United States District Court, S.D. Texas, Houston Division
MEMORANDUM & OPINION DENYING MOTION TO DISMISS
FOR FAILURE TO DILIGENTLY SERVE
Rosenthal, Chief United States District Judge
court heard argument from counsel on the defendants'
motions to dismiss on April 23, 2018. (Docket Entry No. 35).
The court ruled on the motions, but took under advisement the
Apartment Complex defendants' motion to dismiss based on
the statute of limitations. The court requested supplemental
authorities from Flores and the Apartment Complex defendants
on whether: (1) delaying service through the resolution of a
pending criminal case has been accepted as a valid
explanation for delaying service; and (2) whether prejudice
to the defendant is a factor in the inquiry into diligent
efforts to effect service. The parties submitted their
supplemental authorities. (Docket Entry Nos. 36, 37).
is well established that federal district courts look
‘to state law to ascertain whether service was properly
made prior to removal' . . . .” Scott v.
Cypress Creek Emergency Med. Servs., No. H-06-1436, 2007
U.S. Dist. LEXIS 54632, at *5 (S.D. Tex. July 27, 2007)
(quoting Freight Terminals, Inc. v. Ryder System,
Inc., 461 F.2d 1046, 1052 (5th Cir. 1972)); see
also Wright & Miller, Fed. Prac. & Proc. Civ.
§ 1137 (4th ed.) (“In removed cases, the Rule 4(m)
time period starts to run upon removal to the federal
district court, not the date the action was originated in
state court . . . .”).
has no statutory time period to serve a defendant, as long as
it is before the statute of limitations expires. See,
e.g., $6453.00 v. State, 63 S.W.3d 533, 536
(Tex. App.-Waco 2001, no pet.) (citing Gant v.
DeLeon, 786 S.W.2d 259, 260 (Tex. 1990)). If the
petition is timely filed, a plaintiff may still serve the
defendant after the statute of limitations expires
provided the plaintiff exercised due diligence in attempting
to serve before then. Id.; see also Contreras v.
Chavez, 420 Fed. App'x 379, 381 (5th Cir. 2011)
(“A plaintiff's failure to serve defendant with
process until after the limitations period has expired is
excused only if the plaintiff exercised due diligence in
effectuating service.”). In order to toll the statute
of limitations, a plaintiff must satisfy both
requirements-timely filing and diligent service.
Contreras, 420 Fed. App'x at 381.
diligence is a question of fact. Id. (citing
Saenz v. Keller Indus. of Tex., 951 F.2d 665, 667
(5th Cir. 1992)). “The test for due diligence is
whether the plaintiff (1) acted as an ordinary prudent person
would have under the same circumstances, and (2) was diligent
up until the defendant was served.” Id.
(citing Seagraves v. City of McKinney, 45 S.W.3d
779, 782 (Tex. App.-Dallas 2001, no pet.); Eichel v.
Ullah, 831 S.W.2d 42, 44 (Tex. App.-El Paso 1992, no
writ)). “Extended periods of time in which no attempt
at service of process are made-which are unexplained-as a
matter of law show lack of due diligence.” Id.
(citing Butler v. Ross, 836 S.W.2d 833, 836 (Tex.
App.-Houston [1st Dist.] 1992, no writ); Hansler v.
Mainka, 807 S.W.2d 3, 5 (Tex. App.-Corpus Christi 1991,
no writ)); see also Contreras, 420 Fed. App'x at
381 (Texas courts have found that unexplained delays of more
than four, five, or six months negates due diligence as a
matter of law (collecting cases)); Saenz, 951 F.2d
at 667 (“The determination of due diligence is usually
a fact question; the standard is the ordinary prudent person
standard. However, lack of due diligence may be found as a
matter of law if the plaintiff offers no excuse for his
failure to procure service, or if the plaintiff's excuse
conclusively negates diligence.” (citations omitted)).
