United States District Court, W.D. Texas, San Antonio Division
JORRIE ADAMS, Individually and on behalf of all others similarly situated, Plaintiff,
BRINKERHOFF INSPECTION, INC. d/b/a SMOB, Defendant.
RODRIGUEZ UNITED STATES DISTRICT JUDGE
date, the Court considered Plaintiff's Motion for
Substitute Service of Process (Docket no. 4). Having considered
the motion and the applicable law, Plaintiff's motion is
February 13, 2017, Plaintiff Jorrie Adams filed a complaint
against Defendant Brinkerhoff Inspection, Inc., bringing
individual and collective claims to recover unpaid overtime
wages under the Fair Labor Standards Act and the New Mexico
Minimum Wage Act. Docket no. 1 at 1. Summons was issued as to
Defendant that day. Docket no. 2. After filing, Plaintiff
retained a private process-service company to serve
Defendant. Id. After ninety days from the date of
filing, there was no indication that Defendant had been
properly served. Docket no. 3 at 2. On May 16, 2017, the
Court ordered Plaintiff to show cause as to why the case
should not be dismissed under Rule 4(m) of the Federal Rules
of Civil Procedure for failure to serve Defendant. Docket no.
3 at 1. In response, on May 19, 2017, Plaintiff filed a
Motion for Substitute Service of Process. Docket no. 4.
to Plaintiff's Motion for Substitute Service of Process
is an affidavit from Plaintiff's process server, Randall
A. Shafer. Docket no. 4-1. Shafer states that he attempted to
serve process on Defendant's registered agent, Bront
Bird, on three different occasions. Id. The
affidavit declares that on March 22, 2017, Shafer first
attempted to serve Bird at two Midland addresses (one of
which is Defendant's registered address-2509 N. County
Road 1287, Midland, Texas 79705). Id.; Docket no. 4
at 1. Shafer was informed that Bird was not present and was
rarely at either of those locations. Docket no. 4-1.
He then left his phone number with the receptionist at one
location. Id. The next day, Shafer made another
attempt to serve Defendant but was informed that Bird
“had [his] phone number but was not present.”
Id. On March 30, 2017, Shafer made a third attempt,
to no avail. Id.
Extension of Time to Serve Defendant
4(m) of the Federal Rules of Civil Procedure provides that:
If a defendant is not served within 90 days after the
complaint is filed, the court-on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m).
Rule 4(m), the serving party bears the burden of showing good
cause. Id. If the party can show good cause, a court
must grant an appropriate extension; however, a court may
exercise its discretion to allow an extension even if no good
cause is shown. Thompson v. Brown, 91 F.3d 20, 21
(5th Cir. 1996). To show good cause, a litigant must
demonstrate “at least as much as would be
required to show excusable neglect, as to which simple
inadvertence or mistake of counsel usually does not
suffice.” Winters v. Teledyne Movible Offshore,
Inc., 776 F.2d 1304, 1306 (5th Cir. 1990) (emphasis
original). Additionally, there usually must be “some
showing of good faith on the part of the party seeking an
enlargement and some reasonable basis for
noncompliance within the time specified.” Id.
(emphasis original) (internal quotes omitted).
has demonstrated good cause for the failure to effectuate
proper service within 90 days of filing the complaint.
Shafer's affidavit shows a good faith effort by Plaintiff
to serve Defendant and indicates that Defendant may be trying
to evade service. Shafer's numerous attempts to
personally serve Bird demonstrate good cause for
Plaintiff's failure to properly serve process within the
time allotted by Rule 4(m). For these reasons,
Plaintiff's Motion for Extension of Time to Serve
Defendant is GRANTED. Plaintiff is given until June
24, 2017 to serve Defendants or to show cause as to
why additional time is needed.
also seeks the Court's authorization to serve process on
Defendant through substituted service by leaving the
complaint and summons “with any individual appearing to
be over the age of 18 years who is present at 2509 N. County
Rd. 1287, Midland, Texas ...