Gay v. Mayflower Transit LLC et al

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JESSIE GAY, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:23-cv-1688-BN
§
MAYFLOWER TRANSIT, LLC, ET AL., 	§
§
Defendants. 	§
MEMORANDUM OPINION AND ORDER AUTHORIZING SUBSTITUTE
SERVICE AND SUA SPONTE EXTENDING DEADLINE
After the parties consented in writing, this case was ordered transferred to the
undersigned United States magistrate judge to conduct all further proceedings,
including entry of judgment, under 28 U.S.C. § 636(c). See Dkt. Nos. 11 & 13.
As to Plaintiff Jessie Gay’s attempts to serve Defendant Sub-Saharan Grill,
LLC d/b/a Bamba Auto Transport and Tow (“Sub-Saharan”), the Court most recently
elected not to dismiss Gay’s claims against Sub-Saharan under Federal Rule of Civil
Procedure 4(m) and instead granted Plaintiff’s request for an extension of time to file
a motion for substitute service as to Sub-Saharan. See Dkt. No. 30; see also Dkt. Nos.
20, 25, 27, & 29.
Through Plaintiff’s timely motion, Gay provides an affidavit documenting prior
failed attempts to personally serve Sub-Saharan’s registered agent at an address in
Houston, Texas, see Dkt. No. 31 at 6-7, and an affidavit documenting efforts to ensure
that this Houston address was the best address for that registered agent, see id. at 8-
9.
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Because the attempts to personally serve Sub-Saharan’s registered agent
failed, Plaintiff now requests that the Court approve substitute service on Sub-
Saharan by authorizing that it be served either by (1) serving the summons and
complaint on anyone more than sixteen years of age at the Houston, Texas address
or (2) securing the same to the front door or entry of that address. See generally Dkt.
No. 31.
Pursuant to Federal Rule of Civil Procedure 4(e)(1), a party may
be served by “following state law for serving a summons.” In this case,
Texas law applies and permits service by personal service or certified
mail. TEX. R. CIV. P. 106(a). But Rule 106 also authorizes a court to order
substituted methods of service. Only after service by one of the two
methods provided in Rule 106(a) fails, may a court, upon motion
supported by proper affidavit, authorize substitute service. See State
Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298, 298-99 (Tex. 1993).
Upon motion of the plaintiff with a sworn statement listing the
location a defendant can be found, and the facts of the attempted, yet
unsuccessful service, a court may authorize service “in any other
manner, 	including 	electronically 	by 	social 	media, 	email, 	or 	other
technology, that ... evidence shows will be reasonably effective to give
the defendant notice of suit.” TEX. R. CIV. P. 106(b)(2). “[S]ubstitute
service is not authorized ... without an affidavit which meets the
requirements of the rule demonstrating the necessity for other than
personal service.” Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).
Viahart, L.L.C. v. GangPeng, No. 21-40166, 2022 WL 445161, at *2 (5th Cir. Feb. 14,
2022); accord Am. Home Assurance Co. v. Zeus Plumbing, No. SA-23-CV-01424-XR,
2024 WL 4795986, at *3 & n.1 (W.D. Tex. Aug. 20, 2024); see also Energy Alchemy,
Inc. v. Nambo, No. 3:23-cv-815-K, 2024 WL 5397165, at *2 (N.D. Tex. May 20, 2024)
(“If 	service 	under 	Rule 	106(a) 	was 	attempted 	but 	unsuccessful, 	Rule 	106(b)
specifically provides that leaving a copy of the summons and complaint with a person
over the age of 16 at any location where the defendant can probably be found.” (citing
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TEX. R. C IV. P. 106(b)(1))).
Plaintiff’s motion and the attached affidavits comply with Rule 106.
The Court therefore GRANTS the motion for substitute service to the extent
that Plaintiff may serve Sub-Saharan by having a person authorized to serve process
under Texas law, see TEX. R. CIV. P 103, either (1) “leav[e] a copy of the [summons]
and of the [complaint] with anyone older than sixteen at the” Houston, Texas address
specified in the motion and affidavits, TEX. R. CIV. P. 106(b)(1), or (2) affix a copy of
the summons and of the complaint to the front door of the same Houston, Texas
address, another “manner … that the … evidence shows will be reasonably effective
to give [Sub-Saharan] notice of the suit,” TEX. R. CIV. P. 106(b)(2). See CT Cash LLC
v. Anns Boys Logistics Inc., No. 3:23-cv-788-S, 2023 WL 8816379, at *4 (N.D. Tex.
Dec. 19, 2023) (In general, a domestic or foreign corporation, a partnership, or other
unincorporated association “may be served ‘in the manner prescribed by Rule 4(e)(1)
for serving an individual,’ ‘following state law for serving a summons.’ FED . R. CIV. P.
4(h)(1)(A); (e)(1). ‘Service must be made on the corporation’s registered agent,
president, or any vice president,’ and a corporation’s agent may be served by the
methods found in Texas Rule of Civil Procedure 106(b). Paramount Credit, Inc. v.
Montgomery, 420 S.W.3d 226, 230 (Tex. App. – Houston [1st District] 2013, no pet.)
(citing TEX . BUS . O RGS . CODE §§ 5.201(b), 5.255(1)); see Westchester Fire Ins. Co. v.
Saab Site Contractors, L.P., No. EP-17-CV-00333-DCG, 2018 WL 7283632, at *1
(W.D. Tex. Oct. 30, 2018).”).
And the Court EXTENDS Plaintiff’s deadline to file proof of such service to
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April 10, 2026. See FED . R. CIV. P. 4(m).
SO ORDERED.
DATE: March 10, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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