Saldana v. Mission Drywall, Inc. et al

Western District of Texas, txwd-5:2018-cv-01060

RESPONSE to [9] Order to Show Cause by Michael Saldana.

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION § MICHAEL SALDAÑA, § Individually and on behalf § of all others similarly situated, § § Civil Action No. 5:18-cv-01060-FB Plaintiff, § § v. § JURY TRIAL DEMANDED § MISSION DRYWALL, INC., BOB MUTZ, § and DAVID ERNST, § COLLECTIVE ACTION § PURSUANT TO 29 U.S.C. § 216(b) Defendants. § § PLAINTIFF'S RESPONSE TO THIS COURT'S ORDER TO SHOW CAUSE TO THE HONORABLE FRED BIERY: Plaintiff Michael Saldaña, individually and on behalf of all opt-in plaintiffs and others similarly situated, hereby files this Response to this Court's Order to Show Cause, and will respectfully show as follows: 1. Plaintiff filed this lawsuit on October 9, 2018 and requested the issuance of summons that same day. See ECF Nos. 1–2. 2. On October 11, 2018, this Court issued Summons as to all Defendants and Plaintiff's counsel sent all three Summons to Allen Civil Process for service. See ECF Nos. 3–5. 3. On October 13, 2018 Mission Drywall, Inc., through its registered agent for service of process, Bob Mutz, was served, and a Return of Service was filed with the Court on October 14, 2018. See ECF No. 8. 4. Although Plaintiff had provided summons for all three Defendants, the process server only served Mission Drywall, Inc. Response to Order to Show Cause Page 1 5. Plaintiff's counsel failed to note that only one of the three Defendants had been served, and sincerely apologizes to this Court for the subsequent delay. 6. Since receiving this Court's Order to Show Cause on March 29, 2019, Plaintiff successfully served Defendant David Ernst. See ECF No. 10. 7. Plaintiff has attempted service of Bob Mutz in his individual capacity, but has not yet had success. See Affidavit from Allen Civil Process, hereby attached as Exhibit A. 8. Plaintiff intends to attempt service at least two more times before filing a Motion for Substituted Service with this Court. 9. In the event Plaintiff is not able to successfully serve Defendant Bob Mutz, individually, Plaintiff intends to file his Motion for Substituted Service on or before April 18, 2019. 10. Further, Plaintiff has requested and received an Entry of Default for Defendant Mission Drywall, Inc., and intends to move for Default Judgment on or before May 1, 2019. See ECF Nos. 11–12. Plaintiff again apologizes for the delay in perfecting service in this matter and respectfully prays that this Court not dismiss this matter for failure to prosecute. Response to Order to Show Cause Page 2 Date: April 5, 2019 Respectfully submitted, ANDERSON ALEXANDER, PLLC By: /s/ Clif Alexander Clif Alexander Texas Bar No. 24064805 Lauren E. Braddy Texas Bar No. 24071993 Alan Clifton Gordon Texas Bar No. 00793838 Carter T. Hastings Texas Bar No. 24101879 819 N. Upper Broadway Corpus Christi, Texas 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 Attorneys in Charge for Plaintiff and the Putative Class Members Response to Order to Show Cause Page 3 CERTIFICATE OF SERVICE I hereby certify that on April 5, 2019, I electronically filed the foregoing document with the clerk of the court for the U.S. District Court, Western District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a "Notice of Electronic Filing" to the attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means. /s/ Clif Alexander Clif Alexander Response to Order to Show Cause Page 4