Chhim v. Huntleigh USA Corporation
Filing
13
ORDER ON MOTION TO DISMISS. Case terminated on February 28, 2014.(Signed by Judge Kenneth M. Hoyt) Parties notified.(chorace)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSEPH CHHIM,
Plaintiff,
vs.
HUNTLEIGH USA CORPORATION,
Defendant.
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CIVIL ACTION NO. 4:13-cv-3261
ORDER ON MOTION TO DISMISS
Pending before the Court is the defendant’s, Huntleigh USA Corporation (“Huntleigh”),
motion to dismiss and memorandum in support thereof brought pursuant to Rules 12(b)(2) and
12(b)(5) of the Federal Rules of Civil Procedure. (Dkt. Nos. 5 & 6). The plaintiff, Joseph
Chhim (“Chhim”), has failed to file a response to Huntleigh’s motion to dismiss and the time for
doing so has elapsed. Pursuant to this Court’s local rules, Chhim’s failure to respond will be
“taken as a representation of no opposition.”
S.D. Tex L.R. 7.4.
After having carefully
considered the motion, the pleadings and the applicable law, the Court determines that
Huntleigh’s motion to dismiss should be GRANTED.
Federal Rule of Civil Procedure 12(b)(2) permits a court to dismiss an action when it
lacks personal jurisdiction over a defendant. Fed. R. Civ. P. 12(b)(2). When ruling on a motion
brought pursuant to Rule 12(b)(2), a court may review “affidavits, interrogatories, depositions,
oral testimony or any combination of the recognized methods of discovery.” Stuart v. Spademan,
772 F.2d 1185, 1192 (5th Cir. 1985). Once a defendant contests the assertion of personal
jurisdiction, the plaintiff “seeking to invoke the power of the court bears the burden of proving
that jurisdiction exists.” Luv N' Care Ltd. v. Insta–Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006)
(citing Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir. 1982)). At the pretrial stage, in the absence
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of a hearing, the plaintiff need only establish a prima facie case for personal jurisdiction. Luv N'
Care, 438 F.3d at 469; Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.), cert. denied, 513 U.S. 930
(1994).
Federal Rule of Civil Procedure 12(b)(5) authorizes the court to dismiss a case for
“insufficient service of process.”
Fed. R. Civ. P. 12(b)(5); see also Kreimerman v. Casa
Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir.), cert. denied, 513 U.S. 1016, 115 S. Ct. 577,
130 L.Ed.2d 492 (1994) (“A district court . . . has broad discretion to dismiss an action for
ineffective service of process.”). “In the absence of [proper] service of process (or waiver of
service by the defendant), a court ordinarily may not exercise [jurisdiction] over a party the
complaint names as a defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S.
344, 350, 119 S. Ct. 1322, 143 L.Ed.2d 448 (1999). “[T]o achieve proper service for purposes of
Rule 12(b)(5), a party must follow the requirements of Rule 4 of the Federal Rules of Civil
Procedure.” Rhodes v. J.P. Sauer & Sohn, Inc., 98 F. Supp.2d 746, 748 - 749 (W.D. La. 2000).
Because the issue in this case concerns whether service of process was properly effected
on a corporation, the plaintiff, or Chhim, was required to comply with Rule 4(h) of the Federal
Rules of Civil Procedure. See Fed. R. Civ. P. 4(h). Rule 4(h) specifically provides as follows:
(h) Serving a Corporation, Partnership, or Association. Unless federal law
provides otherwise or the defendant’s waiver has been filed, a domestic or foreign
corporation, or a partnership or other unincorporated association that is subject to
suit under a common name, must be served:
(1)
in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual;
or
(B) by delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent authorized
by appointment or by law to receive service of process and--if the
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agent is one authorized by statute and the statute so requires--by also
mailing a copy of each to the defendant; or
(2)
at a place not within any judicial district of the United States, in any
manner prescribed by Rule 4(f) for serving an individual, except personal
delivery under (f)(2)(C)(i).
Fed. R. Civ. P. 4(h). Rule 4(e)(1) authorizes service on an individual in accordance with Texas
law. Texas law authorizes service on the corporation’s president, vice president, or registered
agent or on the secretary of state if “the registered agent of the entity cannot with reasonable
diligence be found at the registered office of the entity.” Tex. Bus. Orgs. Code § § 5.201,
5.251(1), 5.255(1). Rule 4(m) further maintains that if service is not perfected on a defendant
within 120 days after the filing of the complaint and there is no showing of good cause for the
failure to effect such service, a court is required to either dismiss the action without prejudice or
order that service be made within a precise time. See Fed. R. Civ. P. 4(m).
Moreover, “[w]hen service of process is challenged, the serving party bears the burden of
proving its validity or good cause for failure to effect timely service.” Sys. Signs Supplies v. U.S.
Dep’t of Justice, Wash., D.C., 903 F.2d 1011, 1013 (5th Cir. 1990) (citing Winters v. Teledyne
Movible Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir. 1985); Aetna Bus. Credit, Inc. v. Universal
Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. Unit A Jan. 1981)). In the Fifth
Circuit, the standard for “good cause” requires a litigant “to show excusable neglect, as to which
simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.’”
Sys. Signs Supplies, 903 F.2d at 1013 (quoting Winters, 776 F.2d at 1306 (emphasis omitted)).
“[T]he claimant must [also] make a showing of good faith and establish ‘some reasonable basis
for noncompliance within the time specified.’”
Id. (internal citation and quotation marks
omitted). “[A] district court enjoys broad discretion in determining whether to dismiss an action
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for ineffective service of process.” George v. U.S. Dep’t of Labor, Occupational Safety &
Health Admin., 788 F.2d 1115, 1116 (5th Cir. 1986).
In this case, Huntleigh contends that dismissal of this case is proper under Fed. R. Civ. P.
12(b)(5) for insufficiency of service of process because Chhim failed to effect service pursuant to
Rule 4(h)(1)(B) or Texas law. It maintains that Chhim ignored the rules and instead mailed a
copy of the complaint to its outside employment counsel, John B. Renick. It contends that
Renick is neither its registered agent for service of process nor an individual with actual
authority to receive service on its behalf. As a consequence, it argues that such “service” is not
permitted under the Rules and has not been recognized as a permissible substitute. This Court is
inclined to agree.
Chhim filed this action on November 5, 2013.
Huntleigh moved for dismissal on
November 25, 2013, giving Chhim detailed notice of his deficiencies relative to service of
process, the prerequisites for effecting proper service, and the potential for dismissal in light of
Huntleigh’s claim of lack of personal jurisdiction.
Notably, Chhim has not responded to
Huntleigh’s motion to dismiss and the time for doing so has long expired. Moreover, the
allegations contained in Chhim’s complaint in this case bear a striking resemblance to those
alleged in a previous case he filed against Huntleigh and its then-acting Human Resources
Manager in November of 2012. That case was dismissed on October 3, 2013, on Huntleigh’s
motion for sanctions due to Chhim’s repeated failure to respond to discovery. Therefore, given
the duration of suit, Chhim’s ample notice of the defect in service, his failure to proffer any
suggestion of good cause in spite of such notice coupled with his pattern of dilatory behavior,
this Court determines dismissal to be appropriate. Accordingly, Huntleigh’s motion to dismiss is
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GRANTED and this case is DISMISSED for lack of personal jurisdiction based on insufficient
service of process.
It is so ORDERED.
SIGNED on this 28th day of February, 2014.
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Kenneth M. Hoyt
United States District Judge
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