Summary
holding that the court only considers state law, when determining whether service of process comports with Rule 4(j), if service was not effected on the defendant's chief executive officer
Summary of this case from Rhodes v. Wilmer-Hutchins Independent School DistrictOpinion
CIV. NO. 3-99CV1538-P
April 11, 2000
MEMORANDUM OPINION AND ORDER
Now before the Court for consideration are:
1) Defendant Dallas County Board of School Trustees's Motion to Dismiss for Insufficiency of Service of Process and Brief in Support, filed on November 9, 1999;
2) Defendant Dallas County Schools's Partial Motion to Dismiss and Brief in Support, filed on November 9, 1999;
3) Plaintiff's Response to Defendant's Partial Motion to Dismiss and Motion to Dismiss for Insufficiency of Service and Brief in Support, filed on November 29, 1999;
4) Defendant Dallas County Schools's Reply in Support of Defendant's Partial Motion to Dismiss and Brief in Support, filed on December 17, 1999;
5) Defendant Dallas County Schools's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Brief in Support, filed on February 8, 2000;
6) Plaintiff's Response to Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed on March 2, 2000; and
7) Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Brief in Support, filed April 3, 2000.
After reviewing the arguments along with the applicable law, the Court hereby GRANTS Defendant Dallas County Board of School Trustees's Motion to Dismiss for Insufficiency of Service of Process and Defendant Dallas County Schools's Partial Motion to Dismiss. The Court hereby DENIES Defendant Dallas County Schools's Motion to Dismiss for Lack of Subject Matter Jurisdiction without prejudice pending further discovery.
FACTUAL BACKGROUND
On July 6, 1999, Jacquelyn Herring ("Plaintiff"), as Next Friend of Hannah Herring ("Herring"), filed her Original Complaint in this Court to recover for injuries sustained by Herring, a six-year-old handicapped student, while being transported by bus to and from a school located in the Richardson School District. Plaintiff's First Amended Complaint named Dallas County Schools ("DCS") and Dallas County Board of School Trustees ("Board of Trustees") as defendants. Plaintiff alleges that Herring's injuries resulted from the bus driver's smoking as he drove the bus with Herring aboard. Pl's Orig, Compl. ¶¶ 15-8. Plaintiff seeks both compensatory and punitive damages, claiming (1) a violation of the Individuals with Disabilities Education Act; (2) negligence in the employment, training, and supervision of the bus driver; and (3) intentional infliction of emotional distress.
DISCUSSION
I. Defendants' Motion to Dismiss for Insufficiency of Service of Process
Plaintiff's original complaint named Dallas County and the Dallas County Board of School Trustees as defendants and averred that both could be served through their registered agent, Dallas Mayor Ron Kirk. Pl's Orig. Compl. ¶¶ 2-3. Plaintiff later filed her First Amended Complaint, which named DCS and Dallas County Board of School Trustees as defendants and identified the registered agent for service of process for both entities as Ray Lanoux, Director of Risk Management/Human Resources for Dallas County Schools. Pl's First Amended Compl. ¶¶ 2-3; Defs Mot. to Dismiss for Insuff. of Serv. at 1. The Board of Trustees contends that because Mr. Lanoux was not an agent of the Board or any of its members, service of process has not been properly completed upon the Board of Trustees.
Defendant Dallas County Schools does not object to this service of process.
Service of process is essential to any procedural imposition on a defendant in a court of law. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 119 S.Ct. 1322, 1326 (1999); J.O. Alvarez, Inc. v. Rainbow Textiles Inc., 168 F.R.D. 201, 203 (S.D. Tex. 1996) ("A district court cannot exercise jurisdiction over a defendant which has not been served properly."). Federal Rule of Civil Procedure 4(e)(2) authorizes service of process upon an individual by delivering a copy of the summons and complaint to the individual or to the individual's authorized agent for service of process. Fed.R.Civ.P. 4(e)(2). However, the record does not show that Plaintiff attempted service upon the individual members of the Board of Trustees.
Rule 4(j)(2) of the Federal Rules of Civil Procedure provides that when a state, municipal corporation, or other governmental organization is sued, service shall be made "by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant." F. R. Civ. P. 4 (j)(2). That is, a plaintiff suing a governmental organization such as the Dallas County Board of School Trustees may choose either to serve the Board's chief executive officer or to serve the Board in compliance with state law.
