Opinion
Civil Action No. SA-06-CA-64-FB.
March 9, 2006
ORDER DENYING MOTION FOR ENTRY OF DEFAULT JUDGMENTS AGAINST DEFENDANT QUINTERO AND DEFENDANT TACKITT
Plaintiffs filed this case for damages alleging negligence and civil rights violations under 42 U.S.C. § 1983 for injuries sustained when plaintiffs were shot by Wilson County Deputy Sheriff Jose Robert Quintero as they rode in the bed of a pick-up truck which was accelerating away from the deputy. Before the Court is plaintiffs' Motion for Entry of Judgment by Default (docket no. 6) seeking the entry of default judgments against Deputy Quintero and Wilson County Sheriff Joe Tackitt. Plaintiffs do not seek entry of a default judgment against Wilson County. After careful consideration, the Court is of the opinion the motion should be denied.
Plaintiffs filed suit against defendant Quintero, defendant Tackitt and defendant Wilson County on January 19, 2006. On January 20, 2006, plaintiffs served Deputy Quintero and Sheriff Tackitt by certified mail addressed to the deputy and the sheriff at the Wilson County Sheriff's Office. The postal service return receipts were signed by "Cari Shaw," not Deputy Quintero and Sheriff Tackitt.
Service by certified mail to the deputy and sheriff satisfy the personal delivery service requirement set forth in rule 4 of the Federal Rules of Civil Procedure. Although subsection (e)(2) of this rule prescribes that service may be effected upon an individual by personal service, subsection (e)(1) allows for service to be effected "pursuant to the law of the state in which the district court is located. . . ." Because this Court sits in the State of Texas, Deputy Quintero and Sheriff Tackitt may be served in accordance with Texas procedural rules.
Under rule 106 of the Texas Rules of Civil Procedure, service may be effected by "mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto." Under rule 107 of the Texas rules, "[w]hen the citation was served by registered or certified mail as authorized by Rule 106, the return by the officer or authorized person must also contain the return receipt with the addressee's signature." To satisfy the requirements for proper service of citation by certified mail, the postal service return receipt must bear the addressee's signature. Hollister v. Palmer Indep. Sch. Dist., 958 S.W.2d 956, 959 (Tex.App.-Waco 1998, no pet.).
Service in this case is fatally defective because the postal service return receipts do not bear the addressees' (i.e., Deputy Quintero's and Sheriff Tackitt's) signatures. While "Cari Shaw" signed the receipts, plaintiffs have made no showing "Cari Shaw" was authorized by Deputy Quintero and Sheriff Tackitt to sign on their behalf. See Blanks v. Ford Motor Credit, No. Civ. A. 3:04-CV-0331, 2005 WL 43996, at *1 (N.D. Tex. Jan. 7, 2006) (indicating service is effective under Texas law if plaintiff demonstrates postal service return receipt was signed by individual who was authorized by named defendant to sign on named defendant's behalf). The motion for entry of judgments(s) by default must therefore be denied.
IT IS THEREFORE ORDERED that plaintiff's Motion for Entry of Judgment by Default (docket no. 6) against Deputy Quintero and Sheriff Tackitt is DENIED.
It is so ORDERED.