Opinion
Civil Action No. 3:04-CV-2691-D.
July 22, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order of Reference, filed April 19, 2005, Plaintiff's Motion for Default Judgment, filed April 15, 2005, was referred to this Court for hearing, if necessary, and determination or recommendation. Also before the Court is Defendants' Response to Plaintiff's Motion for Default Against the Individually Named Defendants, filed May 5, 2005.
I. BACKGROUND
On May 24, 2002, Lilia Petrenko-Gunter ("Plaintiff"), a citizen of Russia, entered the United States under a K-1 visa as the fiancée of Harold Glenn Gunter ("Gunter"), a United States citizen. (Compl. at ¶ 1.) Plaintiff and Gunter were married and, on February 26, 2003, Plaintiff filed an application for adjustment of status to that of lawful permanent resident. Id. at ¶ 3. On February 24, 2004, Plaintiff's application for adjustment of status was denied on the ground that Plaintiff had not provided sufficient documentation to support her application. Id. at ¶ 35. Plaintiff filed a motion to reopen consideration of her application for adjustment of status, which was granted on May 17, 2004. Id. at ¶ 38. On November 1, 2004, Plaintiff's application was again denied. Id. at ¶ 44.
Defendant's motion states that Plaintiff filed her application for adjustment of status on March 6, 2003. (MTD Mem. at 2.)
Plaintiff filed the instant lawsuit on December 21, 2004, seeking injunctive relief and an award of damages. (Compl. at ¶¶ 52, 56, 57.) Plaintiff sued Defendants Upchurch, Barrows, and Lee in both their individual and official capacities. Id. at ¶¶ 6, 7. Service of process was made on Defendant Upchurch via certified mail on December 28, 2004. (Resp. Appx. at 1.) The return of service filed with the District Clerk shows that one copy of the complaint was mailed to: Evelyn Upchurch, USCIS, Director, Texas Service Center, P.O. Box 850965, Mesquite, TX 75185-0965. Id. at 2. Service was made on Defendant Barrows via certified mail on December 27, 2004. Id. at 3. The return of service filed with the District Clerk shows that one copy of the complaint was mailed to: Angela K. Barrows, Director, USCIS, 8101 N. Stemmons Freeway, Dallas, TX 75247. Id. at 4. Service was made on Defendant Lee via certified mail on December 27, 2004. Id. at 5. The return of service filed with the District Clerk shows that one copy of the complaint was mailed to: R. Lee, Adjudications Officer, BCIS, 8101 N. Stemmons Freeway, Dallas, TX 75247. Id. at 6. All Defendant answered the suit in their official capacities, but Defendants Upchurch, Barrows, and Lee did not answer in their individual capacities.
Plaintiff now moves for default judgment against Defendants Upchurch, Barrows, and Lee in their individual capacities pursuant to FED. R. CIV. P. 55(a) and (b)(1), for failure to answer or appear. (M. at 3.)
II. ANALYSIS
Plaintiff asserts that she is entitled to default judgment against Defendants Upchurch, Barrows, and Lee ("Defendants") in their individual capacities because they have failed to answer or appear in this matter after being properly served. (M. at 3.) Defendants assert that they have not been served with process in their individual capacities and that this Court therefore lacks jurisdiction over them. (Resp. at 1-2.)Service of process is governed by Federal Rule of Civil Procedure 4. Pursuant to FED. R. CIV. P. 4(i)(2)(B), "[s]ervice on an officer or employee of the United States sued in an individual capacity for acts or omissions occurring in connection with the performance of duties on behalf of the United States . . . is effected by serving the United States in the manner prescribed by Rule 4(i)(1) and by serving the officer or employee in the manner prescribed by Rule 4(e), (f), or (g)." FED. R. CIV. P. 4 (i)(2)(B).
There is no dispute that the United States was served in accordance with Rule 4(i)(1). Further, subsections (f) or (g) of Rule 4, which respectively pertain to service upon individuals located in a foreign country or alleged to be infants or incompetent persons, are not at issue herein. Accordingly, the Court does not address these subsections.
Rule 4(e) states that service must be effected on an individual within a judicial district of the United States:
(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
In this case, Plaintiff opted to serve Defendants under Rule 4(e)(1), which allows service pursuant to state law. See Hassell v. United States, 203 F.R.D. 241, 245 (N.D. Tex. 1999) (stating that Rule 4(e)(1) allowed the plaintiff to effect service on federal officials sued in their individual capacities pursuant to state law). Specifically, Plaintiff attempted service upon Defendants in both their individual and official capacities by certified mail.
Texas permits service upon an individual by any person authorized by TEX. R. CIV. P. 103 by "mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto." TEX. R. CIV. P. 106(a)(2). When service is effected by registered or certified mail, "the return by the officer or authorized person must also contain the return receipt with the addressee's signature." TEX. R. CIV. P. 107. In the absence of valid service of process, proceedings against a party are void. Aetna Business Credit, Inc. v. Universal Decor Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981). Texas construes the rules regarding service of process strictly, and failure to comply with them renders the attempted service of process invalid and of no effect. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). When service of process is challenged, the party making service has the burden to establish its validity. Id. A. Failure to issue summons for each Defendant
Defendants assert that they have not individually been served in this lawsuit because Plaintiff did not have a separate summons issued for them in their individual capacities. (Resp. at 3.)
