Hernandez v. West Law Group, PLLC et al

Western District of Texas, txwd-5:2019-cv-00774

MOTION to Extend time to Serve Defendants by Daniel V Hernandez.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION Daniel V. Hernandez § § § Civil Action No. § v § 5:19-cv-774-FB § § § West Law Group and James A. West § § Motion for Extension of Time to Serve Defendants ____________________ To the Honorable United States District Judge Fred Biery: Background 1. This action was filed on July 2, 2019. 2. On the day suit was filed undersigned counsel sent a notice of suit and request for waiver of summons to Defendant. 3. Within 30 days counsel received a phone call from Nicole C. Hillman, counsel for Defendants. Settlement of the matter was discussed however no executed waiver was provided. 4. On August 22, 2019 Plaintiff requested the Clerk issue summons for both Defendants. [Docket #2] . 5. On August 27, 20 19 Plaintiff sent the summons out for service. 6. Pronto Process attempted to serve the summons at the address provided by Defendants to the Texas Comptroller of Public Accounts. It turns out these are "mail drops" and not physical addresses. See Exhibit A. 7. A search of James Wests in Harris County, Texas provided a several possible addresses. However, by this time storms and flooding in Houston prevented process servers from serving the summons. 8. More than one James West was served with summons. One Jim West averred that he was not the James West that is the subject of the suit. Another went on a profanity laced tirade against the process server. Emails from Pronto Process are attached as Exhibit A. 9. Shortly after this tirade Ms. Hillman again called my office. We continued to negotiate the resolution of this matter. As of this afternoon the case is not settled, the Defendants are unserved, and have not provided a waiver. Motion 10. Today is the deadline for Defendants to be served. Promising negotiations did not resolve the case. Severe weather and an uncooperative defendant have hinder ed the service of process. 11. Defendants have evaded service. Evasion alone is good cause to extend the time for service. See Fed. R. Civ. P. 4(m) and Adams v. Brinkerhoff Inspection, Inc., Civil Action No. SA-17-CV-103-XR (W.D. Tex. May. 24, 2017). 12. If the Court does not agree that Defendants' evasions are good cause, the Court has discretion to extend the time for service. "We agree with the majority of circuits that have found that the plain language of rule 4(m) broadens a district court's discretion by allowing it to extend the time for service even when a plaintiff fails to show good cause" Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996) 13. Plaintiff requests until October 23, 2019 to effectuate ser vice. Dated: October 2, 2019 Respectfully Submitted, /s/William M. Clanton William M. Clanton Texas Bar No. 24049436 Law Office of Bill Clanton, P.C. 926 Chulie Dr. San Antonio, T exas 78216 210 226 0800 210 338 8660 fax bill@clantonlawoffice.com Certificate of Service I certify that on this day a true and correct copy of the foregoing was served on Defendants' counsel, who has not yet entered an appearance, listed below: Nicole C. Hillman PO Box 2725 League City, Texas 77574 Via email: nchillmanlaw@gmail.com Signed October 2, 2019 /s/ William M. Clanton