Atala v. Ondeck Capital, Inc. et al Administratively Closed

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GEORGE ATALA,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-5708
ONDECK CAPITAL, INC., ODK
CAPITAL LLC, ENOVA
INTERNATIONAL INC.,
HEADWAY CAPITAL LLC,
DAVID FISHER, SEAN
RAHILLY, CATHLEEN PUGH,
CAPTAIN CAPITAL GROUP,
LLC, DOES 1–20
Defendants.
MEMORANDUM AND RECOMMENDATION
Pending before the Court is Defendant Captain Capital Group LLC’s
(“Captain”) 	Motion 	to 	Dismiss 	for 	Insufficient 	Process 	Pursuant 	to 	Rule
12(b)(4) (ECF No. 29).1 	Based on a review of the motion, arguments, and
relevant law, the Court RECOMMENDS Captain’s Motion to Dismiss for
Insufficient Process Pursuant to Rule 12(b)(4) (ECF No. 29) be DENIED.
1 This case was referred to the Undersigned for all purposes pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF No. 13).
United States District Court
Southern District of Texas
ENTERED
June 05, 2026
Nathan Ochsner, Clerk
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I. 	Background
On November 26, 2025, pro se Plaintiff George Atala (“Plaintiff”) filed a
101-page complaint against Captain, OnDeck Capital, Inc., ODK Capital, LLC,
Enova International, Inc., Headway Capital, LLC, David Fisher, Sean Rahilly,
and Cathleen Pugh (collectively, “Defendants”), raising various federal and
state law claims for alleged unlawful lending and collection practices. 	(See
ECF No. 1).
On 	December 	8, 	2025, 	Plaintiff 	filed 	an 	“Affirmation 	of 	Service”
reflecting that on December 2, 2025, process server Lekisha Collins served the
Summons and Complaint on “Captain Capital Group LLC c/o United States
Corporation Agents Inc[.]” at “7014 13th Avenue Suite 202 Brooklyn, NY
11228.” 	(ECF No. 12). 	The Affirmation of Service states that the documents
were delivered to “Gabriella F/Receptionist,” described as “a person of suitable
age and discretion,” who confirmed that the location was Captain’s place of
business. (Id.).
On December 16, 2025, Plaintiff filed a declaration regarding service of
process on Captain and “discovery of vacant business address,” as well as an
investigator affidavit relating to attempted service at “999 Central Avenue,
Suite 	309, 	Woodmere, 	New 	York 	11595,” 	which 	Plaintiff 	contends 	was
Captain’s listed principal office address. (ECF No. 19). Plaintiff’s investigator
represented that the location appeared vacant and there was no indication the
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space was currently occupied or used by Captain. (Id. at 4–5). The investigator
further noted, however, that as of the date service was attempted, the same
309 	Woodmere 	address 	was 	also 	“publicly 	listed 	on 	the 	website
www.captaincapitalgroup.com as the business address of Captain Capital
Group LLC.” (Id. at 5).
On December 23, 2025, Captain filed the instant Motion to Dismiss,
citing Federal Rule of Civil Procedure (“Rule”) 12(b)(4), and arguing that
process 	was 	insufficient 	because 	service 	was 	allegedly 	made 	upon 	an
unauthorized receptionist at the office of Captain’s registered agent—United
States Corporation Agents, Inc.—rather than upon an authorized officer or
agent. 	(ECF Nos. 29–31). 	In support, Captain submitted the declaration of
Nadav Partush, a Member of Captain, who states that Captain has never
maintained an office at 7014 13th Avenue, Suite 202, Brooklyn, New York, but
acknowledges 	that 	United 	States 	Corporation 	Agents, 	Inc. 	is 	Captain’s
registered agent located at that address. 	(ECF No. 30 ¶¶ 1, 7, 9). 	Partush
further states that “Gabriella F” was not authorized to accept service on behalf
of the registered agent and that Captain did not receive notice of the action
through the alleged service. 	(Id. ¶¶ 10–11). 	According to Partush, Captain
first learned of the lawsuit on December 12, 2025 through an unrelated PACER
search. (Id. ¶ 12).
