Hernandez v. Global Prisoner Services, LLC D/b/a Texas Prisoner Transportation Services

Western District of Texas, txwd-5:2019-cv-00374

RESPONSE to [9] Order to Show Cause by Amanda Hernandez.

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WESTERN DISTRICT OF TEXAS UNITED STATES DISTRICT COURT AUSTIN DIVISION AMANDA HERNANDEZ, Individually§ § and On Behalf of All Others Similarly Situated, § § Plaintiff, § § v. § No. 5:19-cv-00374-FB § GLOBAL PRISONER SERVICES, LLC § d/b/a TEXAS PRISONER § TRANSPORTATION SERVICES, § § Defendant. § RESPONSE TO SHOW CAUSE ORDER The Court has ordered Plaintiff Amanda Hernandez (referred to as "Plaintiff" or "Hernandez") to "show good cause[] … why [this case] should not be dismissed pursuant to Rule 4(m)" for failure to serve the Defendant Global Prisoner Services, LLC d/b/a Texas Prisoner Transportation Services (referred to as "TPTS" or "Defendant") with process. (Order (Doc. 9) p. 2.) As explained below, TPTS was served with process, and this case should not be dismissed. Argument & Authorities The Federal Rules of Civil Procedure contain both a "state" and "federal" method for serving process. See, Fed. R. Civ. P. 4(h)(1); see also, Millan v. USAA General Indem. Co., 546 F.3d 321, 324 n.2 (5th Cir. 2008). Under Texas law, all domestic and foreign corporations, -1- like TPTS, must designate and maintain registered agents for service of process in Texas. Tex. Bus. Org. Code § 5.201(a), (b). If a company's registered agent cannot "with reasonable diligence" be found at the company's registered office, it can be constructively served through the Texas Secretary of State. Tex. Bus. Org. Code § 5.251; Tex. Civ. Prac. & Rem. Code § 17.026. In some situations, one attempt at service constitutes reasonable diligence. For example, in Ingram Indus., Inc. v. U.S. Bolt Mfg., Inc., 121 S.W.3d 31 (Tex. App.—Houston [1st Dist.] 2003, no pet.), a Texas appellate court held that The Texas Business Corporations Act places upon corporations the duty to maintain a registered agent and office and to notify the Secretary of State of any change in either. When the registered agent of a corporation cannot be found with reasonable diligence at the registered office, the Secretary of State acts as agent of such corporation for service of process. Thus, a default judgment obtained after an attempted substituted service will not stand absent a showing by the plaintiff that, before it resorted to substituted service, it first used reasonable diligence in seeking service on the registered agent of the corporation. The record must reflect strict compliance with the rules relating to the issuance, service, and return of citation when a default judgment is directly attacked. The record as a whole, not only the unexecuted citation, may be considered to determine whether the reasonable-diligence requirement is satisfied. Ingram Indus., Inc., 121 S.W.3d at 34 (internal citations and quotations omitted) (emphasis added). The Ingram court further held that a single attempt at service constituted reasonable diligence where a deputy constable attempted to serve process on the registered agent at the registered address then on file with the Texas Secretary of State only to find that the address "had been occupied by some other person or entity for the past 10 years." Id. at 34. That is precisely what happened in this case. Hernandez attempted to serve TPTS at the company's -2- registered address, eventually learning that it had been occupied by some other person or entity for several months. (Summons (Doc. 10) p. 2.) Under Texas law, Hernandez is not obligated to do anything else or to attempt service anywhere else: [The defendant] also argues that [the plaintiff] did not exercise reasonable diligence because [the plaintiff] and its counsel knew the address of [the defendant's] actual place of business, but did not serve the citation at that address. [The defendant] contends that the deputy who attempted to serve process on [it] should have asked a [the plaintiff] or its counsel whether either of them knew of another address at which [the defendant] could be served. There is no requirement under [Texas law] that [the plaintiff] also attempt to serve [the defendant at its] place of business, in addition to serving him at the address filed with the Secretary of State for [the defendant]. … Therefore, we hold that [the plaintiff] demonstrated reasonable diligence even though it did not serve the citation on [the defendant's] actual place of business. Ingram Indus., Inc., 121 S.W.3d at 35; see also, Houston's Wild West, Inc. v. Salinas, 690 S.W.2d 30, 32 (Tex. App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.) (holding that plaintiff is not required to serve president or vice president of corporation at actual place of business not listed with Secretary of State); TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706, 708 (Tex. App.—Fort Worth 1982, no writ) (stating that, in serving process on corporation, plaintiff is not required to attempt service on address found on invoice because such address did not create presumption that corporation was amenable to service there). Having established that Hernandez did what the law required of him vis-à-vis service on TPTS's registered agent, the rest of the analysis is straightforward. After making a diligent attempt to serve TPTS's registered agent, Hernandez may constructively serve the company -3- through the Texas Secretary of State. Interaction, Inc. v. State, 17 S.W.3d 775, 780 (Tex. App.—Austin 2000, pet. denied) (holding that the law simply "does not require [the plaintiff] to make any effort beyond a reasonably diligent attempt to serve [the defendant's] registered agent before substituting service on the Secretary of State[]"). Hernandez did so. (Certificate of Service (Doc. 8).) And even if the Secretary of State forwards the process to the wrong address because the corporation did not notify the Secretary of State of a change of address to its registered office, the service is still valid. Tankard-Smith, Inc. Gen. Contrac. v. Thursby, 663 S.W.3d 473, 475-76 (Tex. App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.); see also, Interaction, Inc., 17 S.W.3d at 780 (refusing to set aside default judgment because defendant "did not attempt to justify its failure to properly maintain a registered agent"). TPTS has, therefore, been properly served and is in default. As one Court put it: If a corporation fails to [notify the Secretary of State of any change of registered agent or address, it] cannot later complain that it did not have notice of the suit when the Secretary of State attempted to forward service of process to the address of the registered office on file. TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706, 709 (Tex. App.—Fort Worth 1982, no writ). In such a case, 'the failure of the method of service … [is] the result of [the corporation's] own failure to comply with the statutory requirements which were designed to assure it of notice of pending suits, not of any failure on the part of [plaintiff].' Id. Little v. D&D Helping Others, Inc., No. H-06-3295, 2008 U.S. Dist. LEXIS 77297, at *9 (S.D. Tex. Oct. 2, 2008). Conclusion Hernandez constructively served TPTS by serving the Texas Secretary of State. It does not matter that the process was returned as undeliverable because TPTS is legally -4- obligated to notify the Secretary of State of any change of address. Accordingly, the Court should not dismiss this case under Rule 4(m). Respectfully Submitted, MOORE & ASSOCIATES By: Melissa Moore State Bar No. 24013189 Federal Id. No. 25122 Curt Hesse State Bar No. 24065414 Federal Id. No. 968465 Lyric Centre 440 Louisiana Street, Suite 675 Houston, Texas 77002 Telephone: (713) 222-6775 Facsimile: (713) 222-6739 ATTORNEYS FOR PLAINTIFF -5- Of Counsel: Bridget Davidson State Bar No. 24096858 Federal Id. No. 3005005 MOORE & ASSOCIATES 440 Louisiana Street, Suite 675 Houston, Texas 77002 Telephone: (713) 222-6775 Facsimile: (713) 222-6739 -6-