Castillo v. Lapeau, L.P.
Filing
11
ORDER GRANTING 10 Motion for Substitute Service of Process. IT IS FURTHER ORDERED that Plaintiff may serve Defendant Lapeau, L.P., by substitute service as set forth herein. IT IS FINALLY ORDERED that service must be completed by October 11, 2022, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Signed by Judge Elizabeth S. Chestney. (nm)
Case 5:22-cv-00735-JKP-ESC Document 11 Filed 09/16/22 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JOSEPH CASTILLO,
Plaintiff,
vs.
LAPEAU, L.P.,
Defendant.
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SA-22-CV-00735-JKP
ORDER
Before the Court in the above-styled cause of action is Plaintiff’s Corrected Motion for
Substitute Service of Process [#10].1 By his motion, Plaintiff asks the Court to permit him to
serve Defendant Lapeau, L.P. by alternative service pursuant to Rule 4(e) of the Federal Rules of
Civil Procedure. According to Plaintiff’s motion, he has attempted to serve Lapeau’s registered
agent, Reagan Freiling, on numerous occasions by personal delivery but has been unsuccessful.
Additionally, although Plaintiff received correspondence from Defendant’s counsel, Michael
Flume, on June 29, 2022, when Plaintiff inquired by email if Mr. Flume had authority to accept
service on behalf of his client, Plaintiff received no response. Plaintiff asks for permission to
serve Lapeau by (1) registered or certified mail, return receipt requested, and (2) by social media,
email to Defendant’s attorney and any email address associated with Mr. Freiling, or any other
technology that would give Defendant reasonable notice as set out in Rule 4(e).
Attached to Plaintiff’s motion is the Affidavit of Christopher McCloy, Plaintiff’s process
server, regarding his efforts to locate and serve Lapeau through its registered agent, Mr. Freiling.
Plaintiff’s Corrected Motion is substantively identical to his initial motion and was filed
to correct a scrivener’s error.
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Case 5:22-cv-00735-JKP-ESC Document 11 Filed 09/16/22 Page 2 of 3
(McCloy Aff. [#9], at 5.)2 Plaintiff also attaches the Texas Secretary of State registration for
Lapeau, listing Mr. Freiling as the registered agent and the address where service was attempted
as the place for service. (Lapeau Registration [#9], at 7.) The Bexar County Central Appraisal
District lists this address as the homestead of Mr. Freiling. (Appraisal Records [#9], at 9.) Mr.
McCloy states that he made attempts at service on Mr. Freiling’s place of residence on July 28,
29, and 30, 2022, as well as August 1 and 2, 2022. (McCloy Aff. [#9], at 5.) At all times, there
was no answer at the door and no sign of anyone present, aside from a car registered to Belinda
Freiling parked in the driveway on two of the service attempts. (Id.)
Federal Rule of Civil Procedure 4(e)(1) provides that “an individual . . . may be served in
a judicial district of the United States 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.”
Fed. R. Civ. P. 4(e)(1). Texas Rule of Civil Procedure 106 provides:
(b) Upon motion supported by affidavit stating 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 stating specifically the
facts showing that service has been attempted under either (a)(1) or (a)(2)
at the location named in such affidavit but has not been successful, the
court may authorize service
(1) by leaving a true copy of the citation, with a copy of the petition
attached, with anyone over sixteen years of age at the location specified in
such affidavit, or
(2) in any other manner that the affidavit or other evidence before the
court shows will be reasonably effective to give the defendant notice of
the suit.
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Plaintiff failed to attach any exhibits to his corrected motion.
undersigned cites the exhibits attached to the original motion.
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Accordingly, the
Case 5:22-cv-00735-JKP-ESC Document 11 Filed 09/16/22 Page 3 of 3
Tex. R. Civ. P. 106(b). Accordingly, if a plaintiff’s attempts to serve a defendant in person are
unsuccessful, a court may authorize substitute service upon receipt of an affidavit satisfying Rule
106(b). See State Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298, 299 (Tex. 1993).
The Court will grant the motion.
Plaintiff has established that Mr. Freiling is the
registered agent of Lapeau and resides at the address where personal service has been attempted
unsuccessfully on five occasions. The Court will therefore grant Plaintiff’s motion and order
substitute service as requested such that Plaintiff may mail a copy of the Complaint and
summons, registered or certified mail, return receipt requested, and by social media and email to
Defendant’s attorney and any email address associated with Mr. Freiling or any other technology
that would give Defendant reasonable notice as permitted by Rule 106 of the Texas Rules of
Civil Procedure and Rule 4(e) of the Federal Rules.
IT IS THEREFORE ORDERED that Plaintiff’s Corrected Motion for Substitute
Service of Process [#10] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff may serve Defendant Lapeau, L.P., by
substitute service as set forth herein.
IT IS FINALLY ORDERED that service must be completed by October 11, 2022,
pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
SIGNED this 16th day of September, 2022.
ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE
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