Henderson v. Republic of Tex. Biker Rally, Inc., 1-15-CV-392 RP

• Decision Date: 06 November 2015
• Docket Number: 1-15-CV-392 RP
• Parties: MICHELLE HENDERSON, Plaintiff, v. REPUBLIC OF TEXAS BIKER RALLY, INC., ET AL.,, Defendants.
• Court: U.S. District Court — Western District of Texas

MICHELLE HENDERSON, Plaintiff, v. REPUBLIC OF TEXAS BIKER RALLY, INC., ET AL.,, Defendants.

1-15-CV-392 RP

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

November 6, 2015

ORDER

Before the Court are Defendants Republic of Texas Biker Rally, Inc., Travis County, Travis County Judge Sarah Eckhardt and Travis County Sheriff Greg Hamilton's Joint Motion to Dismiss, filed August 17, 2015 (Clerk's Dkt. #29) and the responsive pleadings thereto. After reviewing the pleadings, relevant case law, as well as the entire case file, the Court issues the following order.

I. BACKGROUND

Plaintiff Michelle Henderson ("Henderson") originally filed this action in the 126th Judicial District Court of Travis County, Texas on July 30, 2014. In April 2015 she filed an amended petition naming as defendants the Republic of Texas Biker Rally, Inc. ("ROT"), Jeffrey Kenneth Green ("Green"), Dan Milton Davison ("Davison"), Travis County, Travis County Judge Sarah Eckhardt ("Eckhardt") and Travis County Sheriff Greg Hamilton ("Hamilton"). The action was removed to this court on May 12, 2015.

This action arises from an event held annually at the Travis County Exposition Center known as the ROT Rally. By way of her complaint filed after removal of this action, Henderson states she attended the ROT Rally on June 13, 2013. She states while seated in a chair at an official campsite, she was struck by a golf cart and injured. According to Henderson, the golf cart was owned by Davison, who drove it to a mobile bar and left to get a drink, leaving Green in the passenger seat.

A crowd which was gathered at the bar to view entertainment being provided at the mobile stripper pole began demanding the golf cart be moved to alleviate congestion. Henderson alleges Green, without moving from the passenger seat, pressed the gas pedal of the golf cart. She further alleges Green lost control of the golf cart, hit another cart, and then hit Henderson, pinning her to the ground. According to Henderson, witnesses reported Green smelt strongly of alcohol. (Plf. 3rd Am. Compl. ¶¶ 22-30).

Plaintiff asserts a cause of action for negligence against Green and Davison, as well as against ROT. (Id. ¶¶ 75-83; 91-99). Plaintiff further asserts a cause of action for negligent entrustment against Davison. (Id. ¶¶ 84-90). Plaintiff additionally asserts a cause of action under 42 U.S.C. § 1983 ("Section 1983") against Travis County, Eckhardt and Hamilton. (Id. ¶¶ 100-12). Plaintiff also asserts a cause of action for negligence against Travis County under the Texas Tort Claims Act. (Id. ¶¶ 113-23).

ROT, Travis County, Eckhardt and Hamilton (collectively "Moving Defendants") have now moved to dismiss Plaintiff's claims against them on a number of bases. Specifically, they contend: (1) Plaintiff's claims against them are barred by the statute of limitations; (2) Plaintiff's claims should be dismissed for failure to timely effectuate service; (3) Plaintiff has failed to state a claim for relief under Section 1983; (4) Eckhardt and Hamilton are protected by qualified immunity; (5) Travis County and ROT are protected by sovereign immunity; (6) ROT is protected from Plaintiff's claims under the Texas recreational use statute; and (7) Plaintiff's negligence claims fail because no duty was owed to her. The parties have filed responsive pleadings and the motion is ripe for review.

II. SERVICE ISSUES

In two related arguments, Moving Defendants argue Plaintiff has not complied with her obligation to timely serve them prior to the expiration of the statute of limitations. They contend her claims against them should be dismissed under Rule 12(b)(4), 12(b)(5) and 12(b)(6).

A. Applicable Law

A court may dismiss a case both for "insufficiency of process" and for "insufficiency of service of process." FED. R. CIV. P. 12(b)(4) & (5). When service is challenged, the party responsible for service bears the burden of establishing its efficacy. Sys. Signs Supplies v. United States Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990). Dismissal of a claim under Rule 12(b)(6) as barred under the applicable statute of limitations is proper where it is evident from the plaintiff's pleadings that the action is barred and the pleadings fail to raise some basis for tolling. See Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (dismissing where amended complaint failed to allege or even remotely suggest plaintiffs were not aware of discrimination during their employment). See also Kansa Reinsurance v. Cong. Mortg. Corp., 20 F.3d 1362, 1366-70 (5th Cir. 1994) (dismissing claim as time barred where claim was clearly filed after applicable limitations statute had run and it was evident from pleadings that plaintiff was not entitled to benefit of discovery rule).

