Bailey v. AT&T Corporate/Headquarters

Filing 14

MEMORANDUM OPINION AND ORDER denying 13 Dismiss for Failure to State a Claim, Motion to Dismiss/Lack of Jurisdiction, and QUASHES Plaintiff'sprevious attempt at service of process. Plaintiff shall have until 5/1/2017, to amend her pleading to reflect the proper party and effect service again on Defendant. Failure to do so will result in dismissal of the action against Defendant without further notice. (Ordered by Judge Jane J. Boyle on 3/29/2017) (epm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LAKEYCHA BAILEY,
Plaintiff,
v.
AT&T
CORPORATE/HEADQUARTERS,
Defendant.

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CIVIL ACTION NO. 3:16-CV-1464-B

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant AT&T Corporate/Headquarters’ Motion to Dismiss pursuant
to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6).1 Doc. 13. For the reasons presented
below, the Court DENIES without prejudice Defendant’s Motion and QUASHES Plaintiff’s
previous attempt at service of process.
I.
BACKGROUND
Plaintiff LaKeycha Bailey sued Defendant AT&T Corporate/Headquarters (AT&T) to
recover benefits due her under the terms of her pension plan (the Plan).2 Doc. 3, Pl.’s Compl. 1. In

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Defendant also appears to move to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack
of subject matter jurisdiction. See Doc. 13, Def.’s Mot. to Dismiss 1. But Defendant does not make an
argument in support of dismissing the case based on Rule 12(b)(1), and throughout its Motion, it specifically
states that there are two grounds on which to dismiss Plaintiff’s claims—under Rule 12(b)(5) and Rule
12(b)(6). For those reasons and because the Motion can be decided with regard to only Rule 12(b)(5), the
Court does not consider Defendant’s Motion under Rule 12(b)(1).
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While Plaintiff does not provide the Court with a specific plan, it appears from Defendant’s Motion
to Dismiss that Plaintiff is referring to the AT&T Pension Benefit Plan. Doc. 13, Def.’s Mot. to Dismiss 1.
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her Complaint, Plaintiff alleges that she did not receive “the same pension options as other employees
that were on the same contract,” and that she was compensated under the Plan at a lower rate than
her peers who had less seniority.3 Doc. 3, Pl.’s Compl. 1. Defendant filed its Motion to Dismiss and
argued that the Court should dismiss Plaintiff’s claims on two independent grounds: (1) under
12(b)(5) for insufficient service of process; or (2) under 12(b)(6) because Plaintiff failed to state a
claim on which relief can be granted. Doc. 13, Def.’s Mot. to Dismiss 1. Plaintiff failed to file a
Response to Defendant’s Motion. The Motion is ripe for the Court’s review.
II.
LEGAL STANDARD
A.

Motion to Dismiss Pursuant to Rule 12(b)(5)
Under Federal Rule of Civil Procedure 4(c)(1), the plaintiff is responsible for serving the

defendant with a complaint and summons. If a plaintiff performs an insufficient service of process,
the defendant may seek to dismiss the plaintiff’s complaint under Rule 12(b)(5). Cockerham v. Rose,
No. 3:11-CV-277-B, 2011 WL 1515159, at *1 (N.D. Tex. Apr. 18, 2011).
When a defendant questions the validity of service of process, “the plaintiff bears the burden
of establishing its validity.” Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir.
1992). Where the alleged defect in the service of process is that the defendant is misnamed in the
summons, a defendant can challenge service under Rule 12(b)(5) “on the ground that the wrong
party—a party not named in the summons—has been served.” Fed. R. Civ. P. 4(a)(1)(A); Gartin v.

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While Plaintiff does not specify where she worked in her Complaint, from Defendant’s Motion to
Dismiss, it appears that Plaintiff was an employee at BellSouth Telecommunications, LLC. Doc. 13, Def.’s
Mot. to Dismiss 1.
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Par Pharm. Cos., Inc., 289 F. App’x 688, 691 n.3 (5th Cir. 2008).
B.

Pro Se Litigants
Before examining the issues before the Court, the Court notes that pro se litigants are

