United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Defendants' Rule 12 Motion to Dismiss
Based on Statute of Limitations and Memorandum in Support
(Dkt. #10). Having considered the motion, the Court finds
that it should be DENIED.
February 27, 2017, Defendant Meyer was allegedly driving a
vehicle entrusted to her by Defendant Taylor (collectively,
“Defendants”). While attempting to turn left onto
westbound 8700 Warren Parkway from a parking lot, Defendant
Meyer impacted the vehicle occupied by Plaintiff Colley
(“Plaintiff”). The officer who responded to the
scene of the crash apparently concluded that Meyer's
failure to yield the right of way when turning left onto
westbound Warren Parkway was the only contributing factor to
the crash. Plaintiff indicates that Meyer was not licensed to
operate a motor vehicle in Texas.
February 19, 2019, the day after this lawsuit was filed,
Plaintiff transmitted the complaint and waiver of service to
Defendants. The complaint and waiver were received and signed
for by Defendants. Plaintiff alleges that neither Defendant
answered, and the unexecuted waivers were filed on April 2,
2019-approximately six weeks after this action was commenced.
Summons were requested and issued, and on either April 2,
2019 or April 3, 2019, the summons and complaint were
delivered to a private process server.
precise details concerning the process server's efforts
to serve Defendants are not entirely clear, but apparently
she made attempts on April 3, 2019; April 4, 2019; April 8,
2019; April 12, 2019; April 13, 2019; April 16, 2019; and
April 25, 2019. Plaintiff then allegedly requested
alternative service on May 20, 2019 and an extension of the
Rule 4 time to effect service, which the Court granted on
June 20, 2019. The Court's order was delivered to the
process server, which, along with the complaint and both
summonses, was affixed to the door of Defendants'
residence on June 21, 2019.
February 18, 2019, Plaintiff filed a complaint (Dkt. #1). On
July 11, 2019, Defendants filed a motion to dismiss (Dkt.
#10). On August 5, 2019, Plaintiff filed a response (Dkt.
#14). On August 12, 2019, Defendants filed a reply (Dkt.
Federal Rules of Civil Procedure require that each claim in a
complaint include a “short and plain statement . . .
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Each claim must include enough factual
allegations “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
12(b)(6) motion allows a party to move for dismissal of an
action when the complaint fails to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the
Court must accept as true all well-pleaded facts in
plaintiff's complaint and view those facts in the light
most favorable to the plaintiff. Bowlby v. City of
Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court
may consider “the complaint, any documents attached to
the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
The Court must then determine whether the complaint states a
claim for relief that is plausible on its face. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the [C]ourt to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “But where the well-pleaded
facts do not permit the [C]ourt to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not ‘show[n]'-‘that the pleader is
entitled to relief.'” Iqbal, 556 U.S. at
679 (quoting Fed.R.Civ.P. 8(a)(2)).
Iqbal, the Supreme Court established a two-step
approach for assessing the sufficiency of a complaint in the
context of a Rule 12(b)(6) motion. First, the Court should
identify and disregard conclusory allegations, for they are
“not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 664. Second, the Court
“consider[s] the factual allegations in [the complaint]
to determine if they plausibly suggest an entitlement to
relief.” Id. “This standard
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary claims or elements.'” Morgan v.
Hubert, 335 Fed.Appx. 466, 470 (5th Cir. 2009) (citation
omitted). This evaluation will “be a context-specific
task that requires the reviewing [C]ourt to draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679.
“[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its