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Captain additionally asserts that Plaintiff failed to properly investigate
Captain’s current business address because Captain had allegedly moved from
Suite 309 to Suite 303 at the same Woodmere building shortly before service
attempts were made. (Id. ¶¶ 14–16 (“Suite 309 . . . was the location of Captain’s
office until Captain recently moved to . . . Suite 303 . . . which is three doors
away 	from 	Captain’s 	previous 	location 	on 	the 	same 	floor 	of 	the 	same
building.”)). 	Captain therefore argues dismissal is warranted for insufficient
process. (ECF No. 31).
Plaintiff 	opposes 	the 	motion, 	arguing 	that 	service 	was 	properly
effectuated through Captain’s designated registered agent in accordance with
Rule 4 and New York law. (ECF No. 33). Plaintiff notes that Captain admits
United States Corporation Agents, Inc. is its registered agent, and that service
was made at the exact address listed in public New York records for receipt of
service. (Id.; see also ECF No. 19 at 7 (New York Department of State Records);
ECF No. 33-2 (Articles of Organization for Captain)). Plaintiff further argues
that any dispute regarding whether the receptionist was internally authorized
to accept service is a matter between Captain and its registered agent and does
not invalidate Plaintiff’s proper service. (ECF No. 33 at 5–6).
Plaintiff has also submitted a supplemental declaration from process
server Lekisha Collins and additional documentation purporting to show that
the registered agent’s office accepted service via “Gabriella F.” and on behalf of
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Captain. (See ECF No. 33-1). Plaintiff ultimately argues that Captain received
actual notice of the action, suffered no prejudice, and that even if a technical
defect existed, dismissal would be improper because any defect can be cured.
(ECF No. 33).
II. 	Legal Standard
A. Rule 12(b)(4) and 12(b)(5)
Rule 12(b)(4) permits dismissal for “insufficient process,” whereas Rule
12(b)(5) permits dismissal for “insufficient service of process.” 	FED. R. C IV. P.
12(b)(4)–(5). 	“Rule 12(b)(4) concerns the form of the process rather than the
manner or method of its service.” 	5B W RIGHT & M ILLER’S F EDERAL P RACTICE
& P ROCEDURE § 1353 (4th ed. 2026). 	Therefore, a Rule 12(b)(4) motion
challenges “noncompliance with the provisions of Rule 4(b) or any applicable
provision incorporated by Rule 4(b) that deals specifically with the content of
the summons.” 	Id. 	By contrast, a “Rule 12(b)(5) motion is the proper vehicle
for challenging the mode of delivery, the lack of delivery, or the timeliness of
delivery of the summons and complaint.” Id. “Other than those cases in which
it is confused with a motion under Rule 12(b)(5), a motion under Rule 12(b)(4)
is fairly rare.” Id. at n.7 (collecting cases).
“When service of process is challenged, the serving party bears the
burden of proving its validity or good cause for failure to effect timely service.”
Sys. Signs Supplies v. U.S. Dep’t of Just., Washington, D.C., 903 F.2d 1011,
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1013 (5th Cir. 1990) (citations omitted). “Plaintiffs normally meet the burden
of establishing that the defendant was properly served by producing the
process server’s return of service, which is generally accepted as prima facie
evidence of the manner in which service was effected.” 	Fyfee v. Bumbo Ltd.,
No. 09-cv-0301, 2009 WL 2996885, at *2 (S.D. Tex. Sep. 16, 2009) (citing
Nabulsi v. Nahyan, No. 06-cv-2683, 2009 WL 1658017, at *4 (S.D. Tex. June
12, 2009), aff’d sub nom. Nabulsi v. Bin Zayed Al Nahyan, 383 F. App’x 380
(5th Cir. 2010)). “Also, when determining the sufficiency of service of process,
the Court may consider affidavits and other evidence.” 	Marion Cnty. Econ.
