United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court is Defendant Officer Michael Neel's
(“Neel”) motion to dismiss, (Dkt. 18), and
responsive briefing. Having considered the parties'
submissions, the record, and applicable law, the Court will
deny the motion.
Tyrone Stafford (“Stafford”) brings this suit
against Neel, a police officer employed by the Austin Police
Department, under 42 U.S.C. § 1983 for violations of his
constitutional rights. Stafford alleges that in September
2016, at 3:00 a.m., he pulled up to a red light at the
intersection of MLK and Chicon on his way home. (Pl. Supp.,
Dkt. 6, at 1). Neel was stopped at the light. (Id.).
According to Stafford, the intersection was on route from
“the downtown district of Austin” where
“there were several cars of Black people going the same
route they usually take from leaving after the club, ”
and there were “cars with amplified music and rims
everywhere.” (Resp., Dkt. 19, at 2). Stafford alleges
that when he pulled up to the red light, he “looked at
Officer Neel, ” Neel looked back, and when the light
turned green, Neel pulled him over. (Id.). Stafford
claims Neel pulled him over merely because he had looked at
him; Neel claims he pulled Stafford over because his music
was too loud. (Id.; Mot., Dkt. 18, at 5-6). Stafford
alleges that the traffic stop by Neel violated his
constitutional rights. (Compl., Dkt. 1, at 8; Pl. Supp., Dkt.
6, at 1). Neel has moved to dismiss Stafford's claims
against him under Federal Rules of Civil Procedure 12(b)(5)
and 12(b)(6). (Mot., Dkt. 18).
Rule 12(b)(5) Motion
motion to dismiss pursuant to Rule 12(b)(5) turns on the
legal sufficiency of the service of process. Quinn v.
Miller, 470 Fed.Appx. 321, 323 (5th Cir. 2012). The
serving party has the burden of demonstrating the validity of
the service. Id. (citing Carimi v. Royal
Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th
Cir. 1992)). If the serving party fails to meet its burden,
the district court may quash the service and dismiss without
prejudice all claims against the improperly served defendant.
See Gartin v. Par Pharm. Companies, Inc., 289
Fed.Appx. 688, 691 (5th Cir. 2008).
is proceeding pro se in this case. On November 28,
2018, the Court ordered the Clerk of Court to reissue summons
to Neel and directed the United States Marshals to serve him.
(Dkt. 14). The Marshals attempted to served Neel by certified
mail by delivering the summons to an individual identified as
“Jimmy Petto (SP) Agent” on December 4. (Dkt.
17). Neel's counsel argues that “[c]ertified mail
requires the signature of the Defendant to effectuate proper
service, ” (Reply, Dkt. 23, at 1), and service was
never completed because Neel did not sign the return receipt
for the summons; Petto did. (Mot., Dkt. 18, at 2-3). She is
4(e) of the Federal Rules of Civil Procedure permits service
upon an individual within a district of the United States by
“delivering a copy of [the summons and complaint] to an
agent authorized by appointment or by law to receive service
of process.” Fed. R Civ. P. 4(e)(2)(C). Petto appears
to be an agent authorized to receive service of process for
Neel-he is designated as an “SP Agent.” (Return
Receipt, Dkt. 17, at 1). Neel's counsel ignores this
fact. Instead, she confusingly argues that “[t]he
certified mail letters were received by an ‘unknown
agent' at the Austin Police Department, presumably the
person in charge of checking the mail on December 4, 2018.
The return receipt was signed by Jimmy Petto, not Officer
Neel-the named Defendant, as is required under Texas Rule of
Civil Procedure 107(c).” (Mot, Dkt. 18, at 3). It is
unclear why the signor is described as an “unknown
agent, ” since the return receipt is clearly signed by
Petto. (See Return Recipt, Dkt. 17). And Neel's
counsel neglects to mention that Petto is designated as an
“SP Agent.” (Id. at 1).
the single case on which Neel's counsel relies for her
argument that only Neel could sign the return receipt
announces no such requirement; rather, it directly
contradicts it. In Ayika v. Sutton, 378 Fed.Appx.
432 (5th Cir. 2010), the Fifth Circuit upheld a district
court's dismissal of a complaint without prejudice for
lack of service of process. The court explained that service
must comply with Federal Rule of Civil Procedure 4(e).
Id. at 433. That rule provides four independent
means of completing service:
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is made;
(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