Ward v. Elliott Turbocharger Group Inc et al

Filing 15

MEMORANDUM AND ORDER (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHRISTOPHER WARD,
Plaintiff,
v.
ELLIOTT TURBOCHARGER
GROUP INC., et al.,
Defendants.

§
§
§
§
§
§
§
§

CIVIL ACTION NO. H-14-2176

MEMORANDUM AND ORDER
This Title VII case is before the Court on Elliott Company’s (“Elliot
Company”) Motion to Dismiss for Insufficient Service of Process, and Lack of
Personal Jurisdiction (“Elliot Company’s Motion”) [Doc. # 9] and Defendants Tommy
Montier (“Montier”) and Dan Huskey’s (“Huskey”) (collectively, with Elliot
Company, “Movants”) Motion to Dismiss for Insufficient Process, Insufficient
Service of Process, and Lack of Personal Jurisdiction (“Montier & Huskey’s Motion”)
[Doc. # 10]. Plaintiff Christopher Ward (“Plaintiff”) filed a Memorandum in
Opposition to Defendants’ Motion to Dismiss (“Response”) [Doc. # 13], to which
Movants filed a Reply [Doc. # 14].1 These motions are ripe for review. After
1

Elliot Company has also filed a Motion to Modify the Court’s Docket (“Motion to
Modify”) [Doc. # 11], seeking to change the docket entry for Document # 9 to reflect
that the motion to dismiss was filed by Elliot Company, rather than named Defendant
Elliot Turbocharger Group, Inc. See Motion to Modify, at 1. Plaintiff has not filed
(continued...)

P:\ORDERS\11-2014\2176MD.wpd

150225.1545

reviewing the parties’ briefing, all matters of record, and the applicable legal
authorities, the Court grants Elliot Company’s Motion and grants Montier &
Huskey’s Motion. Pursuant to Rule 4(m) of the Federal Civil Rules of Procedure, the
Court dismisses this case without prejudice.
I.

BACKGROUND
On July 29, 2014, Plaintiff filed this Title VII lawsuit against “Elliot

Turbocharger Group, Inc.,” “Tommy Montier,” and “Dan Husky [sic]” (collectively,
“Defendants”). See Complaint for Damages (“Complaint”) [Doc. # 1], ¶¶ 1, 3.
Plaintiff failed to timely serve any of the Defendants before the initial pretrial and
scheduling conference, originally set for October 6, 2014. See Order dated Sept. 22,
2014 [Doc. # 3].
The Court granted Plaintiff two extensions for the deadline to serve Defendants.
The Court first extended Plaintiff’s deadline to November 28, 2014, and warned
Plaintiff that failure to meet this deadline to serve Defendants or show cause why this
case should not be dismissed for lack of service would result in his case being
dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Id. On
1

(...continued)
a response or otherwise indicated it is opposed to the Motion to Modify. The Court
grants Elliot Company’s Motion to Modify and directs the Clerk of the Court to
modify the docket entry for Document # 9 to reflect that the motion to dismiss was
filed by Elliot Company.

P:\ORDERS\11-2014\2176MD.wpd

150225.1545

2

December 1, 2014, three days after the expiration of the Court’s deadline, Plaintiff
requested a thirty day extension of the deadline for service and stated that he still had
not served Defendants due to “some geographical constraints and the holiday time.”
See Motion for Extension [Doc. # 4], at 2. The Court again extended the deadline to
serve Defendants to December 29, 2014. See Order dated Dec. 1, 2014 [Doc. # 5].
However, the Court warned Plaintiff that it would not grant a further extension of this
deadline. Id.
On December 10, 2014, for the first time, Plaintiff requested issuance of
summonses for each of the three Defendants. See Summonses in a Civil Action
[Docs. # 6, # 6-1, and # 6-2]. On December 23, 2014, Plaintiff filed a memorandum
stating “service of process on all of the defendants was executed on December 22,
2014.” See Memorandum Regarding Service (“Dec. 23 Memorandum”) [Doc. # 7],
at 1. Plaintiff attached three unsigned and undated affidavits of service from a process
server named Gary Hodges stating that, on December 22, 2014, Hodges delivered the
summonses and Complaint to Randy Scott, who “is authorized to accept service” for
“Montier,” “Husky [sic],” and the “Elliot Turbocharger Group Inc [sic].” See
Unsigned Affidavits of Service [Docs. # 7-1, # 7-2, and # 7-3]. On December 29,
2014, Plaintiff filed another memorandum stating “Elliot Turbocharger Group, Inc.,
has been properly served,” but it was unable to discover the “appropriate addresses

