United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
Christina A. Bryan, United States Magistrate Judge
employment discrimination case is before the court on the
Motion to Dismiss of Individual Defendants Jonathan
Hamp-Adams, Thomas Brun Larsen, Paddi Riopelle, Chua Nguyen,
Steve Marshall, Billy Baxter, Lonnie Palla, and Terry Jalufka
(Individual Defendants). Dkt.
Plaintiff filed a late response. See Loc. R. S.D.
TEX. 7.3 (opposed motions will be submitted to the judge 21
days from filing), which the court has nonetheless
considered. The court recommends that Individual
Defendants' motion be granted, and the case against each
of them be dismissed without prejudice.
Legal Standards for Service of Process and Rule 12(b)(5)
Motion To Dismiss
court lacks personal jurisdiction over a defendant unless
that defendant has been served with a summons and complaint
in accordance with Federal Rule of Civil Procedure 4.
Kruger v. Hartsfield, Civil Action No.
3:17-CV-01220, 2018 WL 2090743, *2 (N.D. Tex. April 13,
2018); Hicks v. Dallas Cty. Community Colleges,
Civil Action No. 3:17-CV-809, 2018 WL 2271174 * 3 (N.D. Tex.
April 25, 2018). Federal Rule of Civil Procedure 4(m)
requires a plaintiff to effect service on defendants within
120 days after filing a complaint, unless the plaintiff can
show good cause for the failure to do so. Thrasher v.
City of Amarillo, 709 F.3d 509, 512 (5th Cir.
2013). Neither a litigant's pro se status, nor ignorance
of the Federal Rules of Civi] Procedure, will excuse the
failure to effect timely service on a defendant. Id.; May
v. Texas by Cascos, Civil Action No. 5:16-cv-238, 2017
WL 7513550, at *2 (N.D. Tex. Nov. 27, 2017).
Rule of Civil Procedure 12(b)(5) permits a named defendant to
challenge proper service of the summons and complaint. Once a
defendant raises a Rule 12(b)(5) challenge, the plaintiff
must show that service was proper. Kruger, 2018 WL
2090743, at *2; May, 2017 WL 7513550, at *2. When
ruling on a 12(b)(5) motion, the court enjoys broad
discretion to dismiss the action without prejudice.
Kruger, 2018 WL 2090743, at *4.
Plaintiff Has Failed to Show Proper Service
filed his original complaint against Grundfos CBS and the
Individual Defendants on February 23, 2018 and caused a
summons to be issued for each of the Individual Defendants on
May 11, 2018. The Return of Service form on file for each
Individual Defendant states that a summons was served on
"Ana Guel, who is designated by law to accept process on
behalf of CT Corporation, Wolters Kluwer on
05/17/2018[.]" See Dkts. 11-18. Nothing on the
Return of Service forms, in the record, or in Plaintiffs
Response, demonstrates that Ana Guel is an agent authorized
to accept service for any Individual Defendant. To the
contrary, each of the Individual Defendants submitted a
declaration stating that he does not have a registered agent
for service of process, and that neither Ana Guel nor Wolters
Kluwer are authorized to accept service on his behalf.
See Declarations, Dkts. 42-1-42-9, 43.
response to the Defendants' Rule 12(b)(5) motion includes
copies of emails he sent to counsel for Grundfos in late
April and early May, asking counsel to accept service on
behalf of the Individual Defendants or, alternatively, to
provide last known addresses. Dkt. 44, at 5-15. Grundfos'
counsel informed Plaintiff in an email that he did not have
authority to accept service on behalf of any defendant named
in the lawsuit. Dkt. 44, at 11.
response to the motion to dismiss fails to demonstrate any
attempt to serve the Individual Defendants after May 17,
2018. On May 24, 2018 Plaintiff filed amotion for additional
time to effect service, which the court granted on June 27,
2018. Dkt. 31. On June 29, 2018, Plaintiff filed a second
motion for extension of time, and the court signed an order
granting Plaintiff until August 23, 2018 to serve all
Defendants. Dkt. 33. Also on June 29, 2018, Plaintiff left
envelopes with the clerk's office at the federal court,
noting that he did not have addresses for the individuals.
Dkt. 34. After the August 23, 2018 deadline expired,
Plaintiff did not request more time or ask for approval of a
substituted method of service.
pro se status and lack of knowledge of the Federal Rules of
Civil Procedure do not constitute good cause to grant a third
extension of time. Neither does Grundfos' counsel's
failure to provide last known addresses for individuals
constitute good cause for Plaintiffs failure to serve the
Individual Defendants. Because Plaintiff has failed to show
proper service or good cause for failing to timely serve the
Individual Defendants, Plaintiff s claims against the
Individual Defendants should be dismissed pursuant to Rule
12(b)(5). See May, 2017 WL 7513550, at *4 n.4.
(noting that dismissal without prejudice was warranted where
an extension of time was previously granted and pro se
defendant still failed to comply with applicable rules);
Thrasher, 709 F.3d at 512 ("In Systems
Signs Supplies v. U.S. Department of Justice, Washington,
D.C., we held that the district court did not abuse its
discretion in finding that a litigant failed to show good
cause, despite the litigant's pro se status, his multiple
attempts to serve defendants within the statutory period, and
the fact that defendants has actual notice of the suit."
(internal citations in footnotes omitted)).
Conclusion and Recommendation
filed this case almost a year ago and has not served the
Individual Defendants despite two extensions of time.
Therefore, the court RECOMMENDS that Defendants' Rule
12(b)(5) motion to dismiss be GRANTED and this case be
DISMISSED without prejudice.
Clerk of the Court shall send copies of the memorandum and
recommendation to the respective parties, who will then have
fourteen days to file written objections, pursuant to 28
U.S.C. § 636(b)(1)(c). Failure to file written
objections within the time period provided will bar an
aggrieved party from attacking the factual findings and legal
conclusions on appeal. Douglass v. United Servs. Auto.
Ass'n, 19 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc), superseded by statute on other grounds.
original of any written objections shall be filed with the
United States District Clerk, P.O. Box 61010, Houston, Texas
77208; copies of any such objections shall be delivered to
the chambers of Judge Vanessa D. ...