Cavaness v. 160th Judicial District Court et al

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DWIGHT HENRY CAVANESS, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:25-cv-3197-E-BN
§
160TH JUDICIAL DISTRICT
COURT, ET AL.,
§
§
§
Defendants. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Plaintiff Dwight Henry Cavaness filed a pro se complaint under the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692(g) (“FDCPA”) against Defendants 160th
Judicial District Court, Jenkins Court Receiver, Robert Jenkins, Darren Bender,
Capital One NA, and Discover Bank. See Dkt. No. 3.
United 	States 	District 	Judge 	Ada 	Brown 	referred 	this 	lawsuit 	to 	the
undersigned United States magistrate judge for pretrial management under 28
U.S.C. § 636(b) and a standing order of reference. See Dkt. No. 1.
Cavaness paid the statutory filing fee and, by doing so, undertook the
obligation to (1) properly serve each defendant with a summons and the complaint in
compliance with Federal Rule of Civil Procedure 4 or (2) obtain a waiver of service
from each defendant. See F ED. R. CIV. P. 4(j) (setting forth procedures for serving state
and local governments); F ED. R. CIV. P. 4(e) (setting forth procedures for serving
individuals); see also F ED. R. CIV. P. 4(d) (procedures for requesting that certain non-
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governmental defendants waive service); but see Moore v. Hosemann, 591 F.3d 741,
746-47 (5th Cir. 2009) (state official sued in official capacity not subject to “mandatory
waiver obligations” of Rule 4(d)).
On December 4, 2025, the Court issued an order informing Cavaness of his
obligation to effect service and that, under the Federal Rules of Civil Procedure, his
deadline to effect service and to file proof of service in accordance with Federal Rule
of Civil Procedure 4(l) or an executed waiver of service was February 18, 2026. See
Dkt. No. 5; F ED. R. CIV. P. 4(m)
Cavaness filed a document that he purported was proof of service. See Dkt. No.
6. The document states that Cavaness served the “following notices” to the 160th
Judicial District Court via certified mail; to Jenkins Court Receiver and Robert
Jenkins (collectively, “Jenkins”) via email; and to Capital One and Discover Bank via
email. Id. at 1. Copies of the “notices” themselves were not included.
The Clerk of the Court then issued summonses for all Defendants. See Dkt. No.
7. Cavaness has not filed proof that those summonses were executed or that service
was waived.
Jenkins, Bender, and the 160th Judicial District Court have moved to dismiss
the complaint. See Dkt. Nos. 17, 20, & 22. But Capital One and Discover Bank have
not yet appeared in this lawsuit.
For the reasons and to the extent set out below, the undersigned recommends
that the Court dismiss the claims against Capital One and Discovery Bank without
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prejudice under Federal Rule of Civil Procedure 4(m).
Legal Standards and Analysis
Federal Rule of Civil Procedure 4(m) authorizes a district court to, after
providing notice, dismiss a case sua sponte without prejudice for a plaintiff’s failure
to effectuate service on a defendant within 90 days of filing the complaint. See, e.g.,
Davis v. Bank of Am., NA, No. 3:12-cv-1036-M-BF, 2012 WL 4795591 (N.D. Tex. Oct.
9, 2012).
While “[a] pro se plaintiff is entitled to notice before a district court dismisses
an action, sua sponte, for failure to timely serve the defendants under Rule 4(m),”
Drgac v. Treon, No. H-07-4283, 2008 WL 4746984, at *1 (S.D. Tex. Oct. 27, 2008)
(citing Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996)), “[a] plaintiff’s
pro se status and ignorance of the law do not constitute cause for his failure to effect
service in compliance with the rules,” id. (citing Kersh v. Derozier, 851 F.2d 1509,
1512 (5th Cir. 1988)).