P:\ORDERS\11-2014\2176MD.wpd

150225.1545

3

and other relevant information to formally serve Mr. Montier and Mr. Husky [sic].”
Memorandum Regarding Service (“Dec. 29 Memorandum”) [Doc. # 8], at 1-2.
Plaintiff, thus, admitted in the Dec. 29 Memorandum that “service on Mr. Montier and
Mr. Husky [sic] has not been perfected.” Dec. 29 Memorandum, at 2. Plaintiff
nevertheless attached to his second memorandum the same three affidavits from Gary
Hodges, this time signed and notarized on December 22, 2014. See Signed Affidavits
of Service dated Dec. 22, 2014 [Docs. # 8-1, # 8-2, and # 8-3]. These affidavits stated
that service was completed on all three Defendants by delivering copies of the
summonses and Complaint on December 22, 2014, to Randy Scott, “who is authorized
to accept service” for all three Defendants. Id.
Contrary to the affidavits and portions of the December Memoranda, it is now
undisputed that none of the Defendants has been properly served. Plaintiff does not
explain the discrepancies among the affidavits of service and the Dec. 23 and Dec. 29
Memoranda regarding service on Defendants. On the other hand, Movants provided
uncontroverted evidence that the affidavits of service from Gary Hodges contained
false statements and that Randy Scott told Hodges that he, Scott, was not authorized
to accept service on behalf of any of the Defendants. See Declaration of Tommy
Montier [Doc. # 10-1], ¶ 4; Declaration of Dan Huskey [Doc. # 10-2], ¶ 4; Declaration
of Randy Scott [Doc. # 10-3], ¶¶ 2-5. The parties also agree that Elliot Turbocharger,

P:\ORDERS\11-2014\2176MD.wpd

150225.1545

4

Inc. cannot have been properly served because, when purportedly served, it no longer
existed as a corporation, and thus is not a proper party to this lawsuit. See Exhibit B
to Elliot Company’s Motion [Doc. # 9-2] (containing a print out from the Texas
Secretary of State’s website showing “Termination of Foreign Entity” on December
20, 2004 and a copy of the Certificate of Dissolution filed with the Delaware Secretary
of State in July 2003); see also Response, at 2 (stating “Plaintiff will amend his
Complaint for Damages to name Elliot Company as the proper defendant in this
matter”).
Plaintiff argues that good cause exists to grant a third extension of the deadline
to serve Defendants. Response, at 2. Movants seek to dismiss this case under Rules
12(b)(2), 12(b)(4), and 12(b)(5) of the Federal Rules of Civil Procedure for failure to
effect service in compliance with Rule 4 of the Federal Rules of Civil Procedure.
Elliot Company’s Motion, at 1; Montier & Huskey’s Motion, at 1. Movants argue
good cause does not exist to extend the deadline a third time to serve Defendants, and
that the summonses delivered by Plaintiff contain substantive deficiencies.
II.

LEGAL STANDARD
“A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency

of the service of process. The party making service has the burden of demonstrating
its validity when an objection to service is made.” Quinn v. Miller, 470 F. App’x 321,

P:\ORDERS\11-2014\2176MD.wpd

150225.1545

5

323 (5th Cir. 2012) (citing FED. R. CIV. P. 12(b)(5); Carimi v. Royal Carribean Cruise
line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992)).
Under Rule 4(m) of the Federal Rules of Civil Procedure, a plaintiff is required
to serve a defendant within 120 days after the complaint is filed. FED. R. CIV. P. 4(m);
Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013). “A failure to comply
with Rule 4(m)’s time requirement authorizes a district court to dismiss an action
without prejudice, except upon a showing of good cause.” Lozano v. Bosdet, 693 F.3d
485, 487 (5th Cir. 2012); see also FED. R. CIV. P. 4(m). Plaintiff bears the burden of
showing valid service or good cause for failure to effect timely service. Thrasher, 709
F.3d at 511; Sys. Signs Supplies v. U.S. Dep’t of Justice Wash., D.C., 903 F.2d 1011,
1013 (5th Cir. 1990) (per curiam).
“Proof of good cause requires ‘at least as much as would be required to show
excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance
of the rules usually does not suffice.’” Thrasher, 709 F.3d at 511 (quoting Winters
v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985)).
“Additionally, some ‘showing of good faith on the part of the party seeking an
enlargement and some reasonable basis for noncompliance within the time specified
is normally required.’” Id. (quoting Sys. Signs Supplies, 903 F.2d at 1013). “Even if
the plaintiff lacks good cause, the court has discretion to extend the time for service.”

P:\ORDERS\11-2014\2176MD.wpd

150225.1545

6

Id. (citing Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 325 (5th Cir. 2008)).
III.

ANALYSIS
As explained above, it is undisputed that Plaintiff failed to serve Defendants

within the 120 day window allotted by Rule 4(m). The Court has already extended
the deadline twice for Plaintiff to serve Defendants, and one of those extensions was
after the expiration of the 120 day window. See Order dated Sept. 22, 2014 [Doc.
# 3]; Order dated Dec. 1, 2014 [Doc. # 5]. Plaintiff argues good cause exists for a
third extension of the deadline to serve Defendants because he reasonably relied on
the affidavits from process server Gary Hodges, which stated he served all three
Defendants by delivering a copy of the summonses and Complaint to Randy Scott,
who was authorized to accept service on their behalf. See Response, at 3; Signed
Affidavits of Service dated Dec. 22, 2014.
However, Plaintiff does not meaningfully explain why it was reasonable to rely
on the affidavits and “assume” Randy Scott was authorized to accept service on behalf
of all three Defendants. Indeed, the evidence is at best conflicting regarding what
Plaintiff or counsel knew in December based on these affidavits. Plaintiff’s own
questionable assertion in the Dec. 29 Memorandum that service had not been
perfected on Montier and Huskey contradicts the process server’s assertions in the
affidavits that service was completed. Compare Dec. 29 Memorandum, at 2, with

