Joe Hand Promotions, Inc. v. Deuce's Rockhouse LLC et al

Filing 6

MEMORANDUM OPINION AND ORDER DENYING without Prejudice 5 Motion for Order of Substituted Service of Process on Defendants. Signed by Judge David C Guaderrama. (mc4)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
JOE HAND PROMOTIONS, INC.

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Plaintiff,

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DEUCE'S ROCKHOUSE LLC,
d/b/a ROCKHOUSE BAR & GRILL, and
GABRIEL REYES SR.,

Defendants.

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EP-17-CV-00116-DCG

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MEMORANDUM OPINION AND ORDER
Presently before the Court is Plaintiff Joe Hand Promotions, Inc.'s ("Plaintiff') "Motion
for Order of Substituted Service of Process on Defendants" (ECF No. 5) ("Motion"). For the
reasons that follow, the Court DENIES WITHOUT PREJUDICE TO REFILING Plaintiff's
Motion.

I. BACKGROUND
On April 17, 2017, Plaintiff brought this lawsuit against Defendants Deuce's Rockhouse
LLC, d/b/a Rockhouse Bar & Grill, a commercial establishment in El Paso, Texas
("Rockhouse") and its managing member and registered agent Gabriel Reyes, Sr. ("Reyes")
(collectively "Defendants"). The Complaint alleges violations of the Federal Communications
Act of 1934. 1 According to Plaintiff, it held the exclusive commercial distribution rights to the
telecast and television broadcast of Ultimate Fighting Championship® 183: Silva vs. Diaz
("Program") on January 31, 2015.2 Plaintiff alleges that Defendants transmitted, divulged, and

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Compl. , 4, ECF No. 1.

2

ld. ,~ 1, 8.

published the Program to the patrons at Rockhouse, without authorization or license from
Plaintiff. 3
On April 18, 2017, the District Clerk issued two summons at Plaintiff's request: one for
Reyes, and the other for Rockhouse by serving its registered agent, Reyes. See Summons, ECF
Nos. 3, 4. On May 16, 2017, Plaintiff filed this Motion. By its Motion, Plaintiff asks the Court
to authorize substitute service on Defendants Rockhouse and Reyes, pursuant to Federal Rules of
Civil Procedure 4(e)(1) and 4(h), and Texas law.

II. APPLICABLE LAW
Federal Rule of Civil Procedure 4(e)(l), which governs service of process on an
individual defendant residing within a judicial district, provides, in pertinent part, that service
may be effected 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," as here, Texas. Fed. R. Civ.
P. 4(e)(1). Likewise, Federal Rule of Civil Procedure 4(h), which governs service of process on
a corporation, or a partnership or other unincorporated association, provides that service of
process may be completed by following state law for serving a summons. See Fed. R. Civ. P.
4(h)(1)(A) (cross-referencing Fed. R. Civ. P. 4(e)(1)).
In tum, Texas Rule of Civil Procedure 106(a) provides two methods for effecting
personal service on a defendant: (1) by personal delivery or (2) by registered or certified mail,
return receipt requested. Tex. R. Civ. P. 106(a)(l)-(2). ''A corporation," however, "is not a
person capable of accepting process on its own behalf, and it therefore must be served through an
agent." Paramount Credit Inc. v. Montgomery, 420 S.W.3d 226,230 (Tex.App.-Houston [1st
Dist.] 2013, no pet.). A limited liability corporation, such as Defendant Rockhouse, may be
served through its registered agent or other agents authorized to receive service such as its
3

ld. ~~ 11-12.
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managers and members. Tex. Bus. Orgs. Code Ann. §§ 5.201(a), 5.255(3). Such agents may be
served by either of the two methods provided in Ru1e 106(a). See, e.g., Copeland v. State Farm

Ins. Co., 657 F. App'x 237, 239 (5th Cir. 2016) (unpublished) (per curiam) ("Under Texas law,
service may be effectuated on a corporation's president, vice-president, or registered agent by
certified mail." (citing Tex. R. Civ. P. 106(a))); Master Capital Sols. Corp. v. Araujo, 456
S.W.3d 636, 639 (Tex. App.-El Paso 2015, no pet.) ("[A] corporation [may be] served by
registered or certified mail as authorized by Rule 106.").
Texas Rule of Civil Procedure 106(b), on the other hand, provides that substitute service
may be effected: (1) by leaving a copy of the service documents with anyone over sixteen years
of age or (2) in any other manner deemed to be reasonably effective to give the defendant notice.
Tex. R. Civ. P. 106(b)(1)-(2). A corporation's agents may also be served by these substitute
methods. See BH1T Enter. Inc., v. Brickhouse Cafe & Lounge, LLC, --- F.3d ----,2017 WL
2262486, at *4 (5th Cir. May 24, 2017) ("Section 5.256 ... explains that '[t]his chapter does not
preclude other means of service of process ... on a domestic ... entity as provided by other
law.' Rule 106(b)(2) is, of course, other law, and the procedure laid out in Section 5.251(1)(B)
does not preclude it.").
However, Texas law prefers personal service over substitute service, because greater
reliability inheres in personal service. Taylor v. State, 293 S.W.3d 913, 915-16 (Tex. App.Austin 2009, no pet.). Thus, only after service by one of the two methods provided in Rule
106(a) fails, may a court, upon a motion supported by proper affidavit, authorize substitute
service. State Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298,298-99 (Tex. 1993). The
affidavit must:
[S]tat[e] 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 stat[e]

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specifically the facts showing that service has been attempted under either (a)(l)
[personal delivery] or (a)(2) [registered or certified mail] at the location named in
such affidavit but has not been successful.
Tex. R. Civ. P. 106(b). The affidavit must strictly comply with the requirements of Rule 106(b),
"demonstrating the necessity for other than personal service." Wilson v. Dunn, 800 S.W.2d 833,
836 (Tex. 1990); see also Amato v. Hernandez, 981 S.W.2d 947,949 (Tex. App.-Houston [1st
Dist.] 1998, no pet.) ("'Strict compliance' means literal compliance with the ruleD.").

