Opinion
Civil Action No. 3:04-CV-1650-D.
October 5, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order of Reference, filed September 2, 2004, Defendant's Motion to Dismiss Under Rule 12(b)(5), filed August 31, 2004, has been referred to this Court for hearing, if necessary, and for recommendation. For the reasons stated herein, the motion should be DENIED.
I. BACKGROUND
This is a pro se race discrimination case brought by Plaintiff David Ridgle ("Ridgle") against his employer, Defendant Lowe's Home Centers, Inc. ("Lowe's"). On July 30, 2004, Ridgle filed a one-page complaint and paid the statutory filing fee. He completed a summons form and mailed the form alone to "Legal Dept., Lowe's Home Centers Inc., P.O. Box 1111, North Wilkesboro, NC, 28656." (Def. Mot. at 1.) Lowe's received this summons on August 11, 2004. Id. On August 31, 2004, Lowe's filed a motion to dismiss the action pursuant to Rule 12(b)(5) for insufficient service of process due to Ridgle's failure to attach a copy of the complaint to the summons. Id. In an Order filed September 7, 2004, this Court ordered Ridgle to respond to Lowe's motion by September 27, 2004. Ridgle has not filed a response in compliance with that order.II. ANALYSIS
Rule 4 of the Federal Rules of Civil Procedure sets forth the rules governing service of process. A foreign or domestic 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. 2001). 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). 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. Regardless of which method of service is employed, a defendant must either be served or waive service within 120 days after the complaint is filed. See FED.R.CIV.P.4(m). If the plaintiff fails to obtain service within this period, the court may either "dismiss the action without prejudice . . . or direct that service be effected within a specified time." Id. Dismissal of the action is not appropriate if "'there is a reasonable prospect that plaintiff ultimately will be able to serve defendant properly.'" Grant-Brooks v. Nationscredit Home Equity Services Corp., No. CIV. A. 3:01-CV-2327-R, 2002 WL 424566, at *4 (N.D.Tex. Mar. 15, 2002) (quoting 5A WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE § 1354, at 289 (West 1990)). Dismissal may be appropriate only if "'there is no reasonably conceivable means of acquiring jurisdiction over the person of a defendant.'" Id. (quoting Stanga v. McCormick Shipping Corp., 268 F.2d 544, 554 (5th Cir. 1959)). As an alternative to dismissal, a district court has discretion to quash service and give the plaintiff an additional opportunity to properly effect service. See Shabazz v. Service Employees Int's Union, No. CIV. A 3:04-CV-229-M, 2004 WL 1585808, at *2 (N.D.Tex. July 13, 2004) (citing Cross v. City of Grand Prarie, No. CIV. A. 3:96-CV-0446-P, 1998 WL 133143, at *7 (N.D. Tex. Mar. 17, 1998); Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d. Cir. 1985); Grant-Brooks, 2002 WL 424566, at *4). Relevant factors for a court to consider in exercising its discretion to quash service or dismiss the complaint include the plaintiff's pro se status and good faith attempt to effect service. See Monroe v. Texas Utilities Company, No. CIV. A. 3:01-CV-1012-D, 2002 WL 413866, at *2-3 (N.D.Tex. Mar. 11, 2002) (Fitzwater, J.).
Rule 4(h)(1) of the Federal Rules of Civil Procedure, authorizing a similar method of service on a foreign or domestic corporation, provides that such service ". . . 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 on 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).
Ridgle has failed to establish that he effected proper service in compliance with Rule 4(c)(1). (Def. Mot. at 2) It nevertheless appears that by mailing the summons, Ridgle made a good faith effort to obtain service on Lowe's. In a similar situation in Monroe v. Texas Utilities Company, the District Court determined that the plaintiff should receive assistance with effecting proper service in order to avoid further delays and unnecessary expense. See Monroe, 2002 WL 413866, at *3. Consistent with that decision, the Court sets forth similar procedures. The district clerk shall send Ridgle a Waiver of Service of Summons form without delay. FED. R. CIV. P. App., Form 1A. By October 15, 2004, Lowe's shall provide Ridgle with the name and address of the registered agent for Lowe's Home Centers, Inc. Ridgle shall then send two copies of this waiver form and a copy of his complaint by first class mail to Lowe's registered agent. The Court reminds Lowe's that "[a]n individual, corporation, or association that is subject to service under [Rule 4](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 Lowe's if it fails to comply with the request for waiver without good cause. FED.R.CIV.P.4(d).
If Lowe's waives service, Ridgle shall promptly file the executed waiver form with the district clerk. If Lowe's fails to return the executed waiver of service form to plaintiff within 30 days after receipt, Ridgle shall serve the registered agent of defendant with a summons and a copy of the complaint either personally or by certified or registered mail. Ridgle must file proof of service with the district clerk by December 15, 2004.
Ridgle is warned that failure to obtain proper service may result in the dismissal of this case under Rule 4(m).
III. CONCLUSION
Lowe's Motion to Dismiss Under Rule 12(b)(5) should be DENIED. However, Lowe's should be permitted to reurge its motion if Ridgle fails to comply with the terms of this order.
SO ORDERED.