As noted above, FED. R. CIV. P. 4(i)(2)(B) provides that when an officer or employee of the United States is sued in his individual capacity for acts or omissions connected with his official duties, service is effected by serving the United States Attorney, the Attorney General of the United States, and the individual defendant via personal service or according to state law regardless of whether the individual is also sued in his official capacity. Defendants do not deny that Plaintiff delivered a copy of the summons and complaint to the United States Attorney for the Northern District of Texas and the Attorney General of the United States, in compliance with FED. R. CIV. P. 4(i)(1). Rather, they complain that only one summons was issued for each Defendant, which listed both their names and their job titles.
Neither federal nor state rules require issuance of two separate summonses in order to effect service on a government official when that official is sued in both his individual and official capacities. Nor has the Court found any federal or state cases requiring issuance and service of two separate summonses. As the rules do not require issuance of separate summonses in such circumstances, the Court concludes that Plaintiff's failure to obtain two summonses for each Defendant is not dispositive of the issue of whether Defendants were properly served in their individual capacities.
B. Service at a Post Office Box
Defendant Upchurch argues that service upon her individually was improper because "[a] post office box is not an abode where service for an individual can be made under TEX. R. CIV. P. 106(a)(2)." (Resp. at 5.)
TEX. R. CIV. P. 106(a)(2) provides that citation may be served by "mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto." Notably, Rule 106(a)(2) does not limit service of process to specific locations. Contrary to Defendant Upchurch's assertion, Texas does permit service of process at a post office box. See Warren v. Zamarron, 2005 WL 1038822 (Tex.App.-Austin, May 05, 2005); Scott v. Spielvogel Spielvogel, 1999 WL 22715 (Tex.App.-Beaumont, Jan. 14, 1999). Accordingly, the fact that Plaintiff attempted to effect service upon Defendant Upchurch by mailing a summons to a post office box does not make the service invalid.
C. Service at an Office Building
Defendants Barrows and Lee assert that service upon them in their individual capacities was improper because "[a]n office building is not an abode where service for an individual can be made under TEX. R. CIV. P. 106(a)(2) by simply addressing a letter to a general mail room." (Resp. at 7, 9.)
As noted in Section B above, Rule 106(a)(2) does not specify acceptable locations for service of process. Texas courts have approved service of process upon individuals at their place of business. See Thompson v. State, 1990 WL 77319 (Tex.App.-Hous. [1 Dist.], Jun. 7, 1990). Therefore, the fact that Plaintiff attempted to effect service upon Defendants Barrows and Lee by mailing a summons to a place of business does not make the service invalid.
D. Failure to Comply with State Procedure
Finally, Defendants claim service of process upon them was invalid because Plaintiff failed to comply with the requirements of TEX. R. CIV. P. 106. (Resp. at 5.)
1. Server
As noted above, Rule 106(a)(2) permits service upon an individual by certified mail, so long as the service is made by a person authorized by TEX. R. CIV. P. 103. Rule 103 provides that service must be made by "(1)any sheriff or constable or other person authorized by law, (2) any person authorized by law or by written order of the court who is not less than eighteen years of age, or (3) any person certified under order of the Supreme Court." TEX. R. CIV. P. 103. Rule 103 also states that "[s]ervice by registered or certified mail . . . must, if requested, be made by the clerk of the court in which the case is pending." Id.
In this case, service of process was made by a notary public. (M. at 3.) Contrary to Plaintiff's claim, a notary public is not a person authorized to effect service by certified mail under Texas law. See TEX. R. CIV. P. 103, cmt.-2005 (setting forth the procedure to become certified to serve process under Rule 103). See also Larrew v. Barnes, 2002 WL 31109713, * 2 (N.D. Tex. Sept. 17, 2002) (Fitzwater, J.) (Finding that a notary public "does not fall within the class of persons authorized to effect service by certified mail under Texas law") (citing Delta Steamships Lines, Inc. v. Albano, 768 F.2d 728, 729 (5th Cir. 1985)).
Plaintiff has not shown that service upon Defendants was made by a person authorized by Texas law. Because Plaintiff has not met her burden to establish the validity of service upon Defendants in their individual capacities, such service was defective.
2. Return of Service
TEX. R. CIV. P. 107 governs the return of service. Rule 107 requires that "[w]hen the citation was served by registered or certified mail as authorized by Rule 106, the return by the officer or authorized person must also contain the return receipt with the addressee's signature." TEX. R. CIV. P. 107. A return receipt which does not bear the addressee's signature is fatally defective. Union Pacific Corp. v. Legg, 49 S.W. 3d 72, 79 (Tex.App.-Austin, 2001). The Court has reviewed the returns on file in this case. Although copies of the certified mail receipts are included with the returns, none of the receipts shows the signature of an addressee. (Resp. Appx. at 2, 4, 6.) Thus, service upon Defendants in their individual capacities was also defective for this reason. Accordingly, the attempted service of process upon Defendants in their individual capacities invalid and of no effect. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).