Mockingbird Dental Group, P.C. v. Carnegie

Filing 8

Memorandum Opinion and Order: The court ORDERS that plaintiff's motion for substituted service be, and is hereby, denied without prejudice to the refilling of a motion accompanied by an adequate afidavit. (Ordered by Judge John McBryde on 6/19/2015) (trs)

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NORTHER~;

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IN THE UNITED STATES DISTRICT COURT~_
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NORTHERN DISTRICT OF TEX S
~ I g 2015
FORT WORTH DIVISION

CLERK, U.S. DISTRICT COUU

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Plaintiff,

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MOCKINGBIRD DENTAL GROUP, P.C.,

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Deputy

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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 motion for substituted
service filed by plaintiff, Mockingbird Dental Group, P.C., on
June 12, 2015.

After having considered such motion, the

affidavit filed in support thereof, and applicable legal
authorities, the court has concluded that the motion should be
denied.
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, moves for an order allowing service of process to be
made on defendant, Sabrina Carnegie formerly known as Iulianna

Rychkova, by leaving a copy of the summons and complaint
conspicuously affixed to the door of 5301 Alpha Road, Apartment
258, Dallas, Texas (the "Address").

In support of its motion,

plaintiff submitted exhibits B, C-1, and C-2, which plaintiff
contended are screen shots of websites operated by the defendant,
and an affidavit of non-service by Gerard D. Hudspeth
("Hudspeth"), a private process server.
The screen shots offered by plaintiff are not authenticated.
Authentication is not a heavy burden.

Thompson v. Bank of Am.

N.A., 783 F.3d 1022, 1027 (5th Cir. 2015).

However, plaintiff

presented no evidence that these screen shots fairly represent
such websites.

See id.

("In the case of an exhibit purported to

represent an electronic source, such as a website or chat logs,
testimony by a witness with direct knowledge of the source,
stating that the exhibit fairly and fully reproduces it, may be
enough to authenticate.").

For that reason, the court did not

consider such evidence in ruling on plaintiff's motion for
substituted service.
With regard to the affidavit, Hudspeth averred that on June
1, 2015, he attempted to serve defendant at the Address.

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He

located a "Sabrina Rychkova" in the apartment building's
directory and attempted to call her apartment from the directory
but there was no answer.

On June 3, 2015, he once again used the

directory to call the Address but no one answered.

He then

knocked directly on the door but that produced no answer.

On

June 4, 2015, Hudspeth spoke with an employee in the leasing
office of the Address who confirmed that the building directory
was up-to-date.

Hudspeth then went to the apartment and knocked

on the door again, but there was no answer and the 'notice' he
had posted on June 3, 2015, requesting a call-back, was still on
the door.

Hudspeth concluded that the apartment is not vacant

and is the apartment of Sabrina Rychkova.
II.

Analysis
A.

Law Pertaining to Substituted Service
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

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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.
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.
S. W. 2 d 8 3 3 , 8 3 6 (Tex. 19 9 0) .

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Wilson v. Dunn, 800

B.

Application of Law to Facts
Hudspeth's affidavit does not provide the information

required for this court to authorize substituted service under
Rule 106(b).

The complaint names defendant as Sabrina Carnegie

f/k/a Iulianna Rychkova.

The affidavit does not explain how

Hudspeth concluded that Sabrina Rychkova was the defendant.
Further, while Hudspeth averred that he was told the building
directory was up-to-date, he does not state the basis for his
belief that the apartment is not empty and that it is the
apartment of defendant.

No one answered when Hudspeth knocked on

the door and his notice requesting a call-back was still on the
door the next day.

Moreover, even assuming arguendo that Sabrina

Rychkova is another name of the defendant, it is possible that
defendant's name is on the lease for an apartment that is not her
usual place of abode or place where she can probably be found.
Finally, the affidavit does not state any fact showing that the
method of service plaintiff requested that the court authorize
would be reasonably effective to give defendant notice of the
suit.

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If plaintiff chooses to move again for substituted service,
the court expects plaintiff to support its motion with an
affidavit or affidavits showing that plaintiff has attempted to
serve defendant in the exact manner required by Rule 106(b) and
that the proposed substitute method of service will be reasonably
effective in giving defendant notice of this action.
III.
Order
Therefore,
The court ORDERS that plaintiff's motion for substituted
service be, and is hereby, denied without prejudice to the
refiling of a motion accompanied by an adequate a fidavit.
SIGNED June 19, 2015.

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