Sharma v. City of Dallas et al

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANITA SHARMA, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:24-cv-1310-D-BN
§
CITY OF DALLAS, 	§
§
Defendant. 	§
MEMORANDUM OPINION AND ORDER
REGARDING SERVICE AND DEFAULT
Pro se Plaintiff Anita Sharma paid the fee to file this civil rights lawsuit on
May 29, 2024, the two-year anniversary of the date on which Sharma alleges that an
individual Dallas police officer used constitutionally excessive force against her. See
Dkt. No. 1. The Court dismissed Sharma’s claims against the City and the official
capacity claims against the officer, see Dkt. Nos. 4-12, and approximately one year
ago, Sharma filed a second amended complaint against just the officer, Defendant
Brandon W. Massey, see Dkt. No. 13.
Concerning Sharma’s responsibility to serve the operative complaint, Senior
Judge Sidney A. Fitzwater entered two orders under Federal Rules of Civil Procedure
4(m) and 6(b) [Dkt. Nos. 14 & 18] and, in the second order, set out this background:
On March 31, 2025 the court ordered plaintiff to comply with
these rules. On April 14, 2025 plaintiff responded to that order and
requested that the clerk of court issue a summons to Massey. The court
did not dismiss plaintiff’s action against Massey at that time. But it has
now been almost six months since the court granted plaintiff another
opportunity to effect service on Massey, and there is nothing in the
record to indicate that she has done so. Therefore, if plaintiff does not
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comply with this order by the response date specified above, plaintiff’s
action against Massey will be subject to dismissal without further
notice.
Dkt. No. 18 (requiring Sharma to “demonstrate good cause … for failing to effect
service on defendant Brandon W. Massey … by filing a written response with the
clerk of court no later than [October 17, 2025]” and cautioning Sharma that, “[i]f the
court does not receive the required response on or before the response date, or if the
response received by the court fails to demonstrate good cause, the court will dismiss
this action as to Massey, without prejudice, by authority of Rule 4(m)”).
Because Sharma failed to comply with the second order, the Court dismissed
the claims against Massery without prejudice on October 20, 2025. See Dkt. Nos. 19
& 20.
More than one month later, Sharma moved to reinstate her lawsuit; she then
amended that motion on December 5, 2025. See Dkt. Nos. 22 & 23.
Considering the amended motion under Federal Rule of Civil Procedure 60(b),
Judge Fitzwater Sharma’s motions on January 20, 2026, vacated the October 20
judgment, and referred this case to the undersigned United States magistrate judge
for pretrial management under 28 U.S.C. § 636(b). See Dk. No. 23.
The Court enters this order to outline the next steps that Sharma must take
to prosecute this lawsuit.
Through her most recent filings, Sharma appears to have offered some
evidence that could show that Massey was served by registered or certified mail on
May 9, 2025. See Dkt. No. 22-1 at 14.
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And, if Sharma believes that Massey was properly served on that date and has
since failed to respond to the complaint or otherwise defend this lawsuit, Sharma
must move for entry of default and a default judgment against Massey to avoid the
dismissal of this case. See N.D. TEX. L. CIV. R. 55.1 (“If a defendant has been in default
for 90 days, the presiding judge may require the plaintiff to move for entry of a default
and a default judgment. If the plaintiff fails to do so within the prescribed time, the
presiding judge will dismiss the action, without prejudice, as to that defendant.”).
But, before the Court may enter default or default judgment against a
defendant, the Court must have jurisdiction over that defendant. Such personal
jurisdiction must be obtained through proper service of process.
That is because service of process is “fundamental to any procedural imposition
on a named defendant” and is therefore “the official trigger for responsive action by
an individual or entity named defendant.” Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 350, 353 (1999).
So “[a] federal court is without personal jurisdiction over a defendant unless
the defendant has been served with process in accordance with Federal Rule of Civil
Procedure 4.” Naranjo v. Universal Sur. of Am., 679 F. Supp. 2d 787, 795 (S.D. Tex.
2010) (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987),
superseded by statute on other grounds, see FED . R. CIV. P. 4(k)(2)); accord Pennie v.
Obama, 255 F. Supp. 3d 648, 658 (N.D. Tex. 2017).
And, so, “[w]hen a plaintiff fails to properly serve process on a defendant, the
district court lacks personal jurisdiction over the defendant and any default judgment
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would be void.” Webster v. Kijakazi, No. 21-50455, 2021 WL 4468889, at *3 (5th Cir.
Sept. 29, 2021) (per curiam) (citing Rogers v. Hartford Life & Accident Ins. Co., 167
F.3d 933, 940 (5th Cir. 1999)); see also Rogers, 167 F.3d at 937 (“[A] defendant can
not make an appearance for purposes of Rule 55(b)(2) until after the plaintiff effects
service and the defendant becomes susceptible to default.”).
Turning to the evidence of Sharma’s service on Massey, “[s]ervice by mail is
not expressly permitted by Federal Rule of Civil Procedure 4.” Caceres-Mejia v.
Watson, 718 F. App’x 307, 309 (5th Cir. 2018) (per curiam); see also Gilliam v. Cnty.
of Tarrant, 94 F. App’x 230, 230 (5th Cir. 2004) (per curiam) (noting that “the use of
certified mail is not sufficient to constitute ‘delivering’ under Rule 4” (citing Peters v.
United States, 9 F.3d 344, 345 (5th Cir. 1993))).
Still, “an individual may be served 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.’” Caceres-Mejia, 718 F. App’x at 309
(quoting FED . R. CIV. P. 4(e)(1)); see also FED . R. CIV. P. 4(h)(1)(A).
And Texas law does contemplate the use of mail – more specifically, Texas law
provides for service by registered or certified mail, with return receipt requested. See
TEX. R. C IV. P. 106(a)(2) (“Unless the citation or an order of the court otherwise
directs, the citation shall be served by any person authorized by Rule 103 by mailing
to the defendant by registered or certified mail, return receipt requested, a true copy
of the citation with a copy of the petition attached thereto.”); see also Cross v. Grand
Prairie, No. 3:96-cv-446-P, 1998 WL 133143, at *6 (N.D. Tex. Mar. 17, 1998)
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(“Although Rule 4(e)(1) authorizes service pursuant to Texas law, absent prior
authorization by the trial court, the only methods of service permitted in Texas are
service in person or by registered mail.” (citing T EX. R. CIV. P. 106(a))).
But it still matters who serves the defendant by mail, as neither Rule 4 nor
Texas’s rules allow a party to serve a defendant. See FED . R. CIV. P. 4(c)(2) (“Any
person who is at least 18 years old and not a party may serve a summons and
complaint.”); TEX. R. CIV. P. 103.
As to persons authorized to serve process under Texas law, Rule 103 provides
“that a sheriff, a constable, or any person authorized by law or by written order of the
court not less than 18 years of age may serve any process, ‘[b]ut no person who is a
party to or interested in the outcome of the suit may serve any process in that suit.’”
Blanton-Bey v. Carrell, No. H-09-3697, 2010 WL 1337740, at *2 (S.D. Tex. Mar. 26,
2010) (quoting TEX. R. CIV. P. 103; emphasis provided by Blanton-Bey); see also Lucky
v. Haynes, No. 3:12-cv-2609-B, 2013 WL 3054032, at *2 (N.D. Tex. June 18, 2013)
(“Upon amendment of the relevant [Texas] rules, federal district courts in Texas
interpreting Texas Rule 103 have found that the clerk of the court or one of the three
authorized persons in Rule 103 can serve process by certified mail.” (citations
omitted)); accord Carter v. EZ Flo Int’l, No. 6:22-CV-00094-JDK, 2022 WL 17541407,
at *7 (E.D. Tex. Sept. 2, 2022), rec. adopted, 2022 WL 17091857 (E.D. Tex. Nov. 21,
2022).
Texas law also requires that particular information be included in the return
of service, such as the address served and the date of service or attempted service, see
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TEX. R. CIV. P. 107(b), and “when certified mail has been selected as the method of
service, 	Texas 	law 	further 	requires 	that 	the 	return 	receipt 	be 	signed 	by 	the
addressee,” Lucky, 2013 WL 3054032, at *3 (citing TEX. R. CIV. P. 107(c); Keeton v.
Carrasco, 53 S.W.3d 13, 19 (Tex. App. – San Antonio 2001, pet. denied)); accord
Carter, 2022 WL 17541407, at *7.
And where a plaintiff is the person who sends the registered or certified mail
to a defendant, such service is invalid. See Hill v. N. Tex. State Hosp., No. 7:09-cv-
158-O, 2010 WL 342227, at *1-*2 (N.D. Tex. Jan. 26, 2010) (Because “[i]t conclusively
appears from the file materials that Plaintiff alone caused the summonses to be
mailed by certified mail to the defendants, … plaintiff has failed to comply with either
of the Rule 4 prescribed means of affecting service of process in this case.” And, so,
the Court should “deny Plaintiff’s Motion for Default.” (cleaned up)); Carter, 2022 WL
17541407, at *7 (“For Plaintiff’s certified mail service of process to be valid, a copy of
the summons and complaint must have been sent by an authorized uninterested
party and served on the Defendant. See TEX. R. C IV. P. 103, 106(a)(2). However, in
this case, there is no evidence that an authorized uninterested party mailed a copy of
the complaint with the summons. Rather, the unexecuted summons indicates that
Plaintiff attempted to serve EZ Flo himself via certified mail.”); Williams v. Midland
Credit Mgmt., Inc., No. 4:24-cv-110-P, 2024 WL 1540265, at *1 (N.D. Tex. Mar. 18,
2024) (“Plaintiff, in his response, admits that the service by certified mail on
Defendant was sent directly by the Plaintiff to the Defendant…. Consequently, the
Court finds and concludes that Plaintiff has failed to establish proper service of
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process on Defendant that complies with the Federal and Texas Rules of Civil
Procedure.” (cleaned up)), rec. adopted, 2024 WL 1543762 (N.D. Tex. Apr. 9, 2024);
see also Mori Seiki USA, Inc. v. McIntyre, No. 3:06-cv-2344-B, 2007 WL 2984658, at
*1 (N.D. Tex. Oct. 12, 2007) (“Because it is unclear who sent Taylor the certified mail,
the Court … finds that the [motion] should be denied without prejudice pending the
filing of a motion complying with the Rule 4 requirements for service of process.”
(cleaned up)).
Sharma’s evidence as to service on Massey by registered or certified mail fails
to provide conclusive evidence as to who sent the mail to Massey where the response
from the United States Postal Service begins: “Dear Anita Sherman, The following is
in response to your request for proof of delivery on your item with [the following]
tracking number.” Dkt. No. 22-1 at 14.
And, so, Sharma is ORDERED to file a response to this order by February 25,
2026. If Sharma elects to respond by moving for entry of default and a default
judgment against Massey, that motion must be supported by evidence (i.e., an
affidavit or declaration) that reflects that Massey was properly served – including by
whom. Absent such evidence, the Court cannot find that Massey is in default. And, if
Sharma believes that the attempt to serve Massey was not proper, she must move for
an extension of time to properly effect service on him by demonstrating good cause
under Rule 4(m).
SO ORDERED.
_________________________________________
DATED: January 23, 2026 	DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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