Opinion
Civil Action No. 3:04-CV-229-M.
July 13, 2004
MEMORANDUM OPINION AND ORDER
Plaintiff brings Title VII claims against Defendant, a union, that refused to hire him. Defendant has filed two Fed.R.Civ.P. 12(b) Motions: one to dismiss, asserting that Plaintiff's claim is time-barred, and one either to dismiss or quash service of process, due to alleged defects of service. While Defendant does not specify under which subsections of 12(b) its motions are brought, the former ought to be analyzed under 12(b)(6) (Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003)) and the latter under 12(b)(5) (FED. R. CIV. P. 12(b)(5)).
In considering a 12(b)(6) motion, the Court must take all well-pled facts asserted in the Complaint as true. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). According to the Complaint, Plaintiff received his right-to-sue letter on November 5, 2003. Under Title VII, Plaintiff had 90 days from the date of receipt in which to file his suit. Since Plaintiff filed the Complaint on February 4, 2004, it would seem that his suit was brought one day late, and that Defendant's motion should be granted. However, Plaintiff is proceeding pro se and his pleadings are evaluated according to a less stringent standard than would be applied if he were represented by an attorney. Taylor v. Books a Million, 296 F.3d 376, 378 (5th Cir. 2002). In evaluating the motion, the Court will evaluate not only the Complaint, but also other materials Plaintiff has filed. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir. 1979). As in McGruder, Plaintiff filed a Memorandum in Opposition to Defendant's Motions to Dismiss, in which he asserts additional facts to those raised in the Complaint. In both McGruder and Howard, the Fifth Circuit held that, for pro se plaintiffs, such documents are to be treated "as an amendment to his complaint or an addition in the nature of an amendment." McGruder, 608 F.2d at 1025. In his memorandum, Plaintiff alleges that he erred in stating that the right-to-sue letter was received on November 5; instead, it was mailed on November 4. Fifth Circuit law requires the Court to accept this allegation as true. If the letter was mailed on November 4, under Taylor, Plaintiff was timely in filing on February 4. In Taylor, the Fifth Circuit followed other circuits in holding that there is a three-to-seven day cushion, from the date a right-to-sue letter is mailed for presumed receipt, which is in effect added to the ninety-day period. Id. at 379. If the right-to-sue letter was mailed on November 4, then Plaintiff had at least until February 5 to bring his claim; therefore, Plaintiff's claim is not time-barred.
Defendant also moves to dismiss under Rule 12(b)(5), asserting that Plaintiff failed to serve Defendant properly. Defendant, a union, is an unincorporated association. See Penrod Drilling Co. v. Johnson, 414 F.2d 1217, 1222 (5th Cir. 1969); Gonzales v. American Postal Workers Union, AFL-CIO, 948 S.W.2d 794, 798 (Tex.App.-San Antonio 1997, writ denied). As an unincorporated association, service of process on Defendant is governed by Fed.R.Civ.P. 4(h)(1), which allows for service to be effected by delivering a summons and a copy of the Complaint "to an officer, a managing or general agent, or to any other agent authorized by appointment or by law." FED. R. CIV. P. 4(h)(1). Rule 4(h)(1) also allows service to be effectuated under Rule 4(e)(1), which allows service of process to be made "pursuant to the law of the state in which the district court is located." FED. R. CIV. P. 4(e)(1). In Texas, service of process may be made on unincorporated associations by serving "an agent authorized by appointment to receive service of process, an officer, a managing or general agent, or a person authorized to participate in the management of [the association's] affairs." TEX. REV. CIV. ST. ANN. Art. 1396-70.01 § 14. Here, Plaintiff served Kenneth Stretcher, an employee of Local 100 and a personal friend of Plaintiff. Mr. Stretcher is neither an officer nor a managing or general agent of Defendant, nor is he authorized by appointment or by law to receive process. Plaintiff argues that Stretcher was authorized to participate in the management of Local 100's affairs. Reply ¶¶ 9-10. Defendant states that Stretcher is not so authorized. Texas law requires strict compliance with the rules concerning service of process.See Malone v. Williams Fried Chicken, No. CIV. A. 3:98-CV-0584-D, 1999 WL 288687, at *2 (N.D. Tex. May 4, 1999) (citing PH Transp., Inc. v. Robinson, 930 S.W.2d 857, 858-59 (Tex.App.-Houston [1st Dist.] 1996, writ denied)). The burden is on Plaintiff to show that service of process is valid. Norlock v. City of Garland, 768 F.2d 654, 656 (5th Cir. 1985). Hence, it is Plaintiff's burden to show that Stretcher is authorized to participate in the management of Local 100's affairs under Texas law. The Court interprets "a person authorized to participate in the management of affairs" as someone who participates in major decisionmaking on significant issues considered by the union, but who is not technically an officer or manager. The term does not encompass the average employee. Plaintiff lists various responsibilities and duties Stretcher has as an employee of the union, but he has not conclusively shown, as is his burden to do, that Stretcher is authorized to participate in the management of Local 100's affairs. Thus, Plaintiff failed to properly serve Defendant when he served Stretcher.
However, Plaintiff's failure is not fatal to his claim. Courts have consistently held that it is within the district court's discretion in ruling on 12(b)(5) motions to quash service of process and allow the plaintiff another opportunity to properly effect service of process. Cross v. City of Grand Prairie, No. CIV. A. 3:96-CV-0446-P, 1998 WL 133143, at *7 (N.D. Tex. Mar. 17, 1998) (citing Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir. 1985)); Grant-Brooks v. NationsCredit Home Equity Servs. Corp., No. CIV. A. 3:01-CV-2327-R, 2002 WL 424566, at *4 (N.D. Tex. Mar. 15, 2002). Furthermore, courts have also held that a plaintiff's pro se status is relevant in making the determination on whether to quash service of process or dismiss.Monroe v. Texas Utils. Co., No. CIV. A. 3:01-CV-1012-D, 2002 WL 413866, at *2 (N.D. Tex. Mar. 11, 2002) (citing Kaff v. United Press Int'l, No. CIV. A. 88-CV-2331-MJL, 1988 WL 130908, at *3 (S.D.N.Y. Dec. 1, 1998)). The Court concludes that dismissal is not warranted here.
For the reasons stated above, the Court DENIES Defendant's Motion to Dismiss under Rule 12(b)(6), and GRANTS its 12(b)(5) motion by quashing service of process and allowing Plaintiff thirty days to properly serve Defendant.
Although more than 120 days have passed since Plaintiff filed his Complaint, and pursuant to Rule 4(m) could be subject to dismissal, Rule 4(m) also allows the Court to "direct that service be effected within a specified time." FED. R. CIV. P. 4(m). As Defendant's motion and Plaintiff's Response were filed within the 120 days, it would be proper to allow Plaintiff additional time to properly serve Defendant. In Cross, a similar situation was before the Court and the plaintiff was given 30 days to serve the defendant.
SO ORDERED.