Fowler v. Lamar Consolidated Independent School District et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
C HELSA FOWLER, INDIVIDUALLY 	§
AND AS N EXT OF FRIEND OF H.D.F., 	§
A MINOR, 	§
Plaintiff, 	§
§
v. 	§ 	CIVIL A CTION N O. 4:25-cv-04370
§
L AMAR CONSOLIDATED I NDEPENDENT 	§
SCHOOL D ISTRICT, ET . AL., 	§
Defendants. 	§
MEMORANDUM AND RECOMMENDATION
Plaintiff originally filed this action in state court on August 19, 2025.1 	ECF
1-1 at 12. 	Defendant Lamar Consolidated Independent School District (the
“District”) was served in the state action on August 26, 2025, but Defendant Daniel
Gamboa was never served. 	Id. 	On September 15, 2025, the District removed the
case. ECF 1.
“A plaintiff who does not perfect service of process in state court therefore
has 90 days from the date of removal in which to complete this task.” Myart v. City
of San Antonio, No. SA-19-CV-00702-OLG, 2019 WL 7067126, at *9 (W.D. Tex.
Dec. 23, 2019), report and recommendation adopted, No. SA-19-CV-00702-OLG,
1 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act,
and Federal Rule of Civil Procedure 72. ECF 7.
United States District Court
Southern District of Texas
ENTERED
April 20, 2026
Nathan Ochsner, Clerk
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2
ECF 45 (S.D. Tex. Jan. 23, 2020); see also Goins v. City of Houston, No. H-20-1553,
2021 WL 2785344, at *2 (S.D. Tex. June 8, 2021) (explaining that under Rule 4(m),
“a plaintiff has 90 days from the date of removal to effect service”), report and
recommendation adopted, No. 4:20-CV-1553, 2021 WL 2779312 (S.D. Tex. July 2,
2021); FED. R. CIV. P. 4(m).
Here, the deadline to serve Defendant Gamboa was December 14, 2025. Over
four months later, Plaintiff still has not effected service. Therefore, Plaintiff’s claims
against Gamboa should be dismissed according to Rule 4(m). FED. R. CIV. P. 4(m).
Plaintiff’s pro se status does not excuse compliance with the rules regarding service.
See Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988). 	Pro se plaintiffs are
“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. CIV.A.
H-07-4283, 2008 WL 4746984, at *1 (S.D. Tex. Oct. 27, 2008) (citing Lindsey v.
United States R.R. Retirement Bd., 101 F.3d 444, 446 (5th Cir.1996)). 	The
Magistrate Judge’s recommendation of dismissal provides Plaintiff with the required
notice and Plaintiff has 14 days to file an objection and explain why the case should
not be dismissed (i.e., that Gamboa has been or will be served). 	See Anokwuru v.
City of Houston, 990 F.3d 956, 967 (5th Cir. 2021) (explaining that plaintiff that
filed objections to magistrate judge's recommendation undoubtedly had notice and
opportunity to respond before dismissal).
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For the reasons stated above, the Court RECOMMENDS that Plaintiff’s
claims against Defendant Gamboa be DISMISSED WITHOUT PREJUDICE for
failure to effect service.
The 	Clerk 	of 	the 	Court 	shall 	send 	copies 	of 	the 	memorandum 	and
recommendation to the respective parties, who will then have fourteen days to file
written objections, pursuant to 28 U.S.C. § 636(b)(1)(C). 	Failure to file written
objections within the time period provided will bar an aggrieved party from attacking
the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on
other grounds.
Christina A. Bryan
United States Magistrate Judge
Signed on April 20, 2026, at Houston, Texas.
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