Dev. Dist. v. Wellstone Apparel, LLC, No. 2:13-cv-44, 2013 WL 3328690, at *1
(S.D. Miss. July 2, 2013) (citing Sys. Signs Supplies, 903 F.2d at 1013).
B. Rule 4(e) and Rule 4(h)
Under Rule 4(h)(1), a corporation, partnership, or association may be
served within a judicial district of the United States either: (1) “in the manner
prescribed by Rule 4(e)(1) for serving an individual;” or (2) “by delivering a copy
of the summons and of the complaint to an officer, a managing or general agent,
or any other agent authorized by appointment or by law to receive service of
process.” F ED. R. C IV. P. 4(h)(1)(A)–(B).
Rule 4(e)(1), in turn, permits service by “following state law for serving
a summons in an action brought in courts of general jurisdiction in the state
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where the district court is located or where service is made.” 	FED. R. C IV. P.
4(e)(1).
Because service here was made in New York, New York law governs
whether service was sufficient under Rule 4(e)(1). 	See LONGi Green Energy
Tech. Co. v. Jinko Solar Co., No. 2:25-cv-00048, 2025 WL 1762962, at *2 (E.D.
Tex. Apr. 27, 2025), report and recommendation adopted, No. 2:25-cv-00048,
2025 WL 1762258 (E.D. Tex. June 25, 2025) (“[T]he plain language of the
Federal Rules of Civil Procedure permits service under the law of the place
where service takes place. . . . Turning to the instant matter: here, service was
made on Defendants in California. . . . The Federal Rules, therefore, authorize
service pursuant to California law in this case.”) (citations omitted). According
to New York law, service upon a corporation or limited liability company may
be made by delivering process to “to an officer, director, managing or general
agent, or cashier or assistant cashier or to any other agent authorized by
appointment or by law to receive service.” 	N.Y. C.P.L.R. § 311; see also id. at
§ 311-a (“Service of process on any domestic . . . limited liability company shall
be made by delivering a copy personally . . . to any other agent authorized by
appointment to receive process, or . . . to any other person designated by the
limited liability company to receive process, in the manner provided by law for
service of a summons as if such person was a defendant. 	Service of process
upon a limited liability company may also be made pursuant to article three of
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the limited liability company law.”); N.Y. LTD L IAB. C O. §§ 302, 303 (explaining
service of process on New York LLCs under article three of the limited liability
company law).
“‘Service requirements under Rule 4 are construed liberally when a party
contesting service of process has received actual notice.’” 	Marlin v. Sterling
McCall Toyota, No. 08-cv-912, 2008 WL 11391188, at *1 (S.D. Tex. June 26,
2008) (citations omitted). 	“The Fifth Circuit has construed provisions of Rule
4 broadly when the defendant received notice of the suit.” Id. (citing Nowell v.
Nowell, 384 F.2d 951 (5th Cir. 1967)); see also Karlsson v. Rabinowitz, 318 F.2d
666, 668 (4th Cir. 1963) (“[W]here actual notice of the commencement of the
action and the duty to defend has been received by the one served, the
provisions of [Rule 4] should be liberally construed to effectuate service and
uphold the jurisdiction of the court, thus insuring the opportunity for a trial on
the merits.”). Even where service is technically deficient, dismissal is generally
disfavored if there exists a reasonable prospect that service may be cured. See
Williams v. CVS, No. 1:10-cv-156, 2010 WL 11632868, at *3 (E.D. Tex. Sep. 15,
2010) (“When a district court finds insufficient process or insufficient service,
it may either dismiss the suit for failure to effect service or quash the service,
giving the plaintiff an opportunity to re-serve the defendant. . . . Generally,
dismissal is not appropriate unless ‘there is no reasonably conceivable means
of acquiring jurisdiction over the person of a defendant.’”) (citations omitted).
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III. 	Discussion
A. Plaintiff Has Met His Burden of Sufficient Service
Plaintiff has made a prima facie showing of sufficient service. 	As
mentioned, an LLC, like Captain, may be served within a judicial district of
the United States either “in the manner prescribed by Rule 4(e)(1)” or by
delivering process to an agent authorized to receive service. 	FED. R. C IV. P.
