Opinion
3-04-CV-255-AH.
August 20, 2004
ORDER
Pursuant to the written consents of the parties and the District Court's order filed on April 19, 2003, reassigning this action to the undersigned magistrate judge in accordance with the provisions of 28 U.S.C. § 636(c) on this date came on to be considered Defendants' Motion to Dismiss filed on March 9, 2004, Plaintiff's response filed on March 18, 2004, and Defendants' reply filed on April 2, 2004, and having considered the relevant papers and pleadings the court finds and orders as follows:
For the reasons stated in the order it is unnecessary to consider Plaintiff's response to Defendants' reply filed on April 26, 2004, or Defendants' Motion to Strike the same filed on April 28, 2004.
Contemporaneous with their answer and counterclaim filed on March 9, 2004, in which Defendants asserted inter alia an affirmative defense that none had been effectively served with process in this action, See Defendants' Original Answer and Counterclaim at ¶ 52, Defendants filed their Motion to Dismiss. As their initial argument in support of their motion Defendants Cook and Blacknall assert that Plaintiff failed to properly serve them either in their official or individual capacities and Defendant Duncanville I.S.D. asserts that service was never properly effected on it.
Defendants timely and appropriately asserted this basis for dismissal of Plaintiff's complaint pursuant to Rule 12(b)(5) in accordance with the requirements of Rule 12(g), Federal Rules of Civil Procedure, E.g. see Flory v. United States, 79 F.3d 24 (5th Cir. 1996), and the fact that Defendants filed a counterclaim against Plaintiff for recovery of their attorneys fees upon their assertion that Plaintiff's claims are frivolous, unreasonable and without foundation does not waive their Rule 12(b)(5) defense. E.g. see Pittsburgh Terminal Corp. v. Mid Allegheny Corp., 110 F.R.D. 4, 6-7 (S.D. W.Va. 1985).
The returns of service on each Defendant reflect that none was personally served. See Returns of Service filed on February 18, 2004. Further, the affidavit of Dr. Jerry Cook states that he is the only person authorized by the Duncanville I.S.D. to accept service of process on behalf of the school district. See Defendants' Appendix filed with their motion at 3.
The returns of service affirmatively show that service was not effected on Defendants Cook and Blacknall as required by Rule 4(e)(2) and that service was not effected on the school district in accordance with Rule 4(j)(2), Federal Rules of Civil Procedure.
Rule 4(e)(1) authorizes an alternative means of service in accordance with the law of the State of Texas with respect to effecting service, i.e. Rule 106, Texas Rules of Civil Procedure. Rule 106(a)(1) is generally speaking a state-law counterpart to Rule 4(e)(2) — i.e. personal service on a defendant. With respect to service of process on school districts, state law requires that process be served on the president of the school board or on the district's superintendent. Tex.Civ.Prac. Rem. Code § 17.024(c).
Federal and Texas state law also authorize service by registered or certified mail. See Rule 4(d) and Rule 106(a)(2). However, in this case no attempt was made to effect service under this alternative.
In effecting service pursuant to state law Texas courts require strict compliance with the applicable rules and efforts short of that which is required by the rules are invalid and of no effect.See Whitney v. L L Realty Corp., 500 S.W. 94, 96 (Tex. 1973); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985); and PH Transportation, Inc. v. Robinson, 930 S.W.2d 857, 859 (Tex.App.-Houston [1st District] 1996, writ denied.
In response to Defendants' assertion that they were not properly served Plaintiff has tendered the affidavits of Lindy Hernandez and Ronald Young, Jr. See Plaintiff's Appendix to his response, Exhibits D and E.
