United States District Court, S.D. Texas, Houston Division
XAVIER L. CRITTENDON, Plaintiff,
TEXAS DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
MEMORANDUM AND OPINION
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE.
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,
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.
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).
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.).
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).
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).
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).
The Legal Standard
A Motion to Dismiss for Insufficient Process and Service of
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).
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
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 ...