Haywood v. Hilton Anatole

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MONIKAH A. HAYWOOD, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:25-cv-1608-N-BN
§
HILTON ANATOLE, 	§
§
Defendant. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Plaintiff Monikah A. Haywood filed a pro se complaint alleging wrongful-
employment-practice claims against Defendant Hilton Anatole (“Hilton”). See Dkt.
No. 3.
Senior United States District Judge David C. Godbey referred Haywood’s
lawsuit to the undersigned United States magistrate judge for pretrial management
under 28 U.S.C. § 636(b) and a standing order of reference.
And, considering that a pro se plaintiff paid the filing fee, the undersigned
entered an order on July 1, 2025 explaining that,
[b]y paying the statutory filing fee, Haywood 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 generally FED . R. CIV. P. 4
(setting forth procedures for serving various types of defendants and
regarding waiver of service).
And, as to each defendant, Haywood must file with the Court, as
applicable, a proof of service in accordance with Rule 4(l) or an executed
waiver of service.
The Court further advises Haywood that, if proper service is not
made and shown to the Court through a filed proof of service (or a waiver
of service obtained and filed with the Court) before the 90th day after
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the filing of this action (on June 23, 2025) that is not a Saturday,
Sunday, or legal holiday – which will be Monday, September 22, 2025
– this case is subject to dismissal without prejudice unless Haywood
shows both (1) good cause for this failure and (2) good cause for the Court
to extend the time for service for an appropriate, specified period. See
FED . R. C IV. P. 4(m); see also FED . R. CIV. P. 41(b) (providing for
dismissal, with or without prejudice, for failure to prosecute and obey
court orders).
Dkt. No. 4.
On September 23, an executed summons return was filed that indicates that,
on September 18, an individual other than Haywood who is identified as a certified
private process server served an attorney for Hilton. See Dkt. No. 6 (“I served
Attorney Drew Walston at the Jackson Lewis Firm … and got his signature above in
2 places at the time of service. This law firm is designated by law to accept service of
process on behalf of Hilton Anatole.”).
Applicable to service on a corporate defendant like Hilton,
Rule 4 provides a number of methods for serving a summons…. [T]hese
include, inter alia, “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,” Rule
4(h)(1)(B), or following state law, Rule 4(h)(1)(A) (citing Rule 4(e)(1)).
The applicable state law is the “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[.]” Rule 4(e)(1).
Fuller v. CIG Fin., LLC, No. 3:22-cv-1289-D, 2022 WL 4227518, at *2 (N.D. Tex. Sept.
13, 2022).
So, where Haywood has sued Hilton in Texas and attempted service on Hilton
in Texas, Texas law applies. Cf. id.
And “[t]hose managing, general, or authorized agents that must receive
[service of process] under Federal Rule 4(h)(1)(B) are delineated specifically in the
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Texas Business Organizations Code, and include the company’s registered agent,
executive officers, and ‘each person who is a governing person of [the] entity.’” Metro
Equip. & Rental Co., Inc. v. Tsurumi Mfg. Co., Ltd., PE:21-CV-30-DC-DF, 2021 WL
7500608, at *6 (W.D. Tex. Sept. 10, 2021) (quoting T EX. BUS . O RGS . CODE §§ 5.201,
5.255; citing Coleman v. Carrington Mortg. Servs., LLC, No. 4:19-CV-00231-ALM-
CAN, 2020 WL 4723174, at *3 (E.D. Tex. July 27, 2020)).
Nowhere under either definition, however, is “lawyer” or “counsel.” This
statutory structure has led district courts throughout the Fifth Circuit
to reject the implication that a defendant’s counsel is an authorized
agent for service on a corporate defendant. Coleman, 2020 WL 4723174,
at *3-*4 (expressly rejecting the contention that “Defendant’s counsel ...
is ... an officer, managing or general agent, or any other agent authorized
or registered to accept service on behalf of [Defendant]”); Martin v. Frail,
No. SA-09-CA-695-OG, 2010 WL 11506661, at *10 (W.D. Tex. Sept. 10,
2010) (denying that either Federal Rule 4(h) or Texas law for service of
process have been satisfied, considering how the plaintiff “provided no
evidence that [Defendant] appointed [its attorney] as an agent for
service,” or evidence that the lawyer “represents [Defendant] in this
case”).
Therefore, in the absence of even an allegation that an individual
is a corporate defendant’s registered agent, [a law firm], as counsel for
[the corporate defendant], cannot be served properly … under Federal
Rule 4(h)(1)(B). See, e.g., Coleman, 2020 WL 4723174, at *3-*4.
Id.
And, so, as the Court explained in an order entered on October 2,
Haywood’s claims are subject to dismissal without prejudice for failure
to properly effect service in the time allowed by law.
