Ortiz-Sornson v. McDonald, 16-cv-174

• Decision Date: 22 February 2017
• Docket Number: No. 16-cv-174,16-cv-174
• Parties: PATRICIA ORTIZ-SORNSON Plaintiff, v. RHONDA MCDONALD, MARLENE HOLLIER, STEVEN SCHNEE, and MENTAL HEALTH MENTAL RETARDATION AGENCY OF HARRIS COUNTY Defendants.
• Court: U.S. District Court — Southern District of Texas

PATRICIA ORTIZ-SORNSON Plaintiff, v. RHONDA MCDONALD, MARLENE HOLLIER, STEVEN SCHNEE,and MENTAL HEALTH MENTAL RETARDATION AGENCY OF HARRIS COUNTY Defendants.

No. 16-cv-174

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

ENTERED: February 23, 2017

February 22, 2017

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS FOR IMPROPER SERVICE

Pending before the Court is Defendants' Motion to Dismiss, filed on September 29, 2016, alleging improper service. [Doc. 23]. On November 16, 2016, United States District Judge Keith P. Ellison referred this motion for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). [Doc. 26].

I. BACKGROUND

This is an employment discrimination case. On January 20, 2016, Plaintiff sued the Mental Health Mental Retardation Agency of Harris County, now known as the Harris Center for Mental Health and IDD ("the Harris Center"); Rhonda McDonald ("McDonald"); Marlene Hollier ("Hollier"); and Dr. Steven Schnee ("Schnee") (all four Defendants collectively referred "the Harris Center Defendants"), alleging race discrimination, violation of the Family Medical Leave Act ("FMLA"), and intentional infliction of emotional distress. [Doc. 1].¹ Withoutattempting service of process and before any of the Defendants filed an answer or other responsive pleading to the original complaint, on February 29, 2016, Plaintiff amended her complaint. [Doc. 3].

On March 9, 2016, forty-eight days after filing suit, Plaintiff used a process server and attempted to serve the amended complaint on the Harris Center Defendants. [Doc. 24 Ex. 1 ¶ 2].² Plaintiff claims that the process server left the summons and amended complaint with a paralegal at the offices of the Harris Center for all four Defendants. Id. at ¶¶ 13-15. On March 11, 2016, counsel for the Harris Center Defendants notified Plaintiff's counsel of deficiencies in the attempted service. [Doc. 23 pg. 8 Ex. E]. Plaintiff's counsel "decided to ignore Defendants' attorney's letter" because he believed that all of the Harris Center Defendants were properly served. [Doc. 24 ¶¶ 16-18 (emphasis added)]. Plaintiff failed to file proof of the March service of the amended complaint. The Harris Center Defendants did not file any responsive pleading to the amended complaint.

On July 29, 2016, Plaintiff filed a second amended complaint against the Harris Center Defendants. [Doc. 20]. On September 8, 2016, more than seven months after filing the original complaint, Plaintiff asserts that she again attempted service on the Harris Center Defendants, "as a courtesy." [Doc. 24 ¶ 17]. Plaintiff "decided to serve" the Harris Center by serving Schnee, but he was unavailable, so again copies were left with his office. Id. Later, Plaintiff purportedly mailed copies of the summons and amended complaint to Harris Center, again "as a courtesy." Id. McDonald and Hollier were served in person. Id. On September 23, 2016, Plaintiff filed a proof of service for Hollier, McDonald, and the Harris Center, but not Schnee, for the September service. [Doc. 21].

On September 29, 2016, the Harris Center Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), 12(b)(4), and 12(b)(5), alleging a lack of personal jurisdiction and insufficient service of process. [Doc. 23].

II. PLAINTIFF MUST SERVE SUMMONS AND COMPLAINT WITHIN 90 DAYSOF FILING

"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Rule 4 requires that a summons "be served with a copy of the complaint." Fed. R. Civ. P. 4(c). Service must be done "within 90 days after the complaint is filed." Fed. R. Civ. P. 4(m). A person may be served by:

(1) 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; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e). A state-created governmental organization must be served by

(A) delivering a copy of the summons and of the complaint to its chief executive officer; or

(B) serving a copy of each in the manner preserved by that state's law.

Fed. R. Civ. P. 4(j)(2)(A)-(B).

