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Crittendon v. Texas Department of Health and Human Services

United States District Court, S.D. Texas, Houston Division

November 12, 2019

XAVIER L. CRITTENDON, Plaintiff,
v.
TEXAS DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

          MEMORANDUM AND OPINION

          LEE H. ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE.

         Xavier Crittendon, representing herself, sued the Texas Department of Health and Human Services; Commissioner Henry “Hank” Whitman, Jr.; and employees Kim Davis, LeCrecia Wells, Walter Rideaux, Jennifer Johnson, Rosa K. Phifer, Connie Preseley, Amanda Harrington, Neva Ward, and Susan Marbut. (Docket Entry No. 1). The defendants moved to dismiss for insufficient process and insufficient service of process under Rule 12(b)(4) and (5). (Docket Entry Nos. 16, 17). The defendants also moved to stay discovery pending resolution of their motions. (Docket Entry No. 19). Crittendon responded, moved to amend her complaint, moved for a continuance and to lift the stay, and moved for a default judgment. (Docket Entry Nos. 20, 23, 24, 25, 27, 39). The Department and its employees filed special appearances to oppose Crittendon's motions. (Docket Entry Nos. 35, 42, 43).

         Based on the complaint, the motions and responses, and the applicable law, the court grants the defendants' motions to dismiss, with prejudice. The reasons for this ruling are set out below.

         I. Background

         Crittendon alleges that the Texas Department of Health and Human Services and its affiliates have committed conspiracy and “mob-like crimes, ” including threatening to shut down a child care facility, committing perjury before administrative courts, committing intrinsic and extrinsic fraud to prevent a facility's submission of evidence to an administrative court, and intentionally delaying new applicants' background checks. (Docket Entry No. 1 at 1-3). Crittendon writes her complaint as a series of questions, raising issues relating to violations of the Texas Penal Code and Human Resources Code. (Docket Entry No. 1 at 1-2). Crittendon requests relief, which, in her motion to amend, she claims is damages in the amount of 1% of the biennium budget. (Docket Entry No. 23 at 3).

         Crittendon filed her original complaint on May 1, 2019, but she did not serve the defendants. Almost three months after filing her complaint, Crittendon filed an amended complaint, asking for leave to add defendants who were already named. (Docket Entry No. 9). The court denied the motion to amend and ordered Crittendon to serve the defendants by September 20, 2019. (Docket Entry No. 14). Crittendon attempted to serve Rideaux, Phifer, Johnson, Harrington, Wells, Davis, Preseley, and Marbut by certified mail. (Docket Entry Nos. 22, 26, 28-33). The receipt of service shows the summonses were received on August 21, 2019. (Id.).

         The Department and its employees made a “special appearance”-a state-law term-and moved to dismiss for insufficient process and insufficient service of process under Rules 12(b)(4) and (5). (Docket Entry No. 16). They allege that Crittendon attempted to effect service herself and failed to provide them a copy of the complaint, leading them to “only speculate about what allegations are brought against them.” (Docket Entry No. 16 at 2). Davis also made a “special appearance” and moved to dismiss, alleging that the incorrect Kim Davis was served, and that the intended recipient is now deceased. (Docket Entry No. 17 at 1). Crittendon agrees and asks that Davis be removed as a defendant, but she continues to list Davis as a defendant in her amended complaint. (Docket Entry Nos. 24, 23). The Department, its employees, and Davis submitted “anticipated barriers” to the suit as potential grounds for dismissal. (Docket Entry No. 16 at 4; Docket Entry No. 17 at 4). The Department also moved to stay discovery pending resolution of the motions to dismiss. (Docket Entry No. 19).

         Crittendon responded and moved to proceed with the case. (Docket Entry No. 25). Crittendon argues that service complied with Local Rule 5.5 and Federal Rule 5(b) because the defendants were “[s]ummonsed with proof of receipt.” (Docket Entry No. 25 at 1-2). She also argues that she mailed a copy of the amended complaint to counsel for the Department and its employees. (Id. at 2). Crittendon filed another motion for leave to amend, filing the same amended complaint she had previously submitted. (Docket Entry No. 23). On September 30, 2019, Crittendon filed another response, explaining that she resubmitted “all parts of the SUMMARY as a courtesy TO EACH DEFENDANT and to assure” proper service. (Docket Entry No. 37 at 1).

         The Department employees filed additional “special appearances” to oppose Crittendon's motions for leave to amend and for a default judgment. (Docket Entry Nos. 42, 43). They repeat that they have not been properly served, depriving the court of personal jurisdiction, but do not say whether they received a copy of the complaint from Crittendon's latest mailing. (Docket Entry No. 42).

         II. The Legal Standard

         A. A Motion to Dismiss for Insufficient Process and Service of Process

         The rules for serving process are intended to give defendants sufficient notice of an action filed against them. See 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1061 (4th ed. 2019) (“[Federal Rule 4] was designed to provide maximum freedom and flexibility in the procedures for giving all defendants . . . no matter where they might be located, notice of the commencement of the action.”); see also Goetz v. Synthesys Techs., Inc., 415 F.3d 481, 484 (5th Cir. 2005) (the primary purpose of the service requirements is to give defendants actual notice of litigation against them).

         A party may raise insufficient process or insufficient service of process by moving to dismiss under Rules 12(b)(4) or 12(b)(5). “When service of process is challenged, the serving party bears the burden of proving good cause for failure to effect timely service.” Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013) (alteration omitted) (quotation marks omitted). “Proof of good cause requires at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Id. (quotation omitted). “[S]ome showing of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified is normally required.” Id. (quotation omitted). “Even if the plaintiff lacks good cause, the court has discretion to extend the time for service.” Id. Dismissal for failure to timely serve is without prejudice and is reviewed on appeal for an abuse of discretion. Id.

         A plaintiff can meet the burden of establishing that the defendant was properly served by producing the process server's return of service, which is generally accepted as prima facie evidence that service was properly effected. Nabulsi v. Nahyan, No. H-06-2683, 2009 WL 1658017, at *4 (S.D. Tex. June 12, 2009), aff'd sub nom. Nabulsi v. Bin Zayed Al Nahyan, 383 Fed.Appx. 380 (5th Cir. 2010). “Unless some defect is shown on the face of the return, a motion to ...


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