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Smith v. North Texas Maintenance, Inc.

United States District Court, E.D. Texas, Tyler Division

December 29, 2017

KENNETH SMITH, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff,
v.
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

         Before 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.

         I. BACKGROUND

         On 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. See id.

         NTMI is 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.

         The 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 residency. Id.

         Following 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.

         II. LEGAL STANDARD

         Insufficient 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.”).

         Rule 4 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:

         (2) 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 ...

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