III. DISCUSSION
Plaintiff states that several unsuccessful attempts were made to serve Reyes individually
and as Rockhouse's registered agent at 12628 Tierra Pera Ct., El Paso, Texas 79938 (the Tierra
Pera address). See Mot. at , 9. In support of its Motion, Plaintiff submitted exhibits and an
affidavit by Elvira Arrellanes, the process server. Id., Exs. A (exhibits), B (exhibits}, C
(Arrellanes Aff.). According to documents from the Texas Secretary of State, Rockhouse's
registered office is located at the Tierra Pera address and Reyes is its registered agent and
managing member. ld, Ex. A. The documents also list Tierra Pera as his address. ld Further,
according to documents from the El Paso Central Appraisal District, Reyes is the owner of the
property located at that address. ld, Ex. B. Ms. Arrellanes affirms that a neighbor at the Tierra
Pera address verifie~ that Reyes lives there. /d., Ex. C. Further, she declares that between April
26 and May 9, 2017, she made six unsuccessful attempts to serve Defendants at that address. /d.
Consequently, Plaintiff seeks the Court's permission to effect substitute service on
Defendants:
(1) [B]y leaving a copy of the Summons with a copy of the Complaint with
anyone over sixteen years of age at the property located at 12628 Tierra Pera Ct.,
El Paso, Texas 79938, (2) by affixing a copy of the Summons with a copy of the
Complaint attached to the door of the property located at 12628 Tierra Pera Ct., El
Paso, Texas 79938, or (3) by forwarding a copy of the Summons with a copy of

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the Complaint by registered or certified mail, return receipt requested to
Defendants at 12628 Tierra Pera Ct., El Paso, Texas 79938.

Mot. ~ 10 (emphasis added).
For at least two reasons, the Court finds that Plaintiff's Motion is not well taken. First,
Plaintiff requests, as an alternative method, substitute service by certified mail, return receipt
requested. However, as Plaintiff notes, see Mot.~ 6, Rule 106(a) provides for that method of
service as a matter of right, and therefore, leave of the Court is not necessary. See Tex. R. Civ.
P. 106(a)(2) ("[T]he citation shall be served ... by ... mailing to the defendant by registered or
certified mail, return receipt requested, a true copy of the citation with a copy of the petition
attached thereto."); see also Copeland, 651 F. App'x at 239, supra. The Motion fails to explain
why leave is nonetheless necessary.
Second, for purposes of Rule 106(b), the Court finds that Plaintiff has not exercised
reasonable diligence in effecting personal service. See In re E.R., 385 S.W.3d 552, 564 (Tex.
2012) ("We have said that "[i]fpersonal service can be effected by the exercise of reasonable
diligence, substituted service is not to be resorted to.'" (quoting Sgitcovich v. Sgitcovich, 150
Tex. 398,241 S.W.2d 142, 147 (1951))). The affidavit indicates that on four out of six
occasions, the process server attempted service at the Tierra Pera address, a residential address,
during business hours: to wit, at 8:45a.m., 11:26 a.m., 12:15 p.m., and 12:22 p.m. It is entirely
possible that Mr. Reyes was, instead, at work at Rockhouse at those times. Cj Coronado v.
Norman, Ill S.W.3d 838, 842 (Tex. App.-Eastland 2003, pet. denied) (holding substituted

service was supported by an insufficient affidavit and stating that: "Every attempt at personal
service in this case may have been while appellant was at work. When told that appellant 'was
not there,' the process server apparently did not try to find out where appellant could be located
or when he would return."). Rockhouse, according to the Complaint, is located at 9828 Montana

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Ave., Suite D, El Paso, Texas, see Compl. tj[ 2(f); yet, Plaintiff made not a single attempt to effect
personal service at that address. Cj J&J Sports Prods., Inc. v. Lava Entm 't Grp. LLC, No. EP16-CV-00294-DCG, 2017 WL 837685, at *1 (W.D. Tex. Mar. 1, 2017) (Guaderrama, J.)
(granting motion for substitute service, where affidavits showed that multiple attempts to serve
were made at the defendant's home address and at his work addresses).
The Court therefore denies Plaintiff's Motion. See Furst v. Smith, 176 S.W.3d 864, 870
n.5 {Tex. App.-Houston [1st Dist.] 2005, no pet.) ("[O]n receipt of an affidavit that satisfies
rule 106(b) the trial court 'may' and, therefore, need not, authorize substituted service."
(emphasis in original) (quoting State Farm Fire & Cas. Co., 868 S.W.2d at 299)). Plaintiff may
refile a motion for substitute service upon addressing the deficiencies discussed above.

IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Joe Hand Promotions, Inc.'s
("Plaintiff') "Motion for Order of Substituted Service of Process on Defendants" (ECF No. 5) is

DENIED WITHOUT PREJUDICE. Plaintiff may refile such a motion upon curing the
deficiencies mentioned elsewhere in this Opinion.

So ORDERED and SIGNED this

.i1!::

day of June 2017.

UNITED STATES DISTRICT JUDGE

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