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Adams v. Brinkerhoff Inspection, Inc.

United States District Court, W.D. Texas, San Antonio Division

May 24, 2017

JORRIE ADAMS, Individually and on behalf of all others similarly situated, Plaintiff,
v.
BRINKERHOFF INSPECTION, INC. d/b/a SMOB, Defendant.

          ORDER

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

         On this date, the Court considered Plaintiff's Motion for Substitute Service of Process (Docket no. 4).[1] Having considered the motion and the applicable law, Plaintiff's motion is GRANTED.

         BACKGROUND

         On 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.

         Attached 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.

         DISCUSSION

         I. Extension of Time to Serve Defendant

         Rule 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).

         Under 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).

         Plaintiff 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.

         II. Substitute Service

         Plaintiff 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 ...


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