4(h)(1)(A)–(B). Rule 4(e)(1), in turn, permits service pursuant to the law of the
state where service is made, which in this case is New York. 	F ED. R. C IV. P.
4(e)(1). New York law regarding service therefore governs whether Plaintiff’s
method of service was sufficient. See LONGi Green Energy Tech. Co., 2025 WL
1762962, at *2. New York law permits service on an LLC through its registered
agent. 	See N.Y. L TD L IAB. C O. § 303; see also id. at § 302(a) (“In addition to
the designation of the secretary of state, each 	domestic limited liability
company or authorized foreign limited liability company may designate a
registered agent upon whom process against the limited liability company may
be served.”).
Here, Plaintiff has submitted a sworn Affirmation of Service stating that
on December 2, 2025, the summons and complaint were delivered to Captain
Capital Group LLC c/o United States Corporation Agents, Inc. at 7014 13th
Avenue, Suite 202, Brooklyn, New York 11228. 	(ECF No. 12). 	Captain does
not dispute that United States Corporation Agents, Inc. was its designated
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registered agent at that address. (See ECF No. 30 ¶ 9). Rather, Captain argues
that the individual who accepted the papers, identified as “Gabriella F.,” was
not personally authorized to receive service on behalf of the registered agent.
(Id. at ¶ 10).
The Court finds that Plaintiff has made a prima facie showing of valid
service. 	“In New York, a process server’s affidavit of service establishes a
prima facie case of the account of the method of service, and thus, in the
absence of contrary facts, we presume that [Defendant] was properly served
with the complaint.” Old Republic Ins. Co. V. P. Fin. Services of Am., Inc., 301
F.3d 54, 57 (2d Cir. 2002). 	“[N]o [evidentiary] hearing is required where the
defendant fails to swear to ‘specific facts to rebut the statements in the process
server’s affidavits.’” Id. Captain does not dispute that service occurred at the
exact address designated for receipt of service of process. 	Nor does Captain
dispute that the registered agent existed at that location. 	Instead, Captain
seeks to invalidate service based upon internal authorization procedures
within 	the 	registered 	agent’s 	office. 	However, 	service 	under 	these
circumstances is sufficient to create personal jurisdiction over Captain; service
should not be defeated based on assertions that the employee accepting process
lacked authority, and further considering that service was made at the proper
registered-agent location and that Captain received actual notice. 	See Direct
Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th
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Cir. 1988) (“The rules are to be applied in a manner that will best effectuate
their purpose of giving the defendant adequate notice. 	Thus, the service can
be made ‘upon a representative so integrated with the organization that he will
know what to do with the papers. 	Generally, service is sufficient when made
upon an individual who stands in such a position as to render it fair, reasonable
and just to imply the authority on his part to receive service.’”); id. at 688–89
(concluding service of process on receptionist in shared office of defendant
corporation 	and 	another 	corporation 	was 	sufficient 	to 	create 	personal
jurisdiction over defendant where she was the only employee in the office and
had more than minimal responsibility, and defendant had actual knowledge of
service of process). 	Additionally, Plaintiff has produced evidence that the
receptionist provided a “Service of Process Acceptance Form” confirming that
United States Corporation Agents, Inc. was the registered agent for Captain
and accepted service on Captain’s behalf. 	(ECF No. 33-1). 	At this stage, the
evidence is sufficient to establish at least prima facie compliance with Rule 4.
