Opinion
No. 3-02-CV-1585-D
August 27, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendants George R. Collins, Theo Bedard, Patricia Diaz-Hartline, and George M. Barnes, appearing amicus curiae, have filed a motion to dismiss or quash for insufficiency of service of process. For the reasons stated herein, the motion should be conditionally granted.
The Civil Justice Expense and Delay Reduction Plan adopted by this court provides that "[e]ach judge will continue to give priority to the monitoring and resolution of pending motions." Plan at § XI(2), reprinted in Texas Rules of Court — Federal at 278 (West Pamph. Supp. 2002). To eliminate undue delay and unnecessary expense to the parties in this and other civil actions, and because defendants have been ordered to cooperate with plaintiff in obtaining proper service, the court will rule on the motion without a written response.
I.
This is a pro se civil action brought by Plaintiff Stephen James Larrew against the American Bar Association, the State Bar of Texas, and various judges, lawyers, and state officials under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq. Collins, Bedard, Diaz-Hartline, and Barnes are four of 14 defendants named in the complaint. On July 26, 2002, summonses were issued to each named defendant and served by certified mail, return receipt requested. Each return of service is signed by Donald Evans, a notary public. Defendants now move to dismiss this action or quash service because Evans is not authorized to serve process by certified mail under Texas law.II.
The rules governing service of process are set forth in Rule 4 of the Federal Rules of Civil Procedure. An individual within a judicial district of the United States may be served:
(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or law to receive service of process.
See FED. R. CIV. P. 4(e). Plaintiff opted to serve the defendants by certified mail, return receipt requested, ostensibly in conformity with Texas law. Rule 106 of the Texas Rules of Civil Procedure provides, in pertinent part:
(a) Unless the citation or order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by
(2) 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.
TEX. R. Civ. P. 106(a)(2). Rule 103, in turn, provides that service must be made by "any sheriff TEX. R. Civ. P. 106(a)(2). Rule 103, in turn, provides that service must be made by "any sheriff or constable or other person authorized by law, or by any person authorized by law or by written order of the court who is not less than eighteen years of age." TEX. R. Civ. P. 103. The rule also permits the clerk of court to effect service by registered or certified mail. Id.
Defendants correctly note that Donald Evans, a notary public, does not fall within the class of persons authorized to effect service by certified mail under Texas law. See Delta Steamships Lines, Inc. v. Albano, 768 F.2d 728, 729 (5th Cir. 1985) (service by certified mail improper when not made by sheriff, constable, or court clerk). Accordingly, their motion to quash should be granted.
III.
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. Because plaintiff is proceeding pro se, the court determines that additional assistance should be provided to help him effect proper service. To that end, the district clerk shall send plaintiff a Waiver of Service of Summons form. FED. R. Civ. P. App., Form lA. Assistant Attorney General Daniel E. Maeso, counsel for defendants, shall notify plaintiff in writing by September 17, 2002 whether he will accept the waiver forms on behalf of Collins, Bedard, Diaz-Hartline, and Barnes. 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: (1) Collins, Bedard, Diaz-Hartline, and Barnes; or (2) counsel for defendants, if counsel agrees to accept the Waiver of Summons forms. Defendants are reminded that "[am individual, corporation, or association that is subject to service under [Rule 4](e), (f), or (h) and unnecessary costs of serving the summons." FED. R. Civ. P. 4(d)(2). The court will not hesitate to impose costs on defendants if they fail to comply with the request for waiver without good cause. FED. R. Civ. P. 4(d).
If defendants waive service, plaintiff shall promptly file the executed waiver forms with the district clerk. If defendants fail to return the executed Waiver of Service forms to plaintiff within 30 days after receipt, plaintiff shall so notify the court. The United States Marshal then will be instructed to serve the defendants with process. 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
Defendants' 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.