Mockingbird Dental Group, P.C. v. Carnegie
Filing
21
Memorandum Opinion and Order re Motion 15 filed by Mockingbird Dental Group, P.C. The court ORDERS that plaintiff's motion for substituted service be, and is hereby, granted as to plaintiff's request for substituted service by sendin g a copy of the summons, complaint, and this order by regular first-class mail, postage prepaid, in an envelope addressed to "Sabrina Carnegie f/k/a Iulianna Rychkova to 5301 Alpha Road, Apartment 258, Dallas, Texas 75240," and in all other things denied. (Ordered by Judge John McBryde on 7/10/2015) (trs)
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THE UNITED STATES DISTRICT COURT!
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NORTHERN DISTRICT OF TEX s
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IN
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FORT WORTH DIVISION
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Plaintiff,
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vs.
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NO. 4:15-CV-404-A
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SABRINA CARNEGIE, F/K/A
IULIANNA RYCHKOVA,
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Defendant.
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MEMORANDUM OPINION
and
ORDER
Before the court for decision is the first amended motion
for substituted service filed by plaintiff, Mockingbird Dental
Group, P.C., on June 30, 2015.
After having considered such
motion, the appendix, and applicable legal authorities, the court
has concluded that the motion should be granted in part and
denied in part.
I.
Plaintiff's Motion and Supporting Affidavits
Plaintiff, by way of Rule 4(e} (1} of the Federal Rules of
Civil Procedure and Rule 106(b} (2} of the Texas Rules of Civil
Procedure, moved for an order allowing service of process to be
made on defendant, Sabrina Carnegie formerly known as Iulianna
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CLEH:\, O.S. DiSTRiCT COURT
MOCKINGBIRD DENTAL GROUP, p • c •
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Rychkova, by mailing a copy of the summons, complaint, and the
order of the court authorizing substituted service to 5301 Alpha
Road, Apartment 258, Dallas, Texas 75240 by regular mail, and by
emailing a copy of the summons, complaint, and the order of the
court authorizing substituted service to
sabrinascoinlaundry®gmail.com.
I.
Analysis
Rule 4(e) (1) of the Federal Rules of Civil Procedure
provides that a defendant may be served in a judicial district of
the United States 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
P. 4(e) (1).
"
Fed. R. Civ.
Rule 106(a) of the Texas Rules of Civil Procedure
authorizes service of process by personal delivery to the
defendant or by mailing process to the defendant by registered or
certified mail.
Rule 106(b) authorizes substitute methods of
service when the plaintiff makes a showing that service pursuant
to 106(a) was unsuccessful.
Rule 106(b) states:
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 [by personal
delivery or by certified mail] 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).
The court may authorize substituted
service pursuant to Rule 106(b) only if the plaintiff's
supporting affidavit strictly complies with the requirements of
the Rule.
Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).
The
Texas Supreme Court has authorized substituted service under
106(b) by first class mail, postage prepaid, where there was
"sufficient evidence to establish that notice sent to this
address would be reasonably effective to give [defendant] notice
of the suit."
S.W.2d 298
State Farm Fire and Cas. Co. v. Costley, 868
(Tex. 1993).
Exhibit B-11 to plaintiff's motion contained financing
statements in the name of Sabrina FKA Iulianna Rychkova Carnegie
and a search certificate issued by the Office of the Secretary of
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State of Texas.
The search certificate bears a signature and the
seal of the State of Texas which are sufficient indices of
reliability under Federal Rule of Evidence 902 to consider the
documents self-authenticated.
Fed. R. Evid. 902.
The UCC
financing statement amendment attached to the search certificate
stated that defendant's mailing address is 5301 Alpha Road #258,
Dallas, Texas 75240.
Exhibit A, the affidavit of non-service by
Gerard D. Hudspeth ("Hudspeth"), a private process server, stated
that such address is an apartment that is presently occupied by
"Sabrina Rychkova," and that he attempted personal service on
defendant at that address on June 1, 3, and 4, 2015, but was
unsuccessful.
The evidence indicated that Sabrina Rychkova is
Sabrina Carnegie f/k/a Iulianna Rychkova.
Plaintiff's evidence is sufficient for the court to find
that (1) the above-described address is a place where the
defendant can probably be found,
(2) service has been attempted
under Texas Rule of Civil Procedure 106(a) (1) but such service
has not been successful, and (3) notice sent to the abovedescribed address would be reasonably effective in giving
defendant notice of the suit.
As to plaintiff's request for substituted service viaemail, plaintiff has provided the court with no legal authority
for the proposition that e-mail is an appropriate method of
service.
III.
Order
Therefore,
The court ORDERS that plaintiff's motion for substituted
service be, and is hereby, granted as to plaintiff's request for
substituted service by sending a copy of the summons, complaint,
and this order by regular first-class mail, postage prepaid, in
an envelope addressed to "Sabrina Carnegie f/k/a Iulianna
Rychkova to 5301 Alpha Road, Apartment 258, Dallas, Texas 75240,"
and in all other things denied.
SIGNED July 10, 2015.
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