The Board of Trustees asserts that Ray Lanoux is not its chief executive officer, and the record contains no evidence or statement to the contrary. Therefore, service upon Mr. Lanoux was invalid under the rule's first option because he was not the school district's chief executive officer. The Court next turns to Texas law to determine whether the Board of Trustees was properly served in compliance with state law — Rule (4)(j)(2)'s second authorized avenue of service of process.
Under Texas law Plaintiff bears the burden of showing on the face of the record that service was properly performed. See McKanna v. Edgar, 388 S.W.2d 927, 929-30 (Tex. 1965). If service of process is not executed in strict compliance with Texas state law, a court will not acquire proper jurisdiction over a defendant and will be unable to hear the case. See Whitney v. LL Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973). Rule 106 of the Texas Rules of Civil Procedure provides that a plaintiff may complete service of process by delivering or mailing the citation and petition to the defendant. However, the record shows no evidence that Plaintiff has served any member of the Board of Trustees.
Because Plaintiff has not complied with the requirements for service of process under either Federal Rule of Civil Procedure 4 or Texas Rule of Civil Procedure 106, the Court finds Plaintiff's attempted methods of service of process insufficient under both Texas and federal law. Realizing this deficiency in her attempted method of service, Plaintiff requests additional time to serve the members of the Board of Trustees individually. The Court grants Plaintiff's request for an additional amount of time. Plaintiff shall complete service upon the Board of Trustees within twenty days of this Order. Plaintiff's failure to properly serve the Board within that time will result in a dismissal of Plaintiffs claims.
II. Defendant Dallas County Schools's Partial Motion to Dismiss: Tort Claims
Generally, a governmental unit enjoys sovereign immunity and cannot be named as a defendant in a cause of action except when it waives that immunity by consenting to suit. See Jones v. Houston Indep. Sch. Dist., 979 F.2d 1004 (5th Cir. 1992). Texas law grants school districts immunity from tort claims except in suits involving the operation or use of motor vehicles. See Tex. Civ. P. Rem. Code § 101.051 (West 1997). Specifically, a school district is liable only for "property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle" and the employee would be personally liable to the claimant under Texas law. Tex. Civ. P. Rem. Code § 101.021 (1)(A)-(B) (West 1997). Therefore, if Herring's injuries arose "from the operation or use of a motor-driven vehicle," the exception applies and DCS will have waived its sovereign immunity in this cause of action.
DCS, as a school district, is a "governmental unit" under Texas law. See Def' s Partial Mot. to Dismiss at 2; Tex. Civ. P. Rem. Code § 101.001(3)(B) (West Supp. 2000). Moreover, the Dallas County Board of School Trustees, as agents of the school, enjoy the same governmental immunity as the district itself when the trustees act in their official capacity and in good faith. See Closs v. Goose Creek Consol. md. Sch. Dist., 874 S.W.2d 859, 869 (Tex.App.-Texarkana 1994, no writ).
The motor vehicle exception requires a "nexus" between the injury caused by a school employee and the employee's operation or use of a motor-driven vehicle. See LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992). However, when the bus is only the "setting" for the injury, the injury does not arise out of the use or operation of the bus. In such a situation, the motor-vehicle exception does not apply, and immunity is not waived. See id at 52.
The appeals court in Estate of Garza v. McAllen Indep. Sch. Dist., 613 S.W.2d 526 (Tex.Civ.App.-Beaumont 1981, writ ref' d n.r.e.) held that the motor vehicle exception did not apply to injuries suffered by Garza, a high school student, while riding a school bus. Garza was stabbed by another juvenile while the boys were passengers on a school bus. Although a school employee was driving the bus at the time of the stabbing, the court found that the necessary causation link was not established between the use or operation of the bus and Garza' a injuries. The court recognized that the "knife and not the use of the bus was the cause of plaintiffs' damage." Id. at 528. Noting that the school district clearly would be immune to suit had the stabbing occurred on school grounds rather than on the bus, the court was "unwilling to believe that the legislature . . . intended to expose school districts to unlimited liability for stabbings on school buses while denying such claims for stabbings on the school grounds." Id.
Similarly, here, Plaintiff has shown no nexus between Herring's injuries and the use or operation of the school bus. The bus merely served as the location, or the "setting," for her injuries. The operation or use of the bus did not cause Herring's injuries; rather, Plaintiff asserts in her own complaint that the cause of Herring's injuries was the school employee's cigarette smoking.
