Opinion
No. 3-02-CV-0292-M.
April 19, 2002.
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Texas Instruments, Inc. ("TI") has filed a motion to quash for insufficiency of service of process pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure. The motion has been referred to United States Magistrate Judge Jeff Kaplan for recommendation pursuant to 28 U.S.C. § 636 (h) and an order of reference dated April 18, 2002.
I.
This is a pro se disability discrimination case brought by Plaintiff Ravon L. Dudley against his employer, Texas Instruments. On February 12, 2002, plaintiff filed a seven-page complaint with attachments and an application for leave to proceed in forma pauperis. The Court determined that plaintiff lacked the financial resources to prosecute this case, granted leave to proceed in forma pauperis, and allowed the complaint to be filed. Thereafter, a summons was issued to "Suzanne Martin, EEO Specialist, Texas Instruments, 4904 102nd Street, Lubbock, Texas." The United States Marshal personally served Martin with the summons and a copy of the complaint on March 12, 2002.
Summonses were also issued for three other TI employees — Tom Engibus, Larry Tolson, and Kevin Richie. It does not appear that any of these summonses have been served.
TI, through its attorney of record, now moves to quash the summons for insufficiency of service. As grounds for the motion, TI contends that Martin is not a duly appointed registered agent authorized to accept service of process or an executive officer of the defendant corporation. Consequently, TI maintains that service is insufficient under Rule 4(h) of the Federal Rules of Civil Procedure. Plaintiff has filed a response to the motion and this matter is ripe for determination.
II.
The rules governing service of process are set forth in Rule 4 of the Federal Rules of Civil Procedure. A domestic or foreign corporation may be served pursuant to the law of the state in which the district court is located. See FED. R. CIV. P. 4(e)(1) (h)(1). Under Texas law, the president, vice-president, and registered agent of a corporation "shall be agents of such corporation upon whom any process . . . may be served." TEX. BUS. CORP. ACT ANN. art. 2.11(a) (Vernon Supp. 2002). Service may be effected personally by a sheriff, constable, or other person authorized by law, or by registered or certified mail. See TEX. R. CIV. P. 103 106(a). However, the federal rules impose a duty on a defendant to avoid unnecessary costs of serving the summons. See FED. R. CIV. P. 4 (d). "To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. Id.
Rule 4(h)(1) of the Federal Rules of Civil Procedure authorizes service on a domestic or foreign corporation in a similar manner:
Unless otherwise provided by federal law, service upon a domestic or foreign corporation . . . shall be effected:
— in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process . . .
FED. R. CIV. P. 4(h)(1) (emphasis added).
III.
TI correctly notes that plaintiff has failed to obtain proper service in this case. Suzanne Martin is neither the president, vice-president, nor registered agent of Texas Instruments, Inc. Accordingly, TI's motion to quash should be granted.
The Court further determines that additional assistance should be provided to plaintiff to help him effect proper service on this defendant. To that end, the district clerk shall send plaintiff a Waiver of Service of Summons form. FED. R. CIV. P. App., Form 1A. Counsel for defendant shall provide plaintiff with the names and addresses of the president, vice-president, and registered agent of Texas Instruments, Inc. by May 8, 2002 . Alternatively, counsel may agree to accept the waiver form on behalf of TI and so notify plaintiff. A copy of the notice sent to plaintiff shall also be filed with the Court. Upon receipt of this information, plaintiff shall send two copies of the waiver form and a copy of his complaint by first class mail to either: (1) the president, vice-president, or registered agent of Texas Instruments, Inc.; or (2) counsel for defendant, if counsel agrees to accept the Waiver of Summons form. TI is reminded that "[a]n individual, corporation, or association that is subject to service under [Rule 41 (e), (f), or (h) and that receives notice of an action in the manner provided in [Rule 4(d)] has a duty to avoid unnecessary costs of serving the summons." FED. R. CIV. P. 4(d)(2). The Court will not hesitate to impose costs on TI if it fails to comply with the request for waiver without good cause. FED. R. CIV. P. 4(d).
If TI waives services, plaintiff shall promptly file the executed waiver form with the district clerk. If TI fails to return the executed Waiver of Service form to plaintiff within 30 days after receipt, plaintiff shall so notify the Court. The United States Marshal then will be instructed to serve the president, vice-president, or registered agent of Texas Instruments, Inc. at the address provided by counsel for defendant. See Monroe v. Texas Utilities Co., 2002 WL 413866 at 3-4 (N.D. Tex. Mar. 11, 2002) (Kaplan, M.J., rec. adopt'd by Fitzwater, J.) (establishing similar procedure to assist pro se plaintiff in obtaining service of process).
RECOMMENDATION
Defendant's motion to quash for insufficiency of service of process should be granted. The parties should be instructed to proceed in accordance with the terms of this recommendation.