B. Defendant’s Actual Notice and Absence of Prejudice Weighs
Against Dismissal
Even assuming that service was technically deficient, dismissal would
not be warranted under the circumstances presented here. 	Indeed, one court
succinctly described the varying adherence to Rule 4(h) among courts and
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nonetheless found dismissal unwarranted despite the plaintiff’s failure to
serve the company’s registered agent. The Williams court explained:
In interpreting the corporate agent requirement of Rule 4(h)(1)(B),
some courts have found that service is adequate so long as the
person served is so situated within the corporation that he or she
will know what to do with the papers and so long as the managing
agent or agent for service actually receives the papers. 	Other
courts 	interpret 	the 	rule 	more 	strictly, 	holding 	that 	without
evidence that the “agent” was appointed to receive service, the
person served should at least be responsible for any substantial
aspect of the corporation’s operations, i.e., was a managing or
general agent. 	The Fifth Circuit follows the latter group, holding
that the letter of Rule 4(h) should be followed in serving process on
a corporation or business. The individual sought to be served must
have actually authorized another to accept service of process on
the would-be principal’s behalf; delivery to a purported agent does
not constitute service on the would-be principal, even if the “agent”
represents himself to be so authorized or accepts service.
Williams, 2010 WL 11632868, at *2 (citation modified) (collecting cases)
(noting plaintiff’s attempt to serve CVS by serving process on one of its store
managers did not satisfy the requirements of service of process).
Nonetheless, the court went on to reason that, “[w]hen a district court
finds insufficient process or insufficient service, it may either dismiss the suit
for failure to effect service or quash the service, giving the plaintiff an
opportunity to re-serve the defendant.” Id. at *3 (citations omitted). Further,
“dismissal is not appropriate unless ‘there is no reasonably conceivable means
of acquiring jurisdiction over the person of a defendant.’ [Instead,] [t]he court
should 	elect 	to 	quash 	service 	and 	preserve 	the 	action 	when 	‘there 	is 	a
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reasonable prospect that plaintiff ultimately will be able to serve defendant
properly.’” 	Id. (citations omitted). 	Considering the record here, the Court
subscribes to the same line of reasoning and finds that “there is a reasonable
prospect that [Plaintiff] will be able to serve [Captain] properly, and, thus,
dismissal may not be appropriate at this time.” Id.
After Plaintiff served Captain on December 2, 2025 (ECF No. 12),
Captain 	admittedly 	obtained 	actual 	notice 	of 	this 	action 	no 	later 	than
December 12, 2025 via PACER. (ECF No. 30 ¶ 12). Captain retained counsel
(id. at ¶ 13), appeared in the action about a week later (see ECF No. 27), and
timely filed the present motion (ECF No. 29). 	There is no indication that
Captain suffered prejudice resulting from the way service was attempted.
Moreover, Plaintiff attempted service in good faith using the registered-agent
address listed in official New York records (see ECF No. 19 at 7; ECF No. 33-
2). 	Plaintiff also attempted service at Captain’s principal office address
identified in state filings. 	The Court therefore finds that Plaintiff acted
reasonably in relying upon publicly available corporate records.
Given these records, the Court is unpersuaded by Captain’s contention
that Plaintiff was somehow obligated to independently discover Captain’s
alleged 	move 	from 	Suite 	309 	to 	Suite 	303 	within 	the 	same 	building,
particularly where Captain’s public filings had not been updated to reflect that
move. (See ECF No. 30-3 at 7).
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As such, the Court finds that Plaintiff has demonstrated good cause, and
thus, he should be granted an additional period of thirty (30) days to effect
proper service on Captain.
IV. 	Conclusion
Based on the foregoing, the Court declines to dismiss Captain from this
lawsuit at this juncture. 	The Court therefore RECOMMENDS Captain’s
Motion to Dismiss for Insufficient Process Pursuant to Rule 12(b)(4) (ECF No.
29) be DENIED. 	If this Memorandum and Recommendation is adopted, the
Court 	ORDERS that Plaintiff have at least 30 days from the date the
Memorandum and Recommendation is adopted to effect service on the proper
Captain entity. 	Once service is effectuated, or waived, Captain must inform
the Court within 30 days how it will proceed in the litigation in light of the
Enova Defendants’ pending Motion to Compel Arbitration and Stay Action, or
Alternatively, to Transfer Venue (ECF No. 38). For instance, whether Captain
will file a renewed dispositive motion, proceed with discovery, or join the
motion to compel arbitration.
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
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period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
SIGNED in Houston, Texas on June 5, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
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