Driessen v. Innovate Loan Servicing Corporation et al
Filing
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ORDER: Before the Court is the Findings, Conclusions and Recommendation of the Magistrate Judge (ECF No. 27 ), filed July 5, 2017. Also before the court is Plaintiff's Objections to the Findings, Conclusions, and Recommendations of United States Magistrate Judge (ECF No. 28 ), filed July 17, 2017. Having considered the motions, the Court DOES NOT ADOPT the Findings, Conclusions and Recommendations. Plaintiff's Objections demonstrate her reasonable diligence to serve Defendant at its registered office. Under Texas Business Organization Code Section 5.251 the Secretary of State is an appropriate proxy for service. The Court finds that Plaintiff has demonstrated good cause for her failure to properly serve Defendant with in the appropriate period. Accordingly, Plaintiff's Motion to Extend Time for Service of Process (ECF No. 29 ), filed August 10, 2017 is hereby GRANTED. Plaintiff must properly serve defendant on or before November 22, 2017. (Ordered by Judge Reed C. O'Connor on 8/22/2017) (skg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ROCHELLE DRIESSEN,
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Plaintiff,
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v.
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INNOVATE LOAN SERVICING CORP. §
and CAPROCK AUTO
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REMARKETING
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Defendants.
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Civil Action No. 4:16-cv-01066-O-BP
ORDER
Before the Court is the Findings, Conclusions and Recommendation of the Magistrate
Judge (ECF No. 27), filed July 5, 2017. Also before the court is Plaintiff’s Objections to the
Findings, Conclusions, and Recommendations of United States Magistrate Judge (ECF No. 28),
filed July 17, 2017. Having considered the motions, the Court DOES NOT ADOPT the Findings,
Conclusions and Recommendations.
I. BACKGROUND
The Findings, Conclusions, and Recommendations (“FCR”) found that Plaintiff did not
present the Court with proof of proper service or with good cause why such proof could not be
filed. FCR at 2 ECF No. 27. Plaintiff’s Objections detail her attempts to mail the summons by
certified mail with return receipt requested. Pl.’s Obj. ¶ 3 ECF No. 28. Plaintiff explained that the
U.S. Postal Service left a notice with Defendant to pick up the certified mail or have it redelivered.
The first delivery was unsuccessful because there was no authorized agent present. (ECF No. 28).
Plaintiff pointed out that the deadline to pick up the mail was June 28, 2017 and as of the date of
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filing, July 17, 2017, Plaintiff had not received any returned mail from the Post Office, leaving the
state of the summons unclear. Pl.’s Obj. at 2, ECF no. 28.
The Court finds that Plaintiff’s Motion to Extend Time for Service of Process1 (ECF
No. 29), filed August 10, 2017, shows good cause pursuant to Rule 4(m) to allow for an extension
of time to serve Defendant. Rule 4(m) of the Federal Rules of Civil Procedure provides that “if the
plaintiff shows good cause for the failure [to properly serve defendant], the court must extend the
time for service for an appropriate period.”
II. LEGAL STANDARD
“The burden of showing ‘good cause’ is on the plaintiff.” Hunt v. Smith, 67 F. Supp. 2d
675, 684 (E.D. Tex. 1999) (citing Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013
(5th Cir. 1990)). To establish good cause a plaintiff must show more than “inadvertence, or
mistake of counsel, or ignorance of the rules.” Strain v. Kaufman Cnty. Dist. Attorney’s Office,
23 F. Supp. 2d 685, 697 (N.D. Tex. 1998) (Bilby, J.) (internal quotation marks and citation
omitted). Good cause requires “some showing of good faith on the part of the party seeking an
enlargement and some reasonable basis for noncompliance within the time specified.” Thrasher
v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013) (quoting Lambert v. United States, 44 F.3d
296, 299 (5th Cir. 1995)) (internal quotation marks omitted).
III. ANALYSIS
Plaintiff showed that she attempted delivery by mail to Defendant within the allotted time
and has not received notice of failure of that delivery. Pl.’s Mot. Ext. ¶ 3, ECF 29. In an attempt
to comply with the Federal Rules of Civil Procedure, Plaintiff has requested to re-serve Defendant
by filing with the Texas Secretary of State, in accordance with Federal Rules of Civil Procedure
Because Plaintiff is requesting additional time to serve the Defendant, the Court will treat Plaintiff’s
Motion for Re-Issuance of Summons on Defendant as a Motion to Extend Time for Service of Process.
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Rule 4(h)(1)(A)-(B). Rule 4(h)(1)(B) allows for service of a corporation to take place by
“delivering a copy of the summons [to] any other agent authorized by appointment or by law to
receive service of process.” Under Section 5.251 of the Texas Business Organization Code, the
Secretary of State may serve as an agent for the purposes of service of process if the entity is a
“filing entity” and “(A) the entity fails to appoint or does not maintain a registered agent in this
state; or (B) the registered agent of the entity cannot with reasonable diligence be found at the
registered office of the entity.”
IV. CONCLUSION
Plaintiff’s Objections demonstrate her reasonable diligence to serve Defendant at its
registered office. Under Texas Business Organization Code Section 5.251 the Secretary of State is
an appropriate proxy for service. The Court finds that Plaintiff has demonstrated good cause for
her failure to properly serve Defendant within the appropriate period. Accordingly, Plaintiff’s
Motion to Extend Time for Service of Process (ECF No. 29), filed August 10, 2017 is hereby
GRANTED. Plaintiff must properly serve defendant on or before November 22, 2017.
SO ORDERED on this 22nd day of August, 2017.
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Reed O’Connor
UNITED STATES DISTRICT JUDGE
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