United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE JUDGE.
the Court is Defendant AT&T Corporate/Headquarters'
Motion to Dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(5) and 12(b)(6). Doc. 13. For the reasons
presented below, the Court DENIES without
prejudice Defendant's Motion and
QUASHES Plaintiff's previous attempt at
service of process.
LaKeycha Bailey sued Defendant AT&T
Corporate/Headquarters (AT&T) to recover benefits due her
under the terms of her pension plan (the Plan). Doc. 3, Pl.'s
Compl. 1. In her Complaint, Plaintiff alleges that she did
not receive “the same pension options as other
employees that were on the same contract, ” and that
she was compensated under the Plan at a lower rate than her
peers who had less seniority. Doc. 3, Pl.'s Compl. 1.
Defendant filed its Motion to Dismiss and argued that the
Court should dismiss Plaintiff's claims on two
independent grounds: (1) under 12(b)(5) for insufficient
service of process; or (2) under 12(b)(6) because Plaintiff
failed to state a claim on which relief can be granted. Doc.
13, Def.'s Mot. to Dismiss 1. Plaintiff failed to file a
Response to Defendant's Motion. The Motion is ripe for
the Court's review.
Motion to Dismiss Pursuant to Rule 12(b)(5)
Federal Rule of Civil Procedure 4(c)(1), the plaintiff is
responsible for serving the defendant with a complaint and
summons. If a plaintiff performs an insufficient service of
process, the defendant may seek to dismiss the
plaintiff's complaint under Rule 12(b)(5). Cockerham
v. Rose, No. 3:11-CV-277-B, 2011 WL 1515159, at *1 (N.D.
Tex. Apr. 18, 2011).
defendant questions the validity of service of process,
“the plaintiff bears the burden of establishing its
validity.” Carimi v. Royal Carribean Cruise Line,
Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). Where the
alleged defect in the service of process is that the
defendant is misnamed in the summons, a defendant can
challenge service under Rule 12(b)(5) “on the ground
that the wrong party-a party not named in the summons-has
been served.” Fed.R.Civ.P. 4(a)(1)(A); Gartin v.
Par Pharm. Cos., Inc., 289 F. App'x 688, 691 n.3
(5th Cir. 2008).
Pro Se Litigants
examining the issues before the Court, the Court notes that
pro se litigants are expected to comply with the
rules of pleading and the rules of service. See Birl v.
Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (per curiam).
Parties who proceed pro se, however, are often given
more leeway than represented parties in correcting errors in
pleadings and defects in service of process. See Reece v.
Countrywide Home Loans, 250 F. App'x 91, 92 (5th
Cir. 2007). Further, a court must liberally construe a
pro se complaint, taking all well-pleaded
allegations as true. Johnson v. Atkins, 999 F.2d 99,
100 (5th Cir. 1993) (per curiam). Nevertheless, a pro
se plaintiff's complaint "must set forth facts
giving rise to a claim on which relief may be granted."