United States District Court, E.D. Texas, Texarkana Division
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,
RUSSELL COLLINS, CITY OF TEXARKANA, TEXAS INDUSTRIAL DEVELOPMENT CORPORATION, THE CITY OF TEXARKANA, TEXAS, and BOWIE COUNTY, TEXAS
W. SCHROEDER III UNITED STATES DISTRICT JUDGE
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
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
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.
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.
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.
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
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.
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.
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.
Magistrate also entered a Report and Recommendation on June
18, 2019, recommending the court grant Defendant
Collins’ separate ...