Opinion
CA No. 3:03-CV-0039-R.
May 11, 2004
MEMORANDUM OPINION
Now before the Court is Defendant Wilmer-Hutchins Independent School District's Motion to Dismiss, to Set Aside Clerk's Entry of Default, for Sanctions, and Incorporated Memorandum (filed September 23, 2003). For the reasons set forth below, the Motion is DENIED.
I. BACKGROUND
On 6 January 2003, Sylvia Rhodes ("Rhodes") filed a complaint against Wilmer-Hutchins Independent School District ("WHISD") alleging discrimination based on sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Subsequently, on 13 March 2003, Rhodes attempted to execute service on WHISD Superintendent Dr. Charles Mathews ("Mathews") through Felicia E. Rowe ("Rowe"). Service was returned as executed that day.
After receiving no answer to her complaint, Rhodes requested a clerk's entry of default against WHISD on 3 March 2003, which was entered on 7 March 2003. WHISD protested. It asserted that Rowe was not authorized by law to effect service. Thus, on 18 April 2003, WHISD filed its answer to Rhodes' complaint and, among other things, asserted that Rhodes failed to properly effect service of process. This motion followed.
II. ANALYSIS
FEDERAL RULE OF CIVIL PROCEDURE 12(b)(5) generally provides for dismissal of a claim if service of process was not timely made in accordance with FEDERAL RULE OF CIVIL PROCEDURE 4 or was not properly served in the appropriate manner. See Grant-Brooks v. Nationscredit Home Equity Servs. Corp., No. Civ. A. 3:01-CV-2327-R, 2002 WL 424566, at *3 (N.D. Tex. Mar. 15, 2002) (Buchmeyer, J.); Clark v. Johnson County, No. Civ. A. 3:01CV2231-M, 2002 WL 500858, at *2 (N.D. Tex. Mar. 27, 2002) (Lynn, J.). Specifically, Rule 4(j)(2), which applies here, requires that service on a governmental organization subject to suit shall be effectuated by delivering a copy of the summons and complaint to its chief executive officer. See id. Service, under FEDERAL RULE OF CIVIL PROCEDURE 4(c)(2), may be effected by anyone who is not a party to the case and is at least 18 years of age. See Parson v. Wilmer Hutchins Indep. School District, No. Civ. A. 3:03CV0492-K, 2004 WL 575958, at *1 (N.D. Tex. Feb. 27, 2004) (Kinkeade, J.).
See Hander v. San Jacinto Junior Coll., 519 F.2d 273, 279-80 (5th Cir. 1985) (citation omitted).
"When a defendant challenges the validity of service of process, the serving party bears the burden of showing its validity." Id. (citing Systems Signs Supplies v. U.S. Dept. of Justice, Washington, D.C., 903 F.2d 1011, 1013 (5th Cir. 1990)). Accordingly, Rhodes must show that service on Mathews by Rowe was proper. She has. As superintendent of WHISD, Mathews is the chief executive officer of the school district. See TEX. EDUC. CODE ANN. § 11.021(a). Rowe's affidavit, which accompanied Rhodes' response to WHISD's motion, indicates that Rowe is over 18 years of age and not a party to the case — facts WHISD do not dispute. Furthermore, WHISD does not dispute that Rowe served Mathews with process. The service of process, WHISD argues, simply failed to comply with state law under Rule 4(j)(2).
However, because Rowe served process on Mathews, WHISD's chief executive officer, state law does not apply. See Herring v. Dallas County Schools and Dallas County Board of School Trustees, 2000 WL 370623, at *2 (N.D. Tex. Apr. 11, 2000) (Solis, J.) (holding that the court only considers state law, when determining whether service of process comports with Rule 4(j)(2), if service was not effected on the defendant's chief executive officer). Thus, because Rowe was qualified to effect service of process under Rule 4(c)(2), and WHISD was properly served under Rule 4(j)(2), Rhodes has met her burden of establishing the validity of service. WHISD's motion, accordingly, is denied.
Rhodes also contends that her attorney, B.J. Warren, served WHISD by certified mail, return receipt requested, on 31 March 31, 2003. Pl's. Resp. to Def's. Mot. to Dismiss at 6. Warren's attempt at service, the Court need not determine, since Rhodes has met her burden at to Rowe's service.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss is hereby DENIED.