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Jefferson v. Collins

United States District Court, E.D. Texas, Texarkana Division

September 27, 2019

ROSE M. JEFFERSON, individually and as surviving parent of HOWARD JEFFERSON, JR., ROSELYN JEFFERSON, individually and as surviving daughter of HOWARD JEFFERSON, JR., DEMETRA WYSINGER, as Next Friend and Nominated Administrator of Estate under Arkansas Law, by Plaintiffs, as heirs,
v.
RUSSELL COLLINS, CITY OF TEXARKANA, TEXAS INDUSTRIAL DEVELOPMENT CORPORATION, THE CITY OF TEXARKANA, TEXAS, and BOWIE COUNTY, TEXAS

          ORDER

          ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants City of Texarkana, Texas Industrial Development Corporation (“the Corporation”), the City of Texarkana Texas (“the City”), and Bowie County Texas’s (“Bowie County”) Motion to Dismiss for Insufficient Process and/or Service of Process (Docket No. 47). The above-captioned civil action was referred to United States Magistrate Judge Caroline M. Craven pursuant to 28 U.S.C. § 636. On June 17, 2019, the Magistrate Judge issued a Report and Recommendation recommending Plaintiffs’ causes of action against these Defendants be dismissed without prejudice for failure to show cause and for failure to prosecute (Docket No. 65). Plaintiffs filed objections (Docket No. 67). The Court conducts a de novo review of the objected-to portions of the Magistrate Judge’s recommended findings and conclusions.

         BACKGROUND

         On May 7, 2016, Defendant Russel Collins struck and killed Howard Jefferson, Jr. with his vehicle while Mr. Jefferson was trying to cross New Boston Road in Texarkana, Texas. See Docket No. 51, Ex. A-1. Mr. Jefferson was survived by his spouse, Jabreeka Mitchell Jefferson; his mother, Rosie Mae Jefferson; and his daughter, Roselyn Joy Jefferson.

         Plaintiffs Rosie Jefferson, Roselyn Jefferson and Demetra Wysinger originally filed this action in the Northern District of Texas. The Northern District subsequently transferred the case to this Court. See Docket Nos. 3, 29. Plaintiffs alleged that Mr. Collins negligently operated his motor vehicle, causing Mr. Jefferson’s death. See Docket No. 35 at 3. Plaintiffs also asserted that the City and Bowie County “violated Mr. Jefferson’s civil and constitutional rights by proximately contributing to the creation of circumstances and factors which caused the accident to occur.” Id. at 4–5.

         At Plaintiffs’ requests, the Court granted two extensions of time to serve Defendants, ultimately extending the service deadline to November 29, 2018. Docket No. 40. On November 29, 2018, the Clerk of the Court issued summons as to Defendants Bowie County, the City, the Corporation and Mr. Collins. Docket Nos. 42, 43, 44, 45. However, Plaintiffs admittedly did not serve any defendant until after the November 29, 2018 deadline imposed by the Court. See Docket No. 49 at 2, ¶ 3. No. return of service has been filed to date.

         On December 28, 2018 Defendant Bowie County filed a Motion to Dismiss for Insufficient Process and/or Service of Process (Docket No. 47). The County asserted that the summons was “delivered in an unknown manner sometime in late November” and was later discovered on the desk of Jerry Rochelle, District Attorney for the County. The County argued the action should be dismissed because the summons was not served on the correct County representative and the summons was not served in the manner required by Texas law. Defendant Collins filed a separate motion for summary judgment (Docket No. 51). The City and the Corporation have not made an appearance in this case.

         Plaintiffs filed a Response in Opposition to the Motion to Dismiss (Docket No. 49), acknowledging that there were “procedural shortcoming[s]” in the service of process, but stating that such shortcomings should not deprive Plaintiffs of their right to be heard on the merits. Plaintiffs explained that the delay in service was a result of Plaintiffs’ lack of financial resources. Docket No. 49 at 2. Plaintiffs acknowledged that they did not serve the named Defendants until after the November 29, 2018 deadline. Plaintiffs also stated that Defendants were served soon after the deadline but were served only the summons and not the Complaint.

         On March 20, 2019, the Court set the case for a scheduling conference. Docket No. 52. The Court ordered the parties to file a joint report that reflected the parties’ case management plan no later than one week before the scheduling conference. On May 7, 2019, Defendants Bowie County and Collins filed their part of the Joint Conference Report. See Docket No. 57. According to the County and Mr. Collins, the Joint Conference Report was submitted without Plaintiffs’ participation as Plaintiffs’ counsel failed to respond to a phone call and voicemail regarding the need to confer. Id. at 1, n.1.

         The Court entered a show cause order on May 21, 2019, ordering Plaintiffs to show cause within 14 days why their claims against Bowie County, the City and the Corporation should not be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 4(m). Docket No. 62. The Court further ordered that failure to show cause within 14 days from the date of the Order may result in the recommendation that the case against Bowie County, the City and the Corporation be dismissed without prejudice for failure to prosecute. Plaintiffs failed to respond to the show cause order within the stated deadline.

         REPORT AND RECOMMENDATION

         On June 17, 2019, the Magistrate Judge entered a Report and Recommendation recommending the Court dismiss without prejudice Plaintiffs’ claims against Bowie County, the City and the Corporation for failure to show cause and for failure to prosecute. Docket No. 65. The Magistrate Judge concluded Plaintiffs failed to timely serve the summons and complaint upon all Defendants. Id. at 3. The Magistrate Judge also found that Plaintiffs failed to show good cause within 14 days of the show cause order. Id. Based on these failures, the Magistrate Judge recommended the Court dismiss the causes of action against Bowie County, the City and the Corporation without prejudice. Id.

         The Magistrate also entered a Report and Recommendation on June 18, 2019, recommending the court grant Defendant Collins’ separate ...


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