That is, “a litigant’s pro se status does not excuse failure to effect proper
service,” Zellmar v. Ricks, No. 6:17-cv-386, 2021 WL 805154, at *2 (E.D. Tex. Feb. 2,
2021) (citing Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th
Cir. 1990)), rec. adopted, 2021 WL 796133 (E.D. Tex. Mar. 2, 2021), as “[t]he party
effecting service has the burden of showing the validity of service,” Walker v. Forte,
No. 5:19-cv-158, 2021 WL 6930957, at *1 (E.D. Tex. Nov. 9, 2021) (citing Sys. Signs
Supplies, 903 F.2d at 1013; Matter of Arbitration Between Trans Chem. Ltd. v. China
Nat. Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 298 (S.D. Tex. 1997), op. adopted,
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161 F.3d 314 (5th Cir. 1998)), rec. adopted, 2022 WL 468031 (E.D. Tex. Feb. 15, 2022);
see also Savage v. Reliance Mortg. Corp., No. 6:17-cv-53-RP-JCM, 2018 WL 4702535,
at *3 (W.D. Tex. June 7, 2018) (“[T]he right of self-representation does not exempt a
party from compliance with the relevant rules of civil procedure.” (citing Kersh, 851
F.2d at 1512)), rec. adopted, 2018 WL 4688785 (W.D. Tex. Aug. 27, 2018).
And “Rule 4 requires only that the court notify a claimant that dismissal is
impending for lack of timely service.” Roberts v. U.S. Dep’t of Army, 275 F.3d 42, 2001
WL 1223674, at *1 (5th Cir. Sept. 26, 2001) (per curiam) (citing FED. R. C IV. P. 4(m)).
The court need not also guide a plaintiff “on how to effect proper service.” Id.
Here, the Court provided Cavaness notice and directed him to the provisions
of Rule 4. See Dkt. No. 5. Yet, Cavaness failed to effect proper service in the time
allowed by the relevant rules and set out in the Court’s order.
Rule 4(c) requires a plaintiff to serve a copy of the complaint and a summons
on defendants through a non-party. F ED. R. CIV. P. 4(c).
But Cavaness’s certificate of service suggests that he personally served the
Defendants, through either email or certified mail. See Dkt. No. 7.
However the documents were purportedly served, Cavaness did not file proof
of service by server’s affidavit as required under Rule 4(l). See F ED. R. CIV. P. 4(l); see
also F ED. R. C IV. P. 4(c)(2) (requiring service by person who is not a party).
And, as to the method of service, “[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
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(5th Cir. 2018) (per curiam); see 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))). Similarly, electronic service via email is not expressly permitted by
Rule 4. See F ED. R. CIV. P. 4(e); F ED. R. CIV. P.4(j).
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 F ED. R. CIV. P. 4(e)(1)); see F ED. R. CIV. P. 4(j)(2)(B) (providing for service of
state governments “in the manner prescribed by that state’s law for serving a
summons or like process on such a defendant”).
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
T EX . R. CIV. P. 106(a) (“Unless the citation or court order otherwise directs, the
citation must be served by: (1) delivering to the defendant, in person, a copy of the
citation, showing the delivery date, and of the petition; or (2) mailing to the defendant
by registered or certified mail, return receipt requested, a copy of the citation and of
the petition.”). Texas law only allows service through other methods, including email,
by court order upon a motion with a sworn statement showing that service was
attempted through the authorized methods but was unsuccessful. See T EX . R. CIV. P.
106(b); see also VeroBlue Farms USA, Inc. v. Wulf, No. 3:19-cv-764-X, 2020 WL
2132677, at *1-*2 (N.D. Tex. May 5, 2020) (permitting plaintiff to serve defendant via
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email after plaintiff moved for substitute service and showed that service through a
process server had been attempted and was unsuccessful).
And, as to persons authorized to serve process under Texas law, Texas Rule of
Civil Procedure 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 T EX. 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)).
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
T EX . 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 T EX . R. CIV. P. 107(c); Keeton v.
Carrasco, 53 S.W.3d 13, 19 (Tex. App. – San Antonio 2001, pet. denied)).
In sum, the documents filed by Cavaness – providing vague information
indicating that notices were sent to Defendants by Cavaness himself through certified
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mail and email – show that he failed to properly effect service under either the
Federal Rules of Civil Procedure or Texas law.
And, so, the Court should dismiss this lawsuit without prejudice under Rule
4(m).
But, affording some leniency, given his pro se status, the time to file objections
to this recommendation (explained below) provides Cavaness the opportunity to
show, in writing, both (1) good cause for the failure to timely and properly effect
service and (2) good cause for the Court to extend the time for service.
Recommendation
The Court should dismiss without prejudice Plaintiff Dwight Henry Cavaness’s
claims against Defendants Capital One NA and Discover Bank under Federal Rule of
Civil Procedure 4(m) unless Cavaness shows good cause not to do so.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); F ED. R. CIV.
P. 72(b). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
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factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATE: March 24, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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