expected to comply with the rules of pleading and the rules of service. See Birl v. Estelle, 660 F.2d
592, 593 (5th Cir. 1981) (per curiam). Parties who proceed pro se, however, are often given more
leeway than represented parties in correcting errors in pleadings and defects in service of process. See
Reece v. Countrywide Home Loans, 250 F. App’x 91, 92 (5th Cir. 2007). Further, a court must liberally
construe a pro se complaint, taking all well-pleaded allegations as true. Johnson v. Atkins, 999 F.2d
99, 100 (5th Cir. 1993) (per curiam). Nevertheless, a pro se plaintiff's complaint "must set forth facts
giving rise to a claim on which relief may be granted." Id.
III.
ANALYSIS
In its Motion to Dismiss, Defendant argues that the Court should dismiss Plaintiff’s suit for
two reasons. First, Defendant claims that the Court should dismiss Plaintiff’s claims under 12(b)(5)
because Plaintiff failed to name the correct party in her Complaint and in her Summons, so she
ultimately served the incorrect party. Doc. 13, Def.’s Mot. to Dismiss 1. In the alternative, Defendant
argues that the Court should dismiss Plaintiff’s claims under 12(b)(6) because Plaintiff failed to state
a claim for pension benefits under ERISA for which relief may be granted. Id. The Court need only
reach Defendant’s 12(b)(5) argument, though, because it finds that service was improper.
Regarding Rule 12(b)(5), Defendant notes that Plaintiff named the non-existent entity,
“AT&T Corporate/Headquarters” as the defendant in her Complaint and Summons. Doc. 13, Def.’s
Mot. to Dismiss 3. After Plaintiff named the incorrect entity, Plaintiff served the correct entity—the
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Plan’s agent for service of process. Id. Therefore, Defendant argues, the discrepancy between naming
the incorrect party, but serving the correct party indicates that this Court lacks personal jurisdiction
over Defendant, and Plaintiff’s claims should be dismissed under 12(b)(5). Id. at 4. Plaintiff failed
to file a response to Defendant’s arguments.
As discussed above, in cases where the alleged defect in service of process is that the
defendant is misnamed in the summons, a defendant can challenge service under Rule 12(b)(5) “on
the ground that the wrong party—a party not named in the summons—has been served.” Gartin,
289 F. App’x at 691 n.3. As this is the exact argument Defendant makes, Defendant calls into
question the validity of service under Rule 12(b)(5). When a defendant questions the validity of
service of process, “the plaintiff bears the burden of establishing its validity.” Carimi, 959 F.2d at
1346. Here, however, the Plaintiff did not file a response, so she did not carry her burden of
establishing the validity of service. Therefore, service is invalid under Rule 4, and the Court must
now determine whether it should dismiss Plaintiff’s claims, as Defendant requests, or quash service
and give Plaintiff another opportunity to effectuate proper service.
While insufficient service of process under Rule 4 is grounds for dismissal, if a plaintiff names
an incorrect party on the summons, and the result is “a mere misnomer that injured no one,” it
would be error for the Court to dismiss without allowing the plaintiff to amend the summons and
complaint so that they correctly identify Defendant. Grandey v. Pac. Indem. Co., 217 F.2d 27, 29 (5th
Cir. 1954); see also Grant-Brooks v. Nationscredit Home Equity Servs. Corp., No. 3:01-CV-2327-R,
2002 WL 424566, at *4 (N.D. Tex. Mar. 15, 2002) (citing 5B A. Wright & A. Miller, Federal
Practice and Procedure § 1354 (3d ed.)(Service is usually quashed “in those situations in which there
is a reasonable prospect that the plaintiff ultimately will be able to serve the defendant properly.”))
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Instead, the Court may exercise its discretion to “quash service and give the plaintiff an additional
opportunity” to serve the correctly named party. Neely v. Khurana, No. 3:07-CV-1344-D, 2008 WL
938904, at *2 (N.D. Tex. Mar. 12, 2008), adopted by 2008 WL 938904, at *1 (N.D. Tex. Apr. 7,
2008); 5B A. Wright & A. Miller, Federal Practice and Procedure § 1354 (3d ed.). This remedy is
appropriate where the correct party is before the court but under an incorrect name. Jackson v. Duke,
259 F.2d 3, 7 (5th Cir. 1958). Furthermore, a court should consider a plaintiff’s pro se status and a
plaintiff’s good faith attempt to effect service. Neely, 2008 WL 938904, at *2.
Here, Defendant concedes that the entity actually served, the agent for the Plan, was the
correct party, and the only mistake was naming “AT&T Corporate/Headquarters” on the Complaint
and Summons. Doc. 13, Def.’s Mot. to Dismiss 4. Therefore, it appears that the correct party is
before the Court but under an incorrect name. See Jackson, 259 F.2d at 7. Furthermore, Plaintiff is
proceeding pro se and appears to have attempted service in good faith. See Neely, 2008 WL 938904,
at *2. Therefore, the Court concludes that it would be appropriate to allow Plaintiff to have another
opportunity to amend her pleadings to reflect the proper name of the Defendant and to serve the
correct party. See Duke, 259 F.2d at 7.
IV.
CONCLUSION
For the reasons stated above, the Court DENIES without prejudice Defendant’s Motion to
Dismiss and QUASHES Plaintiff’s previous attempts at service of process. Plaintiff shall have until
May 1, 2017, to amend her pleading to reflect the proper party and effect service again on
Defendant. Failure to do so will result in dismissal of the action against Defendant without further
notice.
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SO ORDERED.
SIGNED: March 29, 2017.

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