Opinion
Civil No. SA-00-CA-0406 (HG).
July 14, 2000.
ORDER
On this day the Court considered the Request for Entry of Default [Docket No. 4] which the District Clerk has forwarded to the Court for review. The Request for Entry of Default [Docket No. 4] is not well-taken and the Court DENIES same.
Plaintiff has attempted to serve defendants under a pair of alleged Texas revised civil statute sections which plaintiff identifies as "the Texas `long-arm' statute Section 17.044(a)(3) Tex. Rev. Civ. Stat." and "the Texas `long-arm' statute Section 17.044(b) Tex. Rev. Civ. Stat." of course, there are no Texas revised civil statutes with these citations. Further, prior to being codified at TEX. CIV. PRAC. REM. CODE ANN. § 17.044 (Vernon 1997), the Texas "long-arm" statute was found at Vernon's Ann.Civ.St. art. 203 Ib, §§ 1, 3, 6.
Complaint, p. 2 ¶¶ 4 5, Docket No. 1.
See, TEX. CIV. PRAC. REM. CODE ANN. § 17.044 (Vernon 1997) [ Historical and Statutory Notes]
The Corporate Defendant
There are two prerequisites that must be pled in order to obtain proper service under TEX. CIV. PRAC. REM. CODE ANN. § 17.044(b). The first prerequisite requires that the pleading aver that the nonresident has engaged in business in this state. The second prerequisite requires that the pleading aver that either the nonresident does not maintain a regular place of business in this state, or that the nonresident does not maintain a designated agent for service of process. In its pleadings, the plaintiff has alleged that:
Upon information and belief, C D Bird Ranch is a California business which does not have a principal place of business in Texas. [Emphasis supplied.]
This allegation is insufficient to invoke Texas long-arm jurisdiction, and the Court cannot enter a default judgment on the basis of these allegations.
Copystatics, Inc. v. W. G. Bourn, 694 S.W.2d 613, 614 (Tex.App.-Texarkana 1985, writ ref d n.r.e.); Roberts Corporation v. Austin Company, 487 S.W.2d 165, 166 (Tex.Civ.App. — Austin 1972, writ ref d n.r.c.); Woodcock Cummings, Taylor French, Inc. v. Crosswell, 468 S.W.2d 864, 866 (Tex.Civ.App. — Houston (1st Dist.) 1971, no writ).
The Individual Defendant
The Court has surmised that plaintiff has attempted to invoke TEX. CIV. PRAC. REM. CODE ANN. 17.044(a)(3) in order for the Court to exercise long-arm jurisdiction against defendant, Ellen Norcutt. However, plaintiffs complaint is bereft of the necessary jurisdictional allegations. In order to exercise long-arm jurisdiction under Section 17.044(a)(3), the allegations must show that defendant became "a nonresident after a cause of action [arose] in this state but before the cause is matured by suit in a court of competent jurisdiction". Instead, plaintiff has merely alleged that:
Upon information and belief, Defendant Ellen Norcutt is a California citizen and resident.
Plaintiff has neither provided any indication that Ellen Norcutt became a nonresident after a cause of action arose in this state, nor has plaintiff provided any indication that Ellen Norcutt was ever a resident of this state. Because plaintiff has failed to allege jurisdictional facts sufficient to invoke Texas long-arm jurisdiction, this Court cannot enter a default judgment on that basis.
See, e.g., McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965), and, Whitney v. L L Realty Corp., 500 S.W.2d 94, 95 (Tex. 1973) [Whitney also holds that the Secretary of State's certificate that process had been forwarded is required as proof of service.]
IT IS THEREFORE ORDERED that the Request for Entry of Default [Docket No. 4] is, in all respects, DENIED.
IT IS FURTHER ORDERED that plaintiff shall have one-hundred and twenty (120) days from the date of this Order to correct the deficiencies in its complaint, and to attempt re-service on the defendants.
SO ORDERED on this the 14th day of July 2000.