United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant Juana S. Acosta's Amended Motion
to Dismiss Plaintiff's Third Amended Complaint under
Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). Mot.
(ECF No. 58). For the reasons stated below, the District
Court should GRANT Defendant's motion and DISMISS
Plaintiff's claims against her with prejudice.
filed his original Complaint on November 22, 2017. Compl.
(ECF No. 3). Less than a month later, he filed an Amended
Complaint. Am. Compl. (ECF No. 6). Ten months after that,
Plaintiff filed a Second Amended Complaint without leave of
court, causing Defendants to file a motion for clarification
regarding the state of the pleadings. Sec. Am. Compl. (ECF
No. 38); see Order (ECF No. 53). As a result, the
Court granted Plaintiff one final opportunity to amend his
complaint and plead his case. Order (ECF No. 47). In
response, Plaintiff filed his Third Amended Complaint, the
live pleading in this case, on December 17, 2018. Third Am.
Compl. (ECF No. 49).
Juana S. Acosta moves to dismiss Plaintiff's claims
against her under Rules 12(b)(5) and 12(b)(6). Plaintiff
asserts more than 23 claims against 42 Defendants in his
Third Amended Complaint, and it is unclear exactly which
claims he brings against Defendant Acosta. Other than within
the list of “Parties, ” Acosta is only mentioned
once in the Third Amended Complaint. Third Am. Compl. 7, 15.
Her name appears in the “Facts” section, which
provides, “Unknown Defendants and Juana Saloma Acosta
conspired to defame Petitioner's character in order to
create more work for themselves, thereby causing them to gain
unjust enrichment.” Id. 15. Defendant's
Motion is fully briefed and ripe for determination.
Standards and Analysis 12(b)(5)
of process, under longstanding tradition in our system of
justice, is fundamental to any procedural imposition on a
named defendant.” Murphy Bros. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 350 (1999). When a
defendant has not been properly served, and service has not
been waived, “a court ordinarily may not exercise power
over a party the complaint names as defendant.”
Id. (citing Omni Capital Int'l, Ltd. v.
Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)). A
motion to dismiss under 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) (per
curiam). “Generally speaking, ‘[a]n objection
under Rule 12(b)(4) concerns the form of the process rather
than the manner or method of its service,' while a
‘Rule 12(b)(5) motion challenges the mode of delivery
or the lack of delivery of the summons and
complaint.'” Gartin v. Par Pharm. Cos.,
289 Fed.Appx. 688, 691 n.3 (5th Cir. 2008) (per curiam)
(quoting 5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure: Civil 3d § 1353).
“Once the validity of service has been contested, the
plaintiff bears the burden of establishing its
validity.” In re Katrina Canal Breaches
Litig., 309 Fed.Appx. 833, 835 (5th Cir. 2009) (per
curiam) (citing Carimi v. Royal Carribean Cruise Line,
Inc., 959 F.2d 1344, 1346 (5th Cir. 1992)). When the
serving party fails to meet this burden, the district court
may exercise its discretion to quash the service and
“dismiss without prejudice all claims against the
improperly-served defendants.” Lucky v.
Haynes, 2013 WL 3054032, at *2 (N.D. Tex. June 18, 2013)
(citing Gartin, 289 Fed.Appx. at 691-92).
“Pro se status does not excuse a
litigant's complete failure to effect service.”
Sys. Signs Supplies v. U.S. Dep't of Justice,
903 F.2d 1011, 1013 (5th Cir. 1990) (per curiam) (citing
Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.
1988) (“‘[T]he right of self-representation does
not exempt a party from compliance with relevant rules of
procedural and substantive law.'”)).
Acosta moves to dismiss Plaintiff's Third Amended
Complaint under Rule 12(b)(5). Acosta contends that Plaintiff
failed to comply with Fed.R.Civ.P. 4(e) because “he
personally mailed the Amended Complaint by certified
mail” to her work address without a summons. Mot. 4.
Further, Acosta asserts that Plaintiff never served on her a
copy of his Third Amended Complaint, the live pleading.
the Court determines that Plaintiff's claims against
Acosta should be dismissed under Rule 12(b)(6) for failure to
state a claim, the Court need not reach Defendant's
argument for dismissal under Rule 12(b)(5) for insufficiency
of service of process. Roque v. AT & T's
Inc., 2013 WL 3832692, at *1 n.2 (E.D. La. July 23,
2013) (citing Bova v. Pipefitters & Plumbers Local
60, AFL-CIO, 554 F.2d 226, 227-28 & n.7 (5th Cir.
1977) (concluding that, because plaintiff failed to state a
claim on which relief could be granted, it was
“unnecessary to decide whether several of the
defendants were properly subjected to the personal
jurisdiction of the district court”); Harris v.
Holder, 885 F.Supp.2d 390, 396 n.4 (D.D.C. 2012)
(declining to address defendants' motions to dismiss
under Rules 12(b)(2), 12(b)(3), 12(b)(4), and 12(b)(5)
because the complaint failed to state a claim on which relief
could be granted)).
deciding a 12(b)(6) motion for failure to state a claim, the
court “accepts all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.”
In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007) (quotation marks and citation omitted).
To survive Defendant's Motion to Dismiss, therefore,
Plaintiff's Complaint must contain sufficient factual
matter to state a claim for relief that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “To be plausible, the complaint's
‘[f]actual allegations must be enough to raise a right
to relief above the speculative level.'” In re
Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210
(5th Cir. 2010) (quoting Twombly, 550 U.S. at 555).
This pleading standard does not require
“‘detailed factual allegations, '” but
it does demand more than an unadorned accusation devoid of
factual support. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 555).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw a
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (citing
Twombly, 550 U.S. at 556). “[A] formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555 (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
“While legal conclusions can provide the framework of a
complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. Where
the facts do not permit the Court to infer more than the mere
possibility of misconduct, the Complaint has stopped short of
showing that Plaintiff is plausibly entitled to relief.
Id. at 678 (citing Twombly, 550 U.S. at
deciding a Rule 12(b)(6) motion, a court may not look beyond
the pleadings. Spivey v. Robertson, 197 F.3d 772,
774 (5th Cir. 1999). However, the pleadings, for the purpose
of determining a Rule 12(b)(6) motion, include documents
attached to the pleadings and to the motion to dismiss so
long as they “are referred to in the plaintiff's
complaint and are central to [his] claim.” Causey
v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288
(5th Cir. 2004) (citing Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)).
Juana S. Acosta moves to dismiss Plaintiff's claims
against her because Plaintiff “fail[s] to articulate a
claim for which he is entitled to relief.” Mot. 10.
While it is unclear exactly which of Plaintiff's
more-than-23 claims he brings against Defendant Acosta, he
only specifically asserts, “Unknown Defendants and
Juana Saloma Acosta conspired to defame Petitioner's
character in order to create more work for themselves,
thereby causing them to gain unjust enrichment.” Third
Am. Compl. 15. The Court, therefore, ...