United States District Court, E.D. Texas, Tyler Division
KENNETH SMITH, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff,
NORTH TEXAS MAINTENANCE, INC., A.L. HELMCAMP, INC. AND CLINT HEMBY, INDIVIDUALLY, Defendants.
MEMORANDUM OPINION AN ORDER
KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion to Reconsider Motion for
Alternative Service (the “Motion to Reconsider”)
(Dkt. 9). As set forth below, the Court finds the Motion to
Reconsider (Dkt. 9) is GRANTED.
November 29, 2017, Plaintiff filed a Motion for Alternative
Service of Process (the “First Motion”) (Dkt. 7),
which the Court granted in part and denied in part.
See Dkt. 8. The Court allowed service on Defendants
North Texas Maintenance, Inc. (“NTMI”) and
Defendant Clint Hemby (“Hemby”) by leaving a copy
of the complaint and summons with any individual appearing to
be over the age of eighteen years who was present at 415
Private Road 206, Bonham, Texas, 75418. See id.
However, based on the information before it at the time, the
Court declined to allow Plaintiff to serve Defendants NTMI
and Hemby by posting the complaint and summons on the front
entrance of 415 Private Road 206, Bonham, Texas, 75418.
a corporation organized under the laws of Texas, and is thus
required to register with the Texas Secretary of State. The
corporate address listed for NTMI is 415 Private Road 206,
Bonham, Texas, 75418 (the “Private Road 206
Address”). See Dkt. 7. Hemby is listed as
NTMI's registered agent for service of process with an
address of 4321 CR 2610, Bonham, Texas, 75418 (the “CR
2610 Address”). According to the record, the CR 2610
Address appears to have been abandoned. See Dkts. 7,
7-1, and 9-1.
record in this case indicates that Plaintiff retained Robert
L. Crow (“Crow”), a private process server, to
effect service on Defendants NTMI and Hemby. Plaintiff's
First Motion (Dkt. 7), supported by Crow's declaration
(Dkts. 7-1 and 9-1), avers that Plaintiff has made multiple
attempts to effect service on NTMI and Hemby. Crow made seven
attempts to serve process, including two attempts to serve
Hemby, as NTMI's registered agent, at the CR 2610 Address
and five additional attempts to serve process at the Private
Road 206 Address. Crow observed that vehicles at the Private
Road 206 Address are registered to NTMI and/or Hemby.
See Dkt. 9-1. Crow also confirmed that Hemby is the
owner of the Private Road 206 Address. See id.
Crow's declaration also notes that the Private Road 206
Address has no close-by neighbors with whom to verify
the Court's Order dated December 7, 2017, Plaintiff hired
another private process server, Byron Mitchell
(“Mitchell). See Dkt. 9. According to
Mitchell's declaration (Dkt. 9-2), no one answered the
door after he attempted to serve process four different times
at the Private Road 206 Address. See id. Plaintiff
now files the present Motion for Reconsideration seeking to
allow service of the complaint and summons for Defendants
NTMI and Hemby by posting on the front entrance of the
Private Road 206 Address. See Dkt. 9.
process and insufficient service of process 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 (1999)
(“Before a . . . court may exercise personal
jurisdiction over a defendant, the procedural requirement of
service of summons must be satisfied.”).
of the Federal Rules of Civil Procedure sets forth the
guidelines to determine what constitutes valid service of
process. Fed.R.Civ.P. 4. Under Rule 4(e)(2), an individual
(such as Defendant Hemby) may be served by:
doing any of the following:
(A) delivering a copy of the summons and of the complaint to
the individual personally;
(B) leaving a copy of each at the individual's dwelling
or usual place of abode with someone of suitable age and