United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN, UNITED STATES MAGISTRATE JUDGE
Markel Insurance Company filed a Motion to Set Aside Default
Judgment, see Dkt. No. 3, which United States
District Judge Sam A. Lindsay has referred to the undersigned
United States magistrate judge for hearing, if necessary, and
for findings and recommendation, see Dkt. No. 4.
Craig Watkins has not filed a response, and the time to do so
reasons explained below, the Court should grant the Motion to
Set Aside Default Judgment [Dkt. No. 3].
27, 2018 Plaintiff filed his Original Petition in the 14th
Judicial District Court of Dallas County, Texas, styled
Watkins v. Markell Insurance Company, No. DC-08528.
Plaintiff asserted claims against Defendant for violations of
the Texas Deceptive Trade Practices Act and common-law fraud
based on allegations of lack of payment or underpayment of
insurance claims. See Dkt. No. 3-1 at 3-9. The
Original Petition stated:
Defendant MARKELL INSURANCE COMPANY, a Corporation doing
business in Texas, may be served with process through its
Attorney: Chris Avery, Thompson Coe, ONE RIVERWAY STE 1400,
HOUSTON, TEXAS 77056. Service of said Defendant as described
above can be effected by personal service.
Id. at 3.
attempted to serve Defendant by serving its former attorney,
Chris Avery of Thompson, Coe, Cousins & Irons. See
Id. at 11-12 (Citation and Affidavit of Service). The
affidavit of service states that a true copy of the citation
was served on “Attorney Chris Avery”on July 9,
2018, at the law firm's place of business at 1 Riverway
#1400, Houston, TX 77056. See Id. at 11. The
citation is directed to “Attorney Chris Avery” of
“Thomson Coe” and commands him to appear and file
an answer. See Id. at 12. Other than the style of
the case, Defendant's name, address, or the name of any
employee or officer of Defendant do not appear in the
citation. See id.
Avery notified Plaintiff, who represents himself in this
case, that he was not an authorized agent for service of
process on Defendant. See Id. at 15-18, 20
(Affidavit of Chris H. Avery). In a July 20, 2018 letter, Mr.
Next, your petition improperly names me as an agent for
service of process. I am not and have never been an
authorized agent for service of process on behalf of Markel
or any other insurance entity. Texas law clearly requires
that suit be served on a corporation's registered agent,
not any other party. As a result, any attempts to serve the
wrong defendant through the wrong agent are ineffective.
Id. at 20. Renee Maratea, the Manager of Insurance
and Reinsurance Support for Defendant's claims service
manager, attests to the fact that no representative of
Defendant was ever served by Plaintiff in this action and
that Defendant did not authorize Mr. Avery to accept service.
See Id. at 24-26 (Affidavit of Renee Maratea).
August 31, 2018, the state court dismissed the pending action
for want of prosecution. See Id. at 28. On September
12, 2018, Plaintiff filed a motion to reinstate, stating as
grounds that he had inadvertently missed the discovery
deadline. See Id. at 30-33. On December 6, 2018, the
court granted the motion and reinstated the case. See
Id. at 38.
approved default judgment drafts for the state court on
October 30, 2018 and November 27, 2018, which stated that
Defendant had been “duly cited to appear” but
“failed to file an ...