Summary
dismissing the pro se plaintiff's case without prejudice due to the plaintiff's failure to timely effectuate service of summonses and copies of his complaint on the defendants as required by the Federal Rules of Civil Procedure and failure to follow a court order
Summary of this case from Perrin v. Trisura Specialty Ins. Co.Opinion
CASE NO. 3:19-CV-1494-B
03-13-2020
MAYFORD KENNETH DAVIS, JR., PLAINTIFF, v. COUNTY OF DALLAS, ET AL. DEFENDANTS.
ORDER ACCEPTING THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
United States Magistrate Judge Renée Harris Toliver made findings, conclusions and a recommendation in this case. Objections were filed, Doc. 43, and the Court has made a de novo review of those portions of the proposed findings, conclusions and recommendation to which objection was made. The Court finds Plaintiff's latest attempts at service, Docs. 37-41, are insufficient.
For example, Docs. 39-41 show that Plaintiff attempted service by certified mail via a notary public. However such service is insufficient. Under Texas law, only authorized persons can serve process by certified mail. TEX. R. CIV. P. 103. And, a notary public is not an authorized person under Texas law. Dunlap v. City of Fort Worth, No. 4:13-CV-802-O, 2014 WL 1677680, at *3 n.2 (N.D. Tex. Apr. 28, 2014) (citing cases holding that the sheriff, constable, and clerk of court may serve process by certified or registered mail).
Plaintiff's attempted service via certified mail is also deficient because such service must be restricted to addressee only. Delta S.S. Lines, Inc. v. Albano, 768 F.2d 728, 730 (5th Cir. 1985) (citing TEX. R. CIV. P. 106). The documents filed by Plaintiff, however, show the certified mail receipt was signed by persons other than the Defendants to whom the mail matters were addressed. See Doc. 39 at 2, 5, 13 (received by "Mary" on 2/6/2020, line B); Doc. 39 at 10 (received by "Castro"); Doc. 40 at 2 (received by "Lee Worley"); Doc. 40 at 6 (received by "Gary D. Cantrell"); Doc. 41 at 2 (received by "Veronica Ramos").
Plaintiff's remaining attempts at service, Docs. 37-38, are also insufficient. Plaintiff's Certificate of Service for Doc. 37 only includes a USPS notification that the item was returned to the sender (Plaintiff) because "the addressee was not known at the delivery address noted on the package." Doc. 37 at 2. Plaintiff's Certificate of Service for Doc. 38 similarly states "Summons for Catherine Esterada-Carraso has to be reissued and served because the Postal Service has lost it in [sic] the returning to the sender." Doc. 38 at 1.
Accordingly, Plaintiff's objections in his Demand to Unfile the Findings and Recommendations, Doc. 43, are OVERRULED, and the Court accepts the Findings, Conclusions and Recommendation of the United States Magistrate Judge. Plaintiff's case is DISMISSED WITHOUT PREJUDICE. SO ORDERED this 13th day of March, 2020.
/s/ _________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE