Stealth Onsite Solutions, L.L.C. v E&E, L.L.C.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
STEALTH ONSITE SOLUTIONS, L.L.C.,
Plaintiff,
VS.
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CIVIL ACTION NO. 2:25-CV-00294
E&E, LLC,
Defendant.
MEMORANDUM AND RECOMMENDATION
On August 26, 2025, Plaintiff Stealth Onsite Solutions, L.L.C. (“Stealth”), filed a
complaint in state court against Defendant E & E, L.L.C. (“E&E”), alleging breach of a
maritime contract and related claims. (D.E. 1-3 at 2-8). E&E removed the case to this
Court on September 25, 2025, on the basis of federal question jurisdiction. (D.E. 1).
Currently pending is E&E’s motion to dismiss for insufficient service of process under
Federal Rule of Civil Procedure 12(b)(5). (D.E. 16). Stealth has not responded.
For the reasons discussed further below, it is recommended that E&E’s motion to
dismiss (D.E. 16) be GRANTED and Stealth’s claims be DISMISSED with prejudice.
I. BACKGROUND
a. Pleadings
In the complaint, Stealth alleges the following. (D.E. 1-3). E&E is the owner of the
M/V Double E, a commercial fishing vessel. (Id. at 3). Stealth is a provider of maritime
services to commercial fishing vessels. In October 2022, Stealth and E&E entered into an
United States District Court
Southern District of Texas
ENTERED
April 21, 2026
Nathan Ochsner, Clerk
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agreement whereby Stealth would pump out remaining fuel from the M/V Double E, which
was stranded on land following a hurricane. (Id.). The work was completed on October
31, 2022, and the M/V Double E subsequently underwent repairs and returned to operation.
(Id. at 3-4). Stealth charged E&E $36,750 to remove the fuel and demanded payment on
November 7, 2022. (Id. at 4). E&E has not paid. (Id.).
In its first cause of action, Stealth seeks to foreclose on a maritime lien in the amount
of $36,750. (Id. at 4-5). Second, Stealth alleges a breach of maritime contract arising from
E&E’s failure to pay for services provided. (Id. at 5). Third, Stealth alleges quantum
meruit arising from E&E’s failure to pay for services provided. (Id. at 6). Finally, Stealth
alleges promissory estoppel arising from E&E’s failure to pay for services provided. (Id.
at 6-7). Stealth seeks a declaration that it is entitled to a maritime lien against the M/V
Double E, actual damages in the amount of $36,750, attorney’s fees in the amount of
$8,750, interest, and costs. (Id. at 7).
A citation issued by the state court indicates that Stealth sought to serve the
complaint on E&E through a registered agent named Grant Erickson in Fort Myers, Florida.
(D.E. 1-2 at 1-2). The return of service shows that the registered agent left the complaint
with “Darby Doerzbacher, OFFICE MANAGER.” (D.E. 16-3 at 2). An affidavit
submitted in support of the present motion to dismiss1 indicates that Doerzbacher is an
1 “In considering a motion to dismiss for lack of service of process, a court may
properly look beyond the pleadings to determine whether service was sufficient.” Talley
v. Tsvetanov, Case No. 4:23-cv-180-SDJ-KPJ, 2024 U.S. Dist. LEXIS 148559, at *19 (E.D.
Tex. July 26, 2024).
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office manager for Erickson & Jensen Seafood Packers (“E&J”). (D.E. 16-2 at 1). In the
affidavit, Doerzbacher stated that she did not have authority to accept service for any
company and was not an employee of E&E. (Id. at 1-2).
In response to the complaint, E&E first argued that the state court did not have
jurisdiction because E&E had not been properly served with process. (Id. at 9). Further,
E&E argued that the state court lacked jurisdiction because federal courts have exclusive
jurisdiction over admiralty law. (Id.). E&E additionally challenged venue and answered.
(Id. at 9-10). E&E then removed the case to federal court.
b. Past Procedural History
On July 11, 2023, Stealth filed suit in this Court against E&J and the M/V Double E
in rem. (Case No. 2:23-cv-175, D.E. 1). On April 11, 2024, Stealth amended its complaint,
adding E&E as a defendant.2 (Id., D.E. 50). Stealth alleged that E&E could be served
through its managing member, Grant Erickson, at the same address as in the present case.
(Id. at 2). Stealth raised identical claims to those raised in this case. (Id. at 4-7). The
record reflects that service was directed to Erickson as alleged in the complaint, but it was
received by “Michelle Brian as Employee of the Registered Agent/Manager” on October
2, 2024. (Id., D.E. 52 at 1-2).
E&E filed a motion to dismiss under Rule 12(b)(5). (Id., D.E. 47). First, E&E
argued that Stealth was required to serve E&E by July 10, 2024, under the time limit for
2 The claims against E&J and the M/V Double E were previously dismissed. (See
D.E.s 29, 47, 59).
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service imposed by Federal Rule of Civil Procedure 4(m). (Id. at 2). E&E contended that
a summons was not issued until September 13, 2024, and service was not effected until
October 2, 2024. (Id. at 2-3). E&E asserted that Stealth never requested an extension of
the deadline to serve and had a record of delay warranting dismissal. (Id. at 4). Further,
E&E argued that Stealth failed to properly serve E&E’s agent for process because it
effected service on Michele Bryant, who was not E&E’s registered agent and was not an
employee of E&E or otherwise authorized to accept service. (Id. at 5-6). E&E attached an
affidavit from Bryant regarding the attempted service. (Id., D.E. 51-1 at 1-2). Stealth
responded to the motion. (Id., D.E. 56).
On December 12, 2024, Magistrate Judge Neurock issued a Memorandum and
Recommendation (“M&R”) recommending that the motion to dismiss be granted and the
case be dismissed without prejudice. (Id., D.E. 58 at 1). Judge Neurock concluded that
E&E had not been properly served because service was effected on Bryant, who did not
have authority to accept service for E&E. (Id. at 8-9). He further rejected Stealth’s
argument that E&E had waived its right to compliance with the service rules. (Id. at 10-
12). Judge Neurock also concluded that service was untimely, Stealth had not shown good
cause warranting an extension, and the Court should not exercise its discretion to grant an
extension anyway. (Id. at 12-15). The District Court adopted the recommendations in the
M&R over Stealth’s objections. (Id., D.E. 61). Stealth did not appeal.
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II. DISCUSSION
In the motion to dismiss, E&E argues that Stealth has again failed to properly
complete service because, despite again naming Erickson as the registered agent, service
was instead completed on Ann Darby Doerzbacher. (D.E. 16 at 4). E&E further argues
that, under Rule 4(m), Stealth had 90 days from the removal to complete service, but failed
to do so by the December 24, 2025, deadline. (Id. at 5). E&E argues that the case should
now be dismissed with prejudice given Stealth’s history of delay and the previous dismissal
for the same reasons. (Id. at 5-6).
Stealth has not responded.
Judge Neurock extensively outlined the applicable law in his M&R recommending
dismissal of Stealth’s prior federal case. See Stealth Onsite Sols., LLC v. M/V Double E,
No. 2:23-CV-00175, 2024 WL 5439692, at *4 (S.D. Tex. Dec. 12, 2024). In relevant part:
An individual may be served in a judicial district of the United States by
delivering a copy of the summons and the complaint to the individual
personally, leaving a copy of each of those documents at the individual's
dwelling or usual place of abode with someone of suitable age and discretion
who resides there, or delivering a copy of each to an agent authorized or by
law to receive service of process. Fed. R. Civ. P. 4(e)(2). Service may also
be accomplished by following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the district court
is located or where service is made. Fed. R. Civ. P. 4(e)(1).
A corporation or partnership, meanwhile, may be served in a judicial district
of the United States by serving it in the manner prescribed by Rule 4(e)(1)
for serving an individual, or
by delivering a copy of the summons and complaint to an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process and – if the agent is one authorized by statute and the
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statute so requires – by also mailing a copy of each to the
defendant.
Fed. R. Civ. P. 4(h)(1)(B). …
Because service of process on E&E was to occur in Florida, examination of
the requirements for service under that state's law is also appropriate. Such
service is governed by section 48.062 of the Florida Statutes. The statute sets
forth a rather involved “hierarchy of persons who may accept service on an
LLC's behalf.” Bakerofskie v. Aventura at the Bay, LLC, No. 8:24-cv-01854,
2024 WL 4235771, at *2 (M.D. Fla. Sept. 19, 2024). A plaintiff must first
attempt service on the LLC's registered agent. Fla. Stat. § 48.062(2). If
service on the registered agent cannot be accomplished after one good faith
attempt, then the plaintiff may serve process on “any manager of a manager-
managed domestic” LLC. Fla. Stat. § 48.062(3). If after due diligence service
was attempted but could not be completed upon one of the listed persons, the
plaintiff may provide alternative service on the Secretary of State as an agent
of the domestic LLC as permitted by section 48.161 or by order of the court
under section 48.102. Fla. Stat. § 48.062(4).
Id. Further, if a defendant is not served within 90 days after the complaint is filed, the court
must, either on motion or on its own after notice to the plaintiff, dismiss the action without
prejudice against that defendant or order that service be made within a specified time. Fed.
R. Civ. P. 4(m). If the plaintiff shows good cause for the failure, the court must extend the
time for service, but the court retains discretion to extend the time for service even absent
good cause. See Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013). “[O]nce
the validity of service of process has been contested, the plaintiff bears the burden of
establishing its validity.” Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346
(5th Cir. 1992).
Here, Stealth has failed to properly serve E&E for the same reason as in its prior
case. It is undisputed at this stage that service could properly be made on Grant Erickson.
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However, the return of service shows that service was instead completed on “Darby
Doerzbacher,” an office manager for E&J who was not employed by E&E or authorized to
accept service. (D.E. 16-2 at 1-2; D.E. 16-3 at 2). As in the previous case, Doerzbacher is
not an “officer, a managing or general agent, or any other agent authorized by appointment
or by law to receive service of process” as contemplated by Rule 4(h)(1)(B). Further,
Stealth did not comply with the Florida law for service because Doerzbacher was not
E&E’s registered agent, nor a manager of E&E. She was an office manager for E&J, a
separate company. (D.E. 16-2 at 1-2). Service on Doerzbacher was not sufficient to effect
service of process on E&E, and Stealth has offered no other evidence of service on E&E.
Accordingly, E&E has not yet been served in this case.
The deadline for Stealth to complete service was December 24, 2025, which was 90
days after the removal to federal court. (D.E. 1); Hearne v. Arctic Fox Logistics, Ltd., No.
4:23-cv-3458, 2025 U.S. Dist. LEXIS 68175, at *6 (S.D. Tex. Apr. 8, 2025). Because
Stealth has not responded to the motion to dismiss, it has presented no argument for an
extension to the deadline to complete service and has not shown good cause. Further, under
the circumstances—including the prior case history between the parties, Stealth’s failure
to respond to the motion to dismiss, and Stealth’s continued failure to properly complete
service—the undersigned does not believe the Court should exercise its discretion to extend
the time for service.
Finally, while the Court concluded in Stealth’s prior case that dismissal with
prejudice was inappropriate because the record did not show such gross inattention or
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inactivity as to warrant an extreme sanction, the circumstances have changed. See Stealth,
2024 WL 5439692 at *7 (citing Thrasher, 709 F.3d at 512-13). Stealth initially raised
these claims in July 2023. (Case No. 2:23-cv-00175, D.E. 1). The Court adopted Judge
Neurock’s M&R and dismissed Stealth’s claims for failure to properly serve on February
19, 2025, which provided Stealth with a full explanation of what was necessary to complete
service and why its previous attempt was insufficient. Stealth Onsite Sols., LLC v. E&E,
LLC, No. 2:23-CV-00175, 2025 WL 542539, at *1 (S.D. Tex. Feb. 19, 2025). Now, over
a year later, the record indicates that Stealth has made one additional attempt to serve E&E,
which was deficient for the same reason as its prior service attempt, and has failed to
respond to E&E’s motion to dismiss or otherwise show any intention to properly complete
service. What was previously merely a failure to comply with Rule 4(m)’s service
requirement has now become gross inattention and inactivity that warrant a dismissal with
prejudice.
III. RECOMMENDATION
Accordingly, it is recommended that E&E’s motion to dismiss (D.E. 16) be
GRANTED and Stealth’s claims be DISMISSED with prejudice.
Respectfully submitted on April 21, 2026.
____________________________
Julie K. Hampton
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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