Had Herring been exposed to a school employee's cigarette smoke in a classroom rather than on a school bus, the motor vehicle exception clearly would not apply. Therefore, Defendant's immunity to tort claims cannot be waived merely because the location of Herring's injuries happened to be on a school bus rather than a classroom. Without a nexus between the operation or use of the bus and her injuries, the motor vehicle exception does not apply. Cf LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49 (Tex. 1992) (motor vehicle exception did not apply to student's hitting her head on the bus emergency door); Hopkins v. Spring Indep. Sch. Dist, 736 S.W.2d 617 (Tex. 1987) (exception did not apply to siezures suffered on board a school bus by a student with cerebral palsy); Luna v. Harlingen Consol. Indep. Sch. Dist. 821 S.W.2d 442, 445 (Tex.App.-Corpus Christi 1991, writ denied) (exception did not apply to injuries two children sustained when they were struck by a vehicle while waiting at a bus stop); Pierson v. Houston Indep. Sch. Dist., 698 S.W.2d 377, 380 (Tex.App. .— Houston [14th Dist.] 1985, writ ref'd n.r.e.) (exception did not apply to students' injuries caused by an explosion resulting from an attempt to light a smoke-producing device on board a homecoming float) with Hitchcock v. Garwin, 738 S.W.2d 34 (Tex.App.-Dallas 1987, no writ) (motor vehicle exception did apply to students injured by other vehicles while leaving a school bus because of bus driver's failure to activate the bus's warning flashers while students were unloading).
Because Plaintiff's claims do not involve the use or operation of a motor-driven vehicle, Defendants have not waived sovereign immunity in this case. Defendants are therefore immune from negligence claims. Furthermore, a school district's sovereign immunity extends without exception to causes of action involving intentional torts, making DCS and the Board of Trustees immune from intentional infliction claims. See Tex. Civ. R Prac. Code § 101.057(2) (West 1997). With the IDEA being the only remaining avenue for recovery, Plaintiffs punitive damages claim fails because the Fifth Circuit does not allow claims for punitive damages under the IDEA. See Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348 (5th Cir. 1983).
III. Defendant Dallas County Schools's Motion to Dismiss: Lack of Subject Matter Jurisdiction
The Individuals with Disabilities Education Act (IDEA) authorizes grants of federal funds to states to assist them in providing "special education and related services to children with disabilities." 20 U.S.C.A. § 1411(a)(1) (West 2000). A school district is not subject to the IDEA's requirements unless and until it begins to receive federal assistance, because the requirements "are tied directly to the receipt of federal funds."Scokin v. State of Tex., 723 F.2d 432, 440 (5th Cir. 1984); see Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998) (A law "conditioning an offer of federal funding on a promise by the recipient . . . amounts essentially to a contract between the Government and the recipient of funds").
Plaintiff claims that the bus driver's smoking on the job constituted a failure by DCS to provide a "free appropriate public education" for Herring, a child with a disability, in violation of the IDEA. See 20 U.S.C.A. § 1412(a)(1) (West 2000). DCS argues that the Court has no subject matter jurisdiction over this claim because DCS received no federal funding during the school year in which the allegedly wrongful conduct occurred. DCS further argues that it is not subject to the IDEA's requirements because it neither determines students' transportation needs nor provides classrooms, teachers, or educational services.
However, Plaintiff contends that DCS may have in fact received federal funds used to provide public education for handicapped children by virtue of its transportation arrangements with Richardson Independent School District and other schools. Plaintiff asserts that any indirect benefit which DCS received from federal funds may be sufficient to subject DCS to the provisions of the IDEA. At any rate, the record is unclear as to the nature of DCS's role in the educational process. Therefore, the Court lacks sufficient evidence at this time to make a determination on Defendant's Motion to Dismiss Plaintiff's IDEA claim for lack of subject matter jurisdiction, and any action on these grounds before more thorough development of the evidence and legal arguments would be premature. Further discovery is necessary for a proper determination of whether DCS is subject to the provisions of the IDEA.
CONCLUSION
For the reasons stated herein, the Court hereby GRANTS IN PART Defendant Dallas County Board of School Trustees's Motion to Dismiss for Insufficiency of Service of Process and Defendant Dallas County Schools's Partial Motion to Dismiss. It is ORDERED that Plaintiff perfect service upon the Board within twenty days of the date of this Order, The Court GRANTS Defendant's Partial Motion to Dismiss and FURTHER ORDERS that Plaintiff's claims under theories of tort law, intentional infliction of emotional distress, and punitive damages are hereby DISMISSED. Finally, the Court hereby DENIES Defendant Dallas County Schools's Motion to Dismiss for Lack of Subject Matter Jurisdiction without prejudice pending further discovery.
So ORDERED, this 11th day of April, 2000.