P:\ORDERS\11-2014\2176MD.wpd

150225.1545

7

Signed Affidavits of Service dated Dec. 22, 2014. Plaintiff also does not explain why
it was reasonable to rely on the process server’s affidavits given that Plaintiff named
a dissolved corporation “Elliot Turbocharger, Inc.” as a defendant in this lawsuit.
Finally, Plaintiff offers no explanation for why he waited until December 10, 2014,
to request issuance of summonses for the first time, more than 120 days after filing the
Complaint and just a little over two weeks before the Court’s second extended
deadline to serve Defendants.
Plaintiff relies on the presumption that a signed return of service of process
affidavit from an impartial process server constitutes prima facie evidence that service
has been completed. See Response, at 3 (citing Aguirre v. CGG Land (U.S.), Inc., Civ.
Action No. 7:14-CV-49, 2014 WL 1385888, at *3 (S.D. Tex. Apr. 9, 2014) (Alvarez,
J.)). This presumption can be overcome by clear and convincing evidence from the
party challenging service showing that service was not effected. Aguirre, 2014 WL
1385888, at *3. In this case, Movants have provided clear and convincing evidence
showing that service has not been completed, and thus the presumption is
inapplicable. Plaintiff has not satisfied his burden to establish good cause for granting
a third extension for service of Defendants.
Plaintiff cites Robinson v. Roxy Inestments, L.P., 249 F.R.D. 485 (S.D. Miss.
2008), for the proposition that “a party’s good faith reliance on a process server’s

P:\ORDERS\11-2014\2176MD.wpd

150225.1545

8

affidavit of service may constitute ‘good cause’ for extension of the time in which to
effect service of process pursuant to Rule 4(m).” Response, at 2-3. This Mississippi
district court decision is not controlling precedent and, in any event, is easily factually
distinguishable from this case. In Robinson, the district court found “no contumacious
or improper conduct on the part of plaintiff” since she had “no reason to doubt” that
the defendant had been served. Robinson, 249 F.R.D. at 487. The Mississippi court,
however, did not actually grant an extension of the deadline for service because the
plaintiff had already corrected the process server’s error and perfected service. Id.
In the case at bar, service remains contested, and the record reflects Plaintiff
evidenced doubt that the process server actually served Defendants. As noted above,
Plaintiff does not offer any explanation or evidence as to why it was reasonable to rely
on the affidavits from the process server stating Randy Scott was authorized to accept
service on behalf of the three named Defendants, especially when Plaintiff, at the
same time, asserted in his Memoranda that service had not been completed on two of
the three Defendants and it was easily ascertainable that the third Defendant had long
ceased to exist as a corporation.
Accordingly, the Court concludes that Plaintiff has not established good cause
exists under Rule 4(m) to further extend the deadline to serve process on Defendants.
The Court also declines to exercise its discretion to extend that deadline. The Court

P:\ORDERS\11-2014\2176MD.wpd

150225.1545

9

already has extended the deadline twice and Plaintiff failed to diligently serve
Defendants.
Because Defendants have not been served and the Court finds good cause does
not exist to extend the deadline for service a third time, the Court grants Movants’
motions to dismiss this case under Rule 12(b)(5) and dismisses this case for failure to
serve Defendants in compliance with Rule 4(m). The Court does not reach Movants’
arguments regarding the alleged substantive deficiencies in the summonses or the
requests for dismissal under Rules 12(b)(2) and 12(b)(4). See Reply, at 6-7.
Finally, Movants and Plaintiff ask the Court to dismiss this case without
prejudice. Reply, at 7; Response, at 5-6. The Court agrees, pursuant to Rule 4(m),
that this case should be dismissed without prejudice.
III.

CONCLUSION AND ORDER
For the reasons stated herein, it is hereby
ORDERED that Non-Party Elliott Company’s Motion to Dismiss for

Insufficient Service of Process, and Lack of Personal Jurisdiction [Doc. # 9] and
Defendants Tommy Montier and Dan Huskey’s Motion to Dismiss for Insufficient
Process, Insufficient Service of Process, and Lack of Personal Jurisdiction [Doc. # 10]
are GRANTED. It is further
ORDERED that this case is DISMISSED without prejudice pursuant to Rule

P:\ORDERS\11-2014\2176MD.wpd

150225.1545

10

4(m) of the Federal Rules of Civil Procedure. It is further
ORDERED that Elliot Company’s Motion to Modify [Doc. # 11] is
GRANTED. The Clerk of the Court is directed to modify the docket entry for
Document # 9 to reflect that the motion to dismiss was filed by Elliot Company.
A separate dismissal order will issue.
SIGNED at Houston, Texas, this 25th day of February, 2015.

P:\ORDERS\11-2014\2176MD.wpd

150225.1545

11