Opinion
Civil Action 4:23-cv-1108
08-01-2023
HAYWOOD MACK ROSS, Plaintiff, v. AVALA HOUSTON CORPORATION ET AL., Defendants.
MEMORANDUM AND RECOMMENDATION
CHRISTINA A. BRYAN UNITED STATES MAGISTRATE JUDGE.
Plaintiff, proceeding pro se and informa pauperis, filed a Complaint in this Court on March 17, 2023 naming as Defendants CEO Avala Stafford DE, LLC, Avala Houston Corporation, and Avala (Country Place Dr.). ECF 1. To date, Plaintiff has not filed proof of proper service and no defendant has appeared. The Court recommends that this case be dismissed without prejudice for failure to timely serve Defendants.
The District Judge referred the case to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. ECF 3.
A quick search of the Court's database reveals that Plaintiff has filed at least 18 prior federal lawsuits. In some cases, Plaintiff was denied permission to proceed in forma pauperis. See, e.g., Ross v. U.S. Dep't Veteran Affairs et al., 4:01-mc-0160; Ross v. Jim Walter Homes, 4:06mc0251. All cases filed by Plaintiff have been dismissed by the Court. Ross v. State of Texas et al., 4:10cv2008; Ross v. City of Wharton, 4:21cv3676.
Plaintiff's Complaint gives the address of Defendant Avala (Country Place Dr.) as 3719 Country Place Drive, Stafford, Texas 77477. ECF 1 at 2. Plaintiff's address is 3719 Country Place Drive, Apartment #207, Stafford, Texas 77477. Id. at 1. Avala (Country Place Dr.) is a physical apartment complex, not a person or entity capable of being sued. Therefore, delivery of a summons and complaint to “Avala (Country Place Dr.)” at the address 3719 Country Place Drive does not constitute effective service in this case.
Avala is apparently a misspelling of Avaya. Avaya Stafford is an apartment complex located at 3719 Country Place Drive, Stafford, Texas 77477. See https://www.avayastafford.com/ (last visited July 25, 2023).
Plaintiff's Complaint gives the address of Defendant Avala Houston Corporation as 3000 Post Oak Blvd., Houston, Texas 77056. Id. When Deputy U.S. Marshal L. Hernandez attempted service at 3000 Post Oak Blvd., the receptionist stated that Avala Houston Corporation is not located at this address and Deputy Hernandez returned the summons unexecuted. ECF 6.
Plaintiff's Complaint gives the address of Defendant CEO Avala Stafford DE, LLC, as “SUPRA,” presumably intending to reference the 3000 Post Oak Blvd. address. ECF 1 at 2. The clerk's office did not issue a summons for CEO Avala Stafford DE, LLC because no address was listed on the Complaint.
“CEO” in the style of this case is a typographical error for “CEP,” which is the spelling Plaintiff uses later in the Complaint. CEP Avaya Stafford DE LLC is the name of a Texas Foreign LimitedLiability Company with a principal address in Flower Mound, Texas and a registered agent in Irving, Texas. See https://www.bizapedia.com/tx/cep-avaya-stafford-de-llc.html/ (last visited July 25, 2023).
3000 Post Oak Blvd. is the Houston office of Bechtel Corporation. See https://www.bechtel.com/about-us/offices/ (last visited July 25, 2023). It is likely that the receptionist would have given the same “not at this address” response to attempted service on CEO Avala Stafford DE, LLC. at 3000 Post Oak Blvd. given the similarity of the name to Avala Houston Corporation.
A Plaintiff must serve a defendant within 90 days of filing the complaint. FED. R. CIV. PRO. 4(m). Under 28 U.S.C. § 1915, a plaintiff proceeding in forma pauperis in entitled to service by the U.S. Marshal, but it remains the burden of the plaintiff to take steps to make sure service is completed properly. See Dupre v. Touro Infirmary, 235 F.3d 1340 (5th Cir. 2000) (district court did not abuse its discretion in dismissing complaint where pro se, in forma pauperis plaintiff did not attempt to remedy defects in service or explain her failure to effect service). Plaintiff has taken no steps to provide correct addresses for the named Defendants, to have a summons issued for CEO [sic] Avala Stafford DE, LLC, or otherwise to complete service. The Court therefore RECOMMENDS that this case be DISMISSED WITHOUT PREJUDICE for failure to timely serve Defendants under Rule 4(m).
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.