When an explanation is offered, “[o]nly in rare
instances have the Texas courts concluded that an excuse
offered by the plaintiffs for failure to procure service
negated the exercise of due diligence as a matter of
law.” Saenz, 951 F.2d at 667.
underlying events in this lawsuit occurred on July 23, 2015.
The two-year statute of limitations period expired on July
23, 2017. See Tex. Civ. Prac. & Rem. Code §
16.003. Flores filed suit in Texas state court on July 25,
2016. The La Estancia defendants submit evidence that the
first and only attempt Flores made to serve them was on
November 3, 2017, more than three months after the
limitations period expired and more than fifteen months after
he filed the case. (Docket Entry No. 23-4).
26, 2017, Flores filed a motion to retain this case in state
court, after the court sent a notice that it would dismiss
for want of prosecution. In that motion, Flores stated that
the defendants had not yet been served, but that he would
promptly request service “upon resolution of the
pending criminal suit.” (Docket Entry No. 23-3 at 2).
Flores now explains that he “waited to request service
until after the completion of the criminal trial
proceeding.” (Id. at 10).
cites two cases that discuss the general standards for due
diligence in service and two cases that discuss the standard
to stay a federal case pending the resolution of a state
criminal case. See Saenz, 951 F.2d at 667;
Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126
(Tex. App.-Texarkana 1986, no writ) (explaining that
diligence is usually a question of fact unless no explanation
is offered or the excuse affirmatively establishes a lack of
reasonable diligence); Reed-Veal v. Encinia,
H.15-2232, 206 U.S. Dist. LEXIS 171045 (S.D. Tex. Mar. 17,
2016); Villani v. Devol, 15-852-JWD-EWD, 2016 U.S.
Dist. LEXIS 47097 (M.D. La. Apr. 7, 2016). Flores argues that
the cases the La Estancia defendants cite in their brief are
inapplicable or are distinguishable on the facts. Flores
argues that they involved “much greater delays in
service than those at issue in the instant case.”
(Docket Entry No. 26 at 9); see Casas v. City of Fort
Worth Police Dep't, No. 4:15-CV-872-O, 2017 U.S.
Dist. LEXIS 136347 (N.D. Tex. May 17, 2017) (no due diligence
when the plaintiff attempted to serve the defendants within
the first 30 days after filing suit and then did nothing for
14 months, stating only that he was trying to “educate
himself” on how to handle a lawsuit);
Contreras, 420 Fed. App'x at 380 (no due
diligence when the plaintiff filed suit one day before the
limitations period expired and neither tried to serve the
defendants nor gave a reason for the delay);
Webster, 5 S.W.3d at 291 (no due diligence when the
plaintiff filed suit on the last day of the two-year
limitations period and took “careless and not
persistent” steps to serve for four months and 10
Estancia defendants did not present the court with any case
law that includes prejudice to the defendant as a factor in
the diligence analysis. Instead, the case law focuses on
whether the plaintiff's excuse and explanation
sufficiently show diligence. See Rodriguez v. Tinsman
& Houser, Inc., 13 S.W.3d 47 (Tex. App.-San Antonio
1999) (“The proffered explanation of miscommunication
is not valid because it does not involve diligence to seek
service of process.”); Slagle v. Prickett, 345
S.W.3d 693 (Tex. App.-El Paso 2011) (“Slagle's
excuse does not demonstrate any steps he took to obtain
service during the three-month period. Rather, he merely
attempts to excuse why he did nothing. But when a defendant
complains of lack of due diligence in service of process, the
plaintiff must explain what steps he took to obtain service,
not explain why he did nothing.”); Numan v. Seafood
Supply Co., No. 05-99-01974-CV, 2001 WL 253866 (Tex.
App.-Dallas 2001) (not designated) (the plaintiffs
“explanation must involve diligence to seek
service of process.”).
are good reasons why a plaintiff would delay service of
process pending the resolution of a related criminal case,
including the protection of his Fifth Amendment rights.
Flores has at least raised a fact issue as to whether he
exercised due diligence in serving the Apartment Complex
defendants. The motion to dismiss based on the statute of
limitations argument is ...