United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE
before the Court is Defendant Cape Fox Corporation's
Motion to Dismiss for Insufficiency of Process against the
following Defendants: Concentric Methods, LLC; Cape Fox
Federal Integrators; Cape Fox Professional Services, LLC;
Navar, Inc.; Cape Fox Government Services; Cape Fox
Facilities Services; Cape Fox Shared Services; Michael Brown;
George Bernardy; William Walker; Bernard Green; Harold
Mitchell; Charles Johnson; Clifford Blair; and Katherine
Milton (collectively, the “Unserved Defendants”).
The Court finds that Cape Fox Corporation's motion should
be denied and Plaintiffs shall complete service on or before
October 31, 2017.
April 16, 2015, Plaintiffs Earline Lahman and Randy Lahman
(“Plaintiffs”) filed this action against Cape Fox
Corporation (“CFC”) and Nationwide Provider
Solutions, LLC (“NPS”), in the 62nd Lamar County
District Court (Dkt. #1, Exhibit C-3). On April 29, 2016, CFC
and NPS filed their Answer, and CFC filed Original
Counterclaims (Dkt. #1, Exhibit C-7). On April 10, 2017,
Plaintiffs filed an Amended Petition dropping NPS as a
defendant and adding it as a plaintiff (Dkt. #1, Exhibit
C-9). The Plaintiffs also added the 15 additional Unserved
Defendants. On May 5, 2017, the matter was removed to this
Court (See Dkt #1).
August 8, 2017, CFC filed this motion to dismiss asserting
that the case should be dismissed against the Unserved
Defendants under Rule 12(b)(5) (Dkt. #17). On September 6,
2017, Plaintiffs filed a response (Dkt. #18). On September
14, 2017, CFC filed a reply (Dkt. #20).
may seek dismissal in a pretrial motion based on any of the
defenses set out in Rule 12(b) of the Federal Rules of Civil
Procedure. Fed.R.Civ.P. 12(b); see also Albany Ins. Co.
v. Almacenadora Somex, 5 F.3d 907, 909 (5th Cir. 1993).
Rules 12(b)(4) and 12(b)(5), respectively, provide defenses
for insufficiency of process and insufficiency of service of
process. Fed.R.Civ.P. 12(b)(4), (5). In addition to
constituting grounds for dismissal, insufficient process and
insufficient service of process also implicate a court's
authority to exercise personal jurisdiction over a defendant.
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344, 350, 119 S.Ct. 1322, 1327, 143 L.Ed.2d 448
(1999) (“Before a . . . court may exercise personal
jurisdiction over a defendant, the procedural requirement of
service of summons must be satisfied.”). Therefore, if
a defendant here was not properly served with process, this
Court cannot exercise jurisdiction over a defendant or this
defendant must raise an objection to the sufficiency of
process or service in his answer or pre-answer motion.
Fed.R.Civ.P. 12(h)(1). If objections to service are not
raised in the answer or pre-answer motion, they are waived.
Resolution Trust Corp. v. Starkey, 41 F.3d 1018,
1021 (5th Cir. 1995). Importantly, however, as long as the
objection is made in a timely fashion, a defendant's
appearance in the suit does not waive the objection to
service. See, e.g., McCarter v. Harris County, No.
H-04-4159, 2006 WL 1281087, at *3 (S.D. Tex. May 5, 2006)
(rejecting the argument that defendant waived grounds for
dismissal because it had filed an answer in the suit).
seeks dismissal based on improper service for the Unserved
Defendants. It is generally accepted that parties lack
standing to seek dismissal of parties other than themselves.
However, “[a] district court sua sponte may
dismiss an action for failure to prosecute or to comply with
any court order.” Larson v. Scott, 157 F.3d
1030, 1031 (5th Cir. 1998); Fed.R.Civ.P. 4(m).
Rule of Civil Procedure 4(c) places the burden on Plaintiffs
to ensure that a defendant is properly served with summons
and a copy of the complaint. Fed.R.Civ.P. 4(c)(1); Carimi
v. Royal Carribbean Cruise Line, Inc., 959 F.2d 1344,
1346 (5th Cir. 1992). In making this determination, the Court
can look outside of the complaint to determine what steps, if
any, a plaintiff took to effect service. Morris v.
Liberty Mut. Ins. Co., No. 08-4247, 2009 WL 1941203, at
*1 (E.D. La. July 7, 2009).
of the Federal Rules of Civil Procedure sets forth the
guidelines to determine what constitutes valid service of
process. Fed.R.Civ.P. 4. In addition to service under the
federal rules, Rule 4(h)(1) allows service of process to be
effectuated in accordance with Rule 4(e)(1), which states
that service of process may be made “following state
law for serving summons in an action brought in courts of
general jurisdiction in the state where the district court is
located or where service is made.” Fed.R.Civ.P.
4(e)(1). Thus, the Court here should look to both Texas and
Federal law to see if service was proper, as Plaintiffs could
have effected service under either. The Texas and Federal
Rules of Civil Procedure both require a properly-executed
summons (or the equivalent) to be served upon the defendant
in order for process to be sufficient. Fed.R.Civ.P. 4(c)(1);
Tex.R.Civ.P. 106(a)(2). The Texas and Federal Rules of Civil
Procedure also both require service to be made upon
designated individuals who are authorized to accept service
of process on behalf of the corporation. Fed.R.Civ.P.
4(h)(1); Tex. Bus. Orgs. Code § 5.255. Under the federal
rules, service of process upon a corporation must be made
upon “an officer, a managing or general agent, or . . .
any other agent authorized by appointment or by law to
receive service of process.” Fed.R.Civ.P. 4(h)(1).
Similarly, Texas allows service of process on a
corporation's registered agent, president, or vice
president. Tex. Bus. Orgs. Code §§ 5.201, 5.255(1).
did not comply with either federal or state rules in
effecting service of process. The record reflects that none
of the Unserved Defendants were served in any manner. Given
the finding that service was not proper, this Court is now
faced with whether dismissal is warranted. If a plaintiff has
not effected proper service within ninety (90) days of filing
the complaint, the Court may either dismiss the action
without prejudice or allow additional time for service.
Fed.R.Civ.P. 4(m); see, e.g., Grant-Brooks v.
Nationscredit Home Equity Servs., No. 3:01-CV- 2327,
2002 WL 424566, at *4-5 (N.D. Tex. Mar. 15, 2002) (quashing
service of process but denying motion to dismiss because
120-day time period to serve defendant had not
more than ninety (90) days have passed since Defendants'
removal of this case, and service has ...