Cline v. Texas Parole Board et al

Filing 25

REPORT AND RECOMMENDATIONS Granting Defendants Lathum, Okwu and Douglas's 22 Motion to Quash. RECOMMENDATION that the Districtr Court DENY Cline's 20 Motion for Default Judgment. Signed by Judge Andrew W. Austin. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DANNY CLINE
v.
TEXAS PAROLE BOARD, et al.

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A-13-CV-794-LY-AWA

ORDER AND REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Plaintiff Danny Cline’s (“Cline”) Motion for Default Judgment (Dkt.

No. 20); Defendants Janet Lathum, Sunday Okwu, and Anita Douglas’s (“Movants”) Motion to
Quash (Dkt. No. 22); and Cline’s Response to Movants’ Motion to Quash (Dkt. No. 23). The
District Court referred the above, dispositive motion to the undersigned Magistrate Judge for a
report and recommendation and the above, nondispositive motion to the undersigned Magistrate
Judge for resolution pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules.
In their motion, Movants argue that Cline has failed to follow the proper procedure for
effecting service under both state and federal law. More specifically, Movants contend that Cline
has failed to properly effect service because he personally mailed the summons. See Dkt. No. 22,
Exhibit A. In response, Cline submits that Movants have waived any objections to service by not
raising their objections within thirty days. Dkt. No. 23. Cline emphasizes that Movants are not
complaining that they have not received a copy of the summons and complaint, but merely that they
were not served properly. Id.
After reviewing the relevant case law and the record in this case, the Court agrees with
Movants. Both the federal and state rules are unambiguous in stating that a person who is a party
to a particular lawsuit may not effect service of the summons and complaint. See FED. R. CIV. P.

4(c)(2); TEX. R. CIV. P. 103. Federal Rules of Civil Procedure 4(c)(2) explicitly provides that
service may be effected by “[a]ny person who is at least 18 years old and not a party” to the suit.
In this case, the record clearly demonstrates that Cline was the individual who mailed the summons
and complaint to Movants in this instance. Dkt. No. 22, Exhibit A. However, Cline is the plaintiff
in this suit and consequently, cannot effect service. Furthermore, in this Court’s previous order
directing Cline to serve Movants, see Dkt. No. 10, the Court strongly encouraged Cline to consult
the Western District of Texas’s Pro Se Manual (“Manual”), and provided the link for the manual.
Among other things, it outlines the process for serving a summons. See, STEP-BY-STEP GUIDE at
14 (Apr. 21, 2009), available at http://www.txwd.uscourts.gov/ProSe/Documents/prosemanual.pdf.
To the extent Cline argues that Movants have waived any objections to service by failing to
respond within 30 days, his claim is misguided. First, Cline cites no legal authority for his assertion
that Movants waived their objections when they failed to file them within 30 days. Rather,
objections to “service of process must be raised in a timely fashion, i.e., as a party’s first pleading
in the case, or they are waived.” See Broadcast Music, Inc. v. M.T.S. Enter., Inc., 811 F.2d 278, 281
(5th Cir. 1987) (emphasis added). Additionally, “objections to service are [also] waived if not raised
in the answer or pre-answer motion.” Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1021 (5th
Cir. 1995). Here, the Motion to Quash was the first pleading filed by Movants in this case. In the
motion, Movants specifically raised issues of improper service. See Dkt. No. 22. Thus, while it
would certainly have been better practice for Movants to have filed their motion earlier, they have
not waived their objections to proper service.
Accordingly, the Court hereby GRANTS Defendants Janet Lathum, Sunday Okwu, and
Anita Douglas’s Motion to Quash (Dkt. No. 22). The Court further RECOMMENDS that the
District Judge DENY Cline’s Motion for Default Judgment (Dkt. No. 20).

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I. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this the 27th day of August, 2014.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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