United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION AND ORDER
K. PULLIAM UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion for Alternative
Service on John P. Walker, Registered Agent for Defendant
Star Shuttle, Inc. (ECF No. 5). Having considered the
motion, the exhibits filed in support thereof, and the
applicable legal authorities, the Court grants the motion.
moves this Court for an order allowing service of process to
be made on Defendant Star Shuttle, Inc. by allowing a process
server to serve the summons and complaint upon anyone over
sixteen years of age at 1343 Hallmark Dr., San Antonio, Texas
78216, the registered address of the registered agent for
Star Shuttle Inc., or, by allowing the process server to put
the summons and complaint in an envelope and affix it to the
door of 1343 Hallmark Dr., San Antonio, Texas 78216
("1343 Hallmark"). ECF No. 5 at 3.
motion avers that the Texas Secretary of State database
indicates that John P. Walker is the registered agent for
Star Shuttle, Inc., and his address for service as registered
agent is the same as the corporate address of Star Shuttle,
Inc., to wit: 1343 Hallmark. Id. at 1. Plaintiff
also avers that on June 26th, 2019, counsel mailed a notice
of lawsuit and request for waiver of service of summons, two
waivers of service of summons, and a copy of the filed
complaint to Walker at 1343 Hallmark and received no
response. Id. Plaintiff further avers that during
nine unsuccessful service attempts, Alexander Duaine, a
certified process server, confirmed that Walker offices at
1343 Hallmark by speaking with office personnel who work with
Walker, including Walker's son. Id at 2.
support of his motion, Plaintiff submits:
printed page purporting to be a search result from the Texas
Secretary of State website showing John P. Walker as the
registered agent of Star Shuttle, Inc. The address for Walker
is shown as 1343 Hallmark. ECF No. 5-1 at 2.
"Notice of Lawsuit and Request for Waiver of Service of
Summons" addressed to Walker at 1343 Hallmark and signed
by Jeffrey E. Dahl on June 26, 2019, and a "Waiver of
Service of Summons" addressed to Dahl's law office
with a blank signature line labeled "On behalf of Star
Shuttle." ECF No. 5-2.
affidavit of certified process server Alexander Duaine in
which Duaine states, in relevant part, that he
"[a]ttempted service at 1343 Hallmark" on July 31,
2019; August 6, 7, 9, 13, 17, and 22, 2019; and September 4
and 6, 2019. ECF No. 5-3 at 2-3. Duaine also states that
office staff at 1343 Hallmark alleged that "registered
agent John Walker is not [in the] office today" (July
31, 2019); "was not in the office at all today"
(August 6, 2019); "John Walker is not in the office
today" (August 7, 2019); "she will call me next
time Mr. Walker is in the office" (August 9, 2019); that
the business was closed on August 17, 2019; and on August 13,
September 4 and 6, 2019, staff again informed Duaine that
Walker was not in the office. Id. Duaine further
states his belief that Mr. Walker's "staff often
seems to be covering for him reneging on commitments of
calling me or letting me know when he might be
available." Id. at 2.
4(e)(1) of the Federal Rules of Civil Procedure provides that
a defendant may be served in a judicial district of the
United States by "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
...”Rule 106(a) of the Texas Rules of Civil
Procedure authorizes service of process by "(1)
delivering to the defendant, in person, a true copy of the
citation with the. date of delivery endorsed thereon with a
copy of the petition attached thereto, or (2) mailing to the
defendant by registered or certified mail, return receipt
requested, a true copy of the citation with a copy of the
petition attached thereto." Under Rule 106(b), a court
may authorize substitute methods of service upon a showing
that service by personal delivery or by certified mail was
unsuccessful. Rule 106(b) states:
Upon motion supported by affidavit stating the location of
the defendant's usual place of business or usual place of
abode or other place where the defendant can probably be
found and stating specifically the facts showing that service
has been attempted under either (a)(1) or (a)(2)' at the
location named in such affidavit but has not been successful,
the court may authorize service
(1) by leaving a true copy of the citation, with a copy of
the petition attached, with anyone over sixteen years of age
at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence
before the court shows will be reasonably effective to give
the defendant notice of the suit.
TEX.R CIV. P. 106(b).
service exists to allow plaintiffs to effect service where
proof of actual notice under Rule 106(a) is impractical.
See Wilson v. Dunn,800 S.W.2d 833, 836 (Tex. 1992).
A court may authorize substituted service pursuant to Rule
106(b) only if the plaintiffs supporting affidavit strictly
complies with the requirements of the rule. Id.; Fin.
Fed. Credit. Inc. v. Constr. Cans, lnc., No.
H-09-00801, 2010 WL 231754, at *2 (S.D. Tex. Jan. 20, 2010).
The affidavit must state: "(1) the location of the
defendant's usual place of business or usual place of
abode or other place where he can probably be found and (2)
the specific facts showing that service had been
attempted without success under either subsection of Rule
106(a) at the location mentioned in the affidavit."
In re J.M.I.,223 S.W.3d ...