To accomplish service under Texas law, a party can deliver the summons to the defendant in person or mail it to the defendant by registered or certified mail, return receiptrequested. Tex. R. Civ. P. 106(a)(1)-(2). If service is effected through the mail, the process server must execute a return of service that states how the defendant was served and contains the return receipt with the addressee's signature. Tex. R. Civ. P. 107(b)-(c). After service, a plaintiff must file proof of service, unless service is waived or a marshal effected service. Fed. R. Civ. P. 4(l).

The rules contain a strict time limit for the service. Rule 4(m) provides:

If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m) (emphasis added). Even if the plaintiff lacks good cause, the court has discretionary power to extend the time for service. Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 325 (5th Cir. 2008) (citing Rule 4(m) advisory committee's note (1993)).

When a party challenges service, the serving party has the burden to show either the validity of the service or good cause for her failure to effect timely service. Carimi v. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1993). In most cases, the serving party need only file proof of service with the court. Parker v. Missouri City, Tex., No. 4:12-cv-2484, 2014 WL 7004061, at *4 (S.D. Tex. Dec. 10, 2014) (Harmon, J.). If there is no defect on the face of the return, the defendant must submit admissible evidence that shows service was not proper. Id.; see Fed. R. Civ. P. 12(b)(5). The burden then shifts to the plaintiff to provide admissible evidence that shows service was proper or a fact issue exists and requires an evidentiary hearing. Parker, 2014 WL 7004061, at *4.

III. ANALYSIS

A. Plaintiff Failed to Serve the Harris Center Defendants Properly

1. Plaintiff failed to serve the amended complaint properly in March

The Harris Center Defendants argue that the case should be dismissed in its entirety because Plaintiff failed to serve them with a summons and the amended complaint—filed on January 20, 2016—within ninety days of filing the original complaint. [Doc. 23 pgs. 7-10]. Plaintiff argues that she effected service on all four Defendants when her process server left a copy of the summons and amended complaint with a paralegal for the Harris Center in March 2016. [Doc. 24 ¶¶ 14-15].

The Harris Center Defendants initially assert that service is defective because the process server failed to include the amended complaint with the summons. [Doc. 23 pg. 8, Ex. 2 ¶ 3 (Aff. of paralegal Christina Gerardo)]. Plaintiff never filed the return summons from March. In support of her response to the motion to dismiss, however, Plaintiff relies on her process server's affidavit that swears he left both the summons and amended complaint when he served the paralegal on behalf of all four of the Defendants on March 9, 2016. [Doc. 24 Ex. 1 ¶¶ 2-3]. This would ordinarily create a fact question as to the sufficiency of service in March. See Parker, 2014 WL 7004061, at *4.

However, Plaintiff failed to establish that leaving the summons with the Harris Center paralegal for each Defendant was proper service under the federal rules or Texas law. [Doc. 24 Ex. 1 ¶¶ 2]. In fact, Plaintiff's service on the paralegal was insufficient for all Defendants.

The Harris Center could be served only through its chief executive officer, Fed. R. Civ. P. 4(j)(2)(A), or certified mail, return receipt requested, Tex. R. Civ. P. 106(a)(2). Since Plaintiff did neither, service on the Harris Center was ineffective.

Hollier, McDonald, and Schnee could be served a summons and complaint either inperson, if left with a suitable person at their residence, if served on an agent authorized by appointment or by law to receive service of process, or through the mail. See Fed. R. Civ. P. 4(e); Tex. R. Civ. P. 106(a)(1)-(2). With respect to service on Schnee, Plaintiff claims that the paralegal said that she was authorized to accept service. [Doc. 24 ¶ 14.] With respect to Hollier and McDonald, Plaintiff relies on her process server to assert that the paralegal was a person authorized to receive service. [Doc. 24 ¶ 15.] The process server's affidavit swears that, in his experience, the paralegal had the authority to accept the summons for the agency, but he makes no such statement with respect to the individual Defendants. [Doc. 24 Ex. 1 ¶ 2]. Thus, Plaintiff has failed to prove that the paralegal had actual authority to accept service for any of the Defendants. See Maiz v. Virani, 311 F.3d 334, 340 (5th Cir. 2002) (finding invalid service because there was no evidence that attorney had "actual authority to accept service of process"); see also 4A Wright & Miller, Federal Practice and Procedure, § 1097 ("the fact that an agent actually accepts process is not enough to bind the defendant to the court's jurisdiction; there must be evidence that the defendant intended to confer that authority upon the agent in order to satisfy the...