Opinion
Civil Action No. 3:04-CV-0679-G.
August 9, 2004
MEMORANDUM ORDER
Before the court is the motion of the defendant Atrium Companies, Inc. ("Atrium) to dismiss the plaintiff's claim against it. For the following reasons, the motion is denied.
I. BACKGROUND
On April 1, 2004, pro se plaintiff Anthony R. Jackson ("Jackson") filed his complaint against Atrium. The complaint contained only the following statement: "Racial discrimination that resulted in career ending injury." Complaint.
On April 2, 2004, Jackson mailed to Atrium a copy of a document published by the United States District Court for the Northern District of Texas entitled "Instructions to Pro Se Plaintiff." Defendant's Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(4) and (5) for Insufficiency of Process and Service of Process and 12(b)(6) for Failure to State a Claim Upon Which Relief Can Be Granted ("Motion") at 1; Appendix to Defendant's Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(4) and (5) for Insufficiency of Process and Service of Process and 12(b)(6) for Failure to State a Claim Upon Which Relief Can Be Granted ("Appendix") at 2-3.
On June 14, 2004, Jackson mailed a summons dated June 14, 2004 to Atrium via certified mail. Motion at 1; Appendix at 4-5. On June 18, 2004, Jackson filed a return of service. This document stated that the "name of server" was "certified mail" and that the "[n]ame of person with whom the summons and complaint were left" was Erika Ramirez ("Ramirez") at Atrium. Appendix at 6.
In a letter dated June 18, 2004, counsel for Atrium advised Jackson that the April 2, 2004 and June 14, 2004 mailings from Jackson "[did] not constitute service of process in accordance with Federal Rule of Civil Procedure . . . 4." Appendix at 7. A copy of Federal Rule of Civil Procedure 4 was attached to that letter. See Appendix at 7, 9-13. Jackson received this information via certified mail. Motion at 2; Appendix at 8. Counsel for Atrium sent Jackson a similar letter on June 22, 2004. Motion at 2; Appendix at 14.
On June 23, 2004, the clerk of court issued a new summons. Appendix at 15. On June 25, 2004, Jackson mailed Atrium, via certified mail, a copy of that summons and the complaint. Motion at 2; Appendix at 15-17. On June 28, 2004, Jackson filed a return of service. This document stated that the "name of server" was "postal/certified mail" and that the "[n]ame of person with whom the summons and complaint were left" was Nelda Fernandez ("Fernandez") at Atrium. Appendix at 18.
On July 2, 2004, Atrium filed this motion to dismiss Jackson's claim pursuant to Federal Rule of Civil Procedure 12(b)(4) and (5) for insufficiency of process and service of process and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Jackson has not responded to the motion.
On July 14, 2004, the clerk of court issued a new summons. Unlike the previous summons, this summons was addressed to an individual at Atrium — Philip J. Ragona. On July 22, 3004, Jackson filed a return of service. This document stated that the "name of server" was "certified mail" and that the "[n]ame of person with whom the summons and complaint were left" was Monica D. Longoria ("Longoria") at Atrium.
II. ANALYSIS A. Motion to Dismiss for Improper Service of Process
Although Jackson is proceeding pro se, this fact does not exempt him from complying with the rules of service. Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (per curiam). Under Federal Rule of Civil Procedure 4(m), service of the summons and complaint must occur within 120 days of the filing of the complaint. Federal Rule of Civil Procedure 4(h), provides that service of process on a corporation may be had as follows:
[u]nless otherwise provided by federal law, . . . 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.
Federal Rule of Civil Procedure 4(e)(1), which is referenced in this rule, provides for service upon an individual "pursuant to the law of the state in which the district court is located. . . ." FED. R. CIV. P. 4(e)(1). Texas Rule of Civil Procedure 103 provides that a sheriff, a constable, or any person authorized by law or by written order of the court not less than 18 years of age and who is not a party to or interested in the outcome of the suit may serve any process. Id. (emphasis added). Under Texas Rule of Civil Procedure 106(a)(2), a person authorized by Texas Rule of Civil Procedure 103 may serve a defendant 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." Jackson is a party to this action. Accordingly, Jackson's attempts to serve Atrium were ineffective. See Gilliam v. County of Tarrant, 2004 WL 816394 (5th Cir. April 15, 2004) (per curiam).
Additionally, Jackson served Atrium — not an authorized agent of Atrium — via certified mail. Ramirez, Fernandez, and Longoria signed certified mail receipts for these mailings on various occasions. Neither Ramirez nor Fernandez is a registered agent of the corporation. Motion at 4. Thus, mailing the complaint and summons to Atrium was insufficient under Texas law to effectuate service on Atrium.
Furthermore, absent waiver of service by Atrium, service by certified mail is improper. FED. R. CIV. P. 4. There is no evidence in the record indicating that Jackson requested Atrium to waive service or that Atrium did waive service. Jackson, by not responding to the motion, has presented no evidence to the contrary.
The court assumes that Longoria is also not an authorized agent for Atriumn. See Defendant's Supplement to Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(4) and (5) for Insufficiency of Process and Service of Process and 12(b)(6) for Failure to State a Claim Upon Which Relief Can Be Granted at 1-2.
B. Motion to Dismiss for Failure to State a Claim
A complaint need only recite a short and plain statement of the claim showing that the pleader is entitled to relief. FED. R. CIV. P. 8(a). Thus, a motion under FED. R. Civ. P. 12(b)(6) should be granted only if it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994). The court must accept as true all well-pleaded facts in the complaint and construe the complaint liberally in favor of the plaintiff. Norman v. Apache Corporation, 19 F.3d 1017, 1021 (5th Cir. 1994). The court should also give the plaintiff an opportunity to amend his complaint, rather than dismiss it, if it appears that a more carefully drafted complaint might state a claim upon which relief could be granted. Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir. 1985); see also Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 597-99 (5th Cir. 1981). In applying this standard, it must be noted that "a pro se complaint, 'however inartfully pleaded, must be held to 'less stringent standards than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir. 1986). But see United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (noting that although pro se pleadings are construed liberally, all litigants must abide by rules of procedure).
Although Jackson's complaint is not artful, it suffices to give Atrium fair notice that Jackson is asserting a claim of race discrimination. See Conley, 355 U.S. at 47 (holding that "all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests"). In light of Jackson's pro se status, and because it is unclear from Jackson's complaint whether he can plead facts sufficient to support his claim of racial discrimination, he shall have leave to amend his complaint within twenty days of this date. Failure to amend within that time will result in dismissal, without further notice, of Jackson's claim against Atrium.
III. CONCLUSION
For the reasons stated above, Atrium's motion to dismiss is DENIED. Within twenty (20) days of the entry of this memorandum order, however, Jackson SHALL FILE an amended complaint and serve that amended complaint — together with a summons — in conformity with the Federal Rules of Civil Procedure and this memorandum order. A failure to do so may subject Jackson to sanctions, including dismissal of this action without further notice.SO ORDERED.