Carter v. Cal-Tex Communications Inc

Filing 8

MEMORANDUM OPINION AND ORDER granting 7 MOTION to Extend Time for Service and to Serve Via Substituted Service of Process filed by Marcus Carter. (Ordered by Judge Sidney A Fitzwater on 6/2/2016) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MARCUS CARTER, individually and on
behalf of all others similarly situated,
Plaintiff,
VS.
CAL-TEX COMMUNICATIONS, INC.,
Defendant.

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§ Civil Action No. 3:16-CV-0697-D
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MEMORANDUM OPINION
AND ORDER
Plaintiff Marcus Carter (“Carter”) moves for leave to effect substituted service on defendant
Cal-Tex Communications, Inc. (“Cal-Tex”) and to extend time for service. For the reasons that
follow, the court grants the motion.1
I
Carter filed this collective action seeking recovery of compensation under the Fair Labor
Standards Act for work performed for Cal-Tex in excess of 40 hours per week. Through a process
server, Carter has attempted four times to personally serve Jack E. Burleson, Cal-Tex’s registered
agent for service of process, at his Old Railroad Trail address in Kaufman, Texas2: on April 16,

1

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written opinion”
adopted by the Judicial Conference of the United States, this is a “written opinion[] issued by the
court” because it “sets forth a reasoned explanation for [the] court’s decision.” It has been written,
however, primarily for the parties, to decide issues presented in this case, and not for publication in
an official reporter, and should be understood accordingly.
2

To address the privacy concerns associated with disclosing residence addresses, the court
will refer to addresses by street name without listing the specific address and city. See Fed. R. Civ.
P. 5.2(e)(1) (permitting court to require redact of information not specifically listed in Rule
5.2(a)(1)-(4)).

2016, at 11:30 a.m.; on April 21, 2016, at 7:19 p.m.; on April 22, 2016, at 7:25 a.m.; and on
April 23, 2016, at 1:34 p.m. Carter’s motion for substituted service is supported by the
affidavit of Peyton Hutchinson (“Hutchinson”), in which he details his attempts to serve
Burleson at Old Railroad Trail. According to Hutchinson, he attempted to serve Burleson
on four different days and at four different times of day, and a vehicle registered to Burleson
was parked in the driveway each time.
II
Carter moves for leave to effect substitute service on Cal-Tex. He asks the court to
allow him to serve Cal-Tex by personally serving its general partner, president, governing
person, and/or manager pursuant to Tex. Bus. and Org. Code § 5.255 (West 2015), at an
address in Garland advertised by Cal-Tex as the place it conducts operations. 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[.]” Under Texas law, 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 . . . (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

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successful.” Carter’s multiple attempts through a process server to serve Cal-Tex’s
registered agent at his registered address support the reasonable inference that any further
attempts will also be unsuccessful. The court therefore grants Carter’s motion for substituted
service of process.
Tex. Bus. and Org. Code § 5.255 provides that “[f]or the purpose of service of
process, notice, or demand,” the president, each general partner, manager, and governing
person is an agent of the corporation, partnership, limited liability company, or other entity,
respectively. Accordingly, the court finds that service on Cal-Tex’s president, general
partner, manager, or other governing person will be reasonably effective to give Cal-Tex
notice of this lawsuit.
III
Carter also seeks an extension of the time for service to 30 days from the date of this
memorandum opinion and order. Under Fed. R. Civ. P. 4(m), the court can extend the time
for service for good cause. The court finds that Carter’s multiple attempts to serve Cal-Tex
within the time for service constitute good cause to extend the deadline for service.
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Accordingly, the court grants Carter’s motion for substituted service as set forth in this
memorandum opinion and order. Carter must effect substituted service no later than 30 days

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from the date this memorandum opinion and order is filed.
SO ORDERED.
June 2, 2016.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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