In her affidavit (Exhibit D) Ms. Hernandez represents that she personally served Robbie Irene Blacknall on February 13, 2004, and that she served Dr. Jerry Cook on the same date with a copy of Plaintiff's complaint by leaving it with Dr. Cook's private secretary. She further states that on February 18, 2004, she re-served a summons and complaint on Dr. Cook by leaving them with his private secretary and that on the same date she re-served a summons and complaint on the school district by leaving them with Dr. Cook's private secretary. She further states that she requested to see Dr. Cook, but was told by his secretary that he was busy and that she, the secretary, would accept the papers. Ms. Hernandez attached copies of AO440 (Rev. 8/01) Summons in a Civil Action forms purporting to show personal service on Ms. Blacknall on 2-13-04, on Dr. Cook's secretary Elaine on 2-13-04, and on the school district secretary Janie on 2-13-04. The copies have clerk's file marks of February 17, 2004, which are crossed out. Copies of Ms. Hernandez's returns dated and file stamped February 18, 2004, reflecting that she left documents with Dr. Cook's secretary on the same date are also included with her affidavit.
In his affidavit (Exhibit E) Mr. Young represents that he "personally gave a summons and legal complaint to Robbie Irene Blacknall." However, it is made abundantly clear from the remainder of his affidavit that he did not personally serve Ms. Blacknall, but in fact left them with her secretary, Claudia. He also attaches a copy of his executed return, reflecting that process was left with the front receptionist.
Clearly Plaintiff's attempts to effect service on the Defendants Cook and Blacknall on February 13, 2004, failed to comply with either Federal Rules of Civil Procedure or the Texas rules. Service of process requires that a defendant be served with a properly-executed summons together with a copy of the complaint (petition). See Rule 4(c)(1), Federal Rules of Civil Procedure and Texas Rule of Civil Procedure 106(a)(2). The record reflects that summons were not issued by the Clerk of Court until February 17, 2004. Nor does the fact that either Defendant may have had actual notice of the existence of Plaintiff's complaint change the result since it is well established that actual notice does not excuse compliance with the rules. See Way v. Mueller Brass Co., 840 F.2d 303, 306 and n. 2 (5th Cir. 1988);McGuire v. Signa Coatings, Inc., 48 F.3d 902, 907 (5th Cir. 1995); P H Transportation, Inc. v. Robinson, supra, 930 S.W.2d at 859.
Plaintiff's attempts to effect service on Defendants on February 18, 2004, were likewise deficient. It is clear that process was not personally served on either Blacknall or Cook on that date. Further, process was neither served on the president of the Duncanville I.S.D. Board nor on its superintendent, Dr. Jerry Cook. Tex.Civ.Prac. Rem. Code § 17.024(c), supra. Notwithstanding the fact that secretarial personnel agreed to deliver the documents to Defendants Blacknall and Cook, such statements do not establish that either secretary had actual authority to accept service on behalf of any defendant named in Plaintiff's complaint. See Ross v. Runyon, 156 F.R.D. 150, 153-54 (S.D. Tex. 1994). In fact, the affidavits of Defendants Blacknall and Cook specifically deny that their secretaries had authority to accept service of process on their behalfs or on behalf of the Duncanville I.S.D. There is no suggestion that either Blacknall or Cook attempted to evade or impede personal service of process after being made aware of each server's purpose in appearing at their respective business addresses.
Either due to ignorance or negligence, the persons whom Plaintiff appointed to serve process on Defendants failed to effect service on any in compliance with the requirements of Rule 4(e)(2) or pursuant to Texas state law as authorized by Rule 4(e)(1).
Plaintiff's complaint was filed more than 120 days before the date of this order. Plaintiff was placed on notice of the deficiencies in his efforts to serve process on Defendants upon his receipt of Defendants' motion to dismiss no later than March 18, 2004. Plaintiff made no effort to correct the specific and detailed deficiencies noted in Defendants' brief which accompanied their motion.
IT IS, THEREFORE, ORDERED that Defendants' motion to dismiss is granted and that Plaintiff's complaint is dismissed without prejudice. See Rule 4(m). See also Murray v. Town of Mansura, 76 Fed.Appx. 547 (5th Cir 2003).
A copy of this order shall be transmitted to Plaintiff and counsel for the Defendants.