B. Discussion

Claims for negligence are governed by a two year statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (establishing two year limitations period for tort claims); TIG Ins. Co. v. Aon Re, Inc., 521 F.3d 351, 354-55 (5th Cir. 2008) (negligence claims must be brought not later than two years after cause of action accrues); OneBeacon Ins. Co. v. Don's Building Supply, Inc., 496 F.3d 361, 363 n.5 (5th Cir. 2007) (two-year limitations period applies to claims for negligence). Section 1983 has no statute of limitations period, thus federal courts apply the state prescription statute governing the most analogous cause of action. Braden v. Texas A & M Univ. Sys., 636 F.2d 90, 92 (5th Cir. 1981). In Texas, a two-year statute of limitations applies to constitutional injury claims. Hitt v. Connell, 301 F.3d 240, 246 (5th Cir. 2002); Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001).

As to Plaintiff's state law negligence claims, the Texas Supreme Court "long ago established the rule that the mere filing of a suit will not interrupt or toll the running of a statute of limitation; that to interrupt the statute, the use of diligence in procuring the issuance and service of citation is required." Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970). See Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) ("a timely filed suit will not interrupt the running of limitations unless the plaintiff exercises due diligence in the issuance and service of citation"); Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (to "bring suit" within limitations period, plaintiff must not only file timely, but must also use diligence to have the defendant served with process). When a plaintiff files a petition within the limitations period, but does not serve the defendant until after the statutory period has expired, the date of service relates back to the date of filing if the plaintiff exercised diligence in effecting service. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975).

In this case, Plaintiff's cause of action accrued on June 13, 2013. There is no dispute that Plaintiff filed suit within the two year limitations period. The relevant questions are whether Plaintiff properly served Moving Defendants prior to the expiration of the limitations period and, if she did so thereafter, whether she exercised due diligence.

1. Service on ROT

As to ROT, Plaintiff contends she attempted to seek a waiver of service by request mailed to counsel for ROT on June 11, 2015. (Plf. Resp. ¶ 25 & Ex. 5). Plaintiff also attempted to serve ROT by serving its registered agent on June 12. (Id. & Ex. 6). According to Plaintiff, she finally served ROT's registered agent on June 15. (Id. ¶ 10 & Ex. 6). While Plaintiff concedes services was not within the required two year period, she suggests her actions meet the due diligence standard and thus service should be considered timely.

ROT, however, maintains the evidence submitted by Plaintiff fails to establish she has actually effected proper service upon it. Under Rule 4 of the Federal Rules of Civil Procedure, a corporation must be served either:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant.

FED. R. CIV. P. 4(h)(1). Under Rule 4(e)(1), service may be effected by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." FED. R. CIV. P. 4(e)(1). Texas law authorizes service on a corporation through the corporation's registered agent, president, or vice president. TEX. BUS. ORGS. CODE ANN. §§ 5.201(b)(1) & 5.255(1). Service on a corporation's registered agent is properly accomplished at the registered agent's registered office or through the Secretary of State. Id. §§ 5.201(b), (c) & § 5.251.

Here, the evidence provided by Plaintiff shows the summons were issued to Lynn Castagna, who Plaintiff states she believed was representing ROT. (Plf. Resp. ¶ 3 n.3 & Ex. 5). Ms. Castagna is not ROT's registered agent, president, or vice president under Texas law, nor is she "an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process" on behalf of ROT under Rule 4(h)(1)(B). Plaintiff has thus failed to properly serve ROT under Rule 4. See Lawson v. GEICO, 2015 WL 6161247, at *2 (W.D. Tex. Oct. 19, 2015) (service insufficient where summons issued to outside counsel rather than corporate defendant's registered agent or other individual with authority to accept service); Chhim v. Huntleigh USA Corp., 2014 WL 801023, at *2-3 (S.D. Tex. Feb. 28, 2014) (service insufficient where plaintiff mailed copy of complaint to outside counsel). Moreover, the evidence establishes ROT's registered agent was not served at the agent's registered office as required by Texas law. (Plf. Resp....