United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE.
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically, Defendant Leander
Independent School District (Leander)'s Motion to Dismiss
for Insufficient Service of Process and Failure to State a
Claim [#9], Plaintiff T.W.'s Response [#10] in
opposition, and Leander's Reply [#28] in support, as well
as Leander's Motion to Dismiss for Lack of Jurisdiction
[#31], Plaintiffs Response [#33] in opposition, and
Leander's Reply [#34] in support. Having reviewed the
documents, the relevant law, the arguments of counsel, and
the case file as a whole, the Court now enters the following
opinion and orders.
an IDEA case. In the administrative proceedings below, the
Special Education Hearing Officer (SEHO) found in favor of
Defendant Leander Independent School District (Leander).
Compl. [#1]. Plaintiff T.W., by next friend K.J.,
subsequently filed a complaint with this Court requesting
review of the SEHO decision. Id. Plaintiffs amended
complaint asserts claims under § 504 and the ADA as well
as under the IDEA. Am. Compl. [#5].
26, 2017, Plaintiff timely filed a complaint requesting
review of the SEHO decision. Compl. [#!]. However, Plaintiff
did not file proof of service of process at that time, and on
September 14, 2017, this Court ordered Plaintiff to file
proof of service of process by September 30 or else have the
action dismissed for failure to prosecute. Order of September
14, 2017 [#4]; see also FED. R. Civ. P. 4(m)
(allowing Court to dismiss action if plaintiff fails to
effect service within 90 days or, in the alternative,
allowing the Court to order service by a particular date). In
a later submission to this Court, Plaintiffs counsel states
she asked Leander to waive service of process on September
28, two days before the Court-imposed deadline for service of
process. Resp. Mot. Dismiss [#10-4] Ex. D. Leander refused.
Plaintiff then attempted to serve Leander on September 29.
Id. [#10-1] Ex. F. Plaintiff states the attempt
failed because the process server could not gain access to
the locked administrative building. Id. Eventually,
Plaintiff managed to serve Leander's general counsel,
Jennifer Wells, on October 2. Id.
moves to dismiss for insufficient service of process, lack of
subject matter jurisdiction, and failure to state a claim on
which relief can be granted. Mot. Dismiss [#9]; Mot. Dismiss
[#31]. Leander also argues Plaintiff should not be allowed to
pursue claims raised in the amended complaint which do not
"relate back" to the original complaint.
Id. The Court disposes of these contentions in turn.
Insufficient Service of Process
moves to dismiss for insufficient service of process on the
ground Plaintiff failed to file within the 90-day period set
forth in Federal Rule of Civil Procedure 4(m). Alternatively,
Leander argues the Court should dismiss for insufficient
service of process on the ground Plaintiff failed to comply
with this Court's September 14, 2017 order mandating
Plaintiff file proof of service by September 30, 2017.
Court declines to dismiss Plaintiffs suit for insufficient
service of process. Rule 4(m) does not mandate the Court
dismiss Plaintiffs suit for failure to effect service within
90 days. Rather, Rule 4(m) gives the Court the option of
either (1) dismissing the action without prejudice, or (2)
ordering service be made within a specified time. In this
instance, the Court ordered Plaintiff to file proof of
service by September 30, 2017. Fed. R. Crv. P. 4(m). After
Leander refused to waive service of process, Plaintiff made a
good faith (albeit dilatory) effort to comply with the
Court's order, eventually serving Leander with a summons
on October 2, 2017. In these circumstances, the Court finds
Plaintiffs suit should not be dismissed for insufficient
Lack of Subject Matter Jurisdiction
moves to dismiss for lack of subject matter jurisdiction on
the ground Plaintiffs suit is barred by the statute of
limitations. It is undisputed Plaintiff filed suit within the
90-day window for appeal of an SEHO decision. See 20
U.S.C. § l4l5(i)(2)(B). However, it is Leander's
contention that by failing to effect service of process in a
timely fashion, Plaintiff allowed the original complaint to
"lapse, " and during this lapse, the statute of
Court has explained above, the Court has found Plaintiffs
service of process, although less than prompt, was not so
dilatory as to merit dismissal of Plaintiff s suit. Insofar
as ' the Court has found Plaintiffs service to be
adequate, it follows that Plaintiffs complaint did not
"lapse" and that therefore, the statute of
limitations did not somehow expire during the pendency of
Plaintiff s lawsuit. In sum, the Court declines to dismiss
for lack of subject matter jurisdiction.