Opinion
CIVIL ACTION NO. 4:18-CV-0141
10-25-2018
DAN MICHAEL PANNELL, Plaintiff, v. WELLS FARGO HOME MORTGAGE, ET AL., Defendants.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the motion to dismiss of Jeffrey Williams under Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process. Dkt. 84. Plaintiff has not filed a timely response. The court recommends that Williams's motion be granted.
The district court has referred this matter to this magistrate judge for report and recommendation. Dkt. 49.
Federal Rule of Civil Procedure 12(b)(5) permits a named defendant to challenge proper service of the summons and complaint. The court lacks personal jurisdiction over a defendant unless that defendant has been served in accordance with Federal Rule of Civil Procedure 4. Hicks v. Dallas Cty. Community Colleges, Civil Action No. 3:17-CV-809, 2018 WL 2271174 * 3 (N.D. Tex. April 25, 2018). If a defendant raises a Rule 12(b)(5) challenge, it is the plaintiff's burden to prove that service was proper. Id.; Kruger v. Hartsfield, Civil Action No. 3:17-CV-01220, 2018 WL 2090743 *2 (N.D. Tex. April 13, 2018).
The Court sees no evidence demonstrating that Plaintiff perfected personal service on Jeffrey Williams, Harris County Justice of the Peace for Precinct 5, Place 2. The return on file (Dkt.16) indicates that a summons for Jeffrey Williams at 6127 Hwy. 6 North, Houston, Texas 77074, was served on "Bill Henderson (Legal Counsel) at 1001 Preston Street, #911, Houston, TX 77002." Service on Bill Henderson is not effective service on the individual Jeffrey Williams under Federal Rule of Civil Procedure 4(e), Texas Rule of Civil Procedure 106, or any other state or federal law. There is no evidence that Bill Henderson was authorized to accept service on behalf of Williams, and there is no evidence that the Williams either does not live in Harris County or could not be found in Harris County as required for service on an authorized agent under Texas Civil Practice and Remedies Code §17.021(a). Because Plaintiff has not shown that he has properly served Williams, Plaintiff's claims against Williams in this case should be dismissed without prejudice.
To the extent Plaintiff intends to assert a claim against Williams in his official capacity, he has not properly served County Judge Ed Emmett, the chief executive officer of Harris County, as required by Federal Rule of Civil Procedure 4(j)(2) and Texas Civil Practice and Remedies Code §17.024(a). The district court has already dismissed Harris County Precinct 5 as a defendant in this case. Dkt. 43.
A dismissal under Rule 12(b)(5) is generally without prejudice. See Kruger v. Hartsfield, Civil Action No. 3:17-CV-01220, 2018 WL 2090743 4 (N.D. Tex. April 13, 2018).
For the reasons stated above, the court recommends that Williams's Motion to Dismiss (Dkt. 84) be GRANTED and Plaintiff's claims against Jeffrey Williams be dismissed without prejudice.
The Clerk of the Court shall send copies of the memorandum and recommendation to the respective parties, who will then have fourteen days to file written objections, pursuant to 28 U.S.C. § 636(b)(1)(c). Failure to file written objections within the time period provided will bar an aggrieved party from attacking the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds.
The original of any written objections shall be filed with the United States District Clerk, P.O. Box 61010, Houston, Texas 77208; copies of any such objections shall be delivered to the chambers of Judge Vanessa D. Gilmore, Room 9513, and to the chambers of the undersigned, Room 8608. Signed on October 25, 2018, at Houston, Texas.
/s/_________
Christina A. Bryan
United States Magistrate Judge