But the Court will allow Haywood until November 3, 2025 to file
a written response to this order to show why the claims against Hilton
should not be dismissed without prejudice and also show (1) good cause
for the failure to properly effectuate service and (2) good cause for the
Court to extend the time for service for an appropriate, specified period.
See FED . R. CIV. P. 4(m) (“[I]f the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate
period.”); see also Epley v. Luong, No. 23-40038, 2023 WL 8595674, at *2
(5th Cir. Dec. 12, 2023) (per curiam) (“A district court must dismiss a
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complaint without prejudice under Rule 4(m) if a defendant is not served
within 90 days after the complaint is filed, unless the plaintiff shows
good cause for the failure. A district court enjoys broad discretion in
determining whether to dismiss an action for ineffective service of
process. Good cause requires proof of at least excusable neglect – simple
inadvertence, mistake of counsel, or ignorance of the rules usually does
not suffice. The plaintiff must provide some showing of good faith and
some reasonable basis for noncompliance with the court’s deadline. The
plaintiff should also show due diligence in attempting to perfect service.”
(cleaned up)); cf. Woolery v. Perry, No. 3:21-cv-1728-D, 2022 WL 220973,
at *1 (N.D. Tex. Jan. 25, 2022) (“Doty made it seem that the court had
only one option – to dismiss the action – which clearly is not correct. The
court concludes in its discretion that Woolery should be given 28 days
after the granting of Doty’s motion to effect proper service on Doty.”
(cleaned up)).
Dkt. No. 7 at 3-4
Haywood failed to respond to the Court’s order. And it is now more than one
month past the deadline to do so. And, so, considering this record, the undersigned
recommends that the Court now dismiss this lawsuit without prejudice under Federal
Rules of Civil Procedure 4(m) and 41(b).
Discussion
Rule 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
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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. 6:17cv386, 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. 5:19cv158, 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,
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-00053-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. accepted, 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. CIV. P. 4(m)).
So the court need not guide a plaintiff “on how to effect proper service.” Id.
Here, the Court twice provided Haywood the required notice. See Dkt. Nos. 4
& 7. But Haywood has failed to offer proof of proper service in the time allowed by
the relevant rules and as extended by (and explained in) the Court’s October 2 order
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and has failed to respond to that order or request an extension of time to properly
serve the defendant. And, so, the Court should dismiss this lawsuit without prejudice
under Rule 4(m).
This failure and the record here further support dismissal under Rule 41(b),
which “authorizes the district court to dismiss an action sua sponte for failure to
prosecute or comply with [a Federal Rule of Civil Procedure or] a court order.” Griggs
v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (citing McCullough v.
Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam)); accord Nottingham v.
Warden, Bill Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016) (failure to comply with
a court order); Rosin v. Thaler, 450 F. App’x 383, 383-84 (5th Cir. 2011) (per curiam)
(failure to prosecute); see also Campbell v. Wilkinson, 988 F.3d 798, 800-01 (5th Cir.
2021) (holding that the text of Rule 41(b) does not extend to a failure to comply with
a court’s local rule insofar as that violation does not also qualify as a failure to
prosecute (discussing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188 (5th Cir. 1992)));
but see Copeland v. Nevarez, No. 25-10498, 2025 WL 3241563, at *1 (5th Cir. Nov. 20,
2025) (per curiam) (failure to comply with a court order warning that noncompliance
with the local rules “would risk dismissal of [the] case” “falls plainly within Rule
41(b)” (citation omitted))
This authority “flows from the court’s inherent power to control its docket and
prevent undue delays in the disposition of pending cases.” Boudwin v. Graystone Ins.
Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S.
626 (1962)); see also Lopez v. Ark. Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir.
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1978) (“Although [Rule 41(b)] is phrased in terms of dismissal on the motion of the
defendant, it is clear that the power is inherent in the court and may be exercised sua
sponte whenever necessary to ‘achieve the orderly and expeditious disposition of
cases.’” (quoting Link, 370 U.S. at 631)); Campbell, 988 F.3d at 800 (“It is well
established that Rule 41(b) permits dismissal not only on motion of the defendant,
but also on the court’s own motion.” (citing Morris v. Ocean Sys., Inc., 730 F.2d 248,
251 (5th Cir. 1984) (citing, in turn, Link, 370 U.S. at 631))).
And the Court’s authority under Rule 41(b) is not diluted by a party proceeding
pro se, as “[t]he right of self-representation does not exempt a party from compliance
with relevant rules of procedural and substantive law.” Wright v. LBA Hospitality,
754 F. App’x 298, 300 (5th Cir. 2019) (per curiam) (quoting Hulsey v. Texas, 929 F.2d
168, 171 (5th Cir. 1991) (quoting, in turn, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
Nov. 1981))).
A Rule 41(b) dismissal may be with or without prejudice. See Long v. Simmons,
77 F.3d 878, 879-80 (5th Cir. 1996).
Although “[l]esser sanctions such as fines or dismissal without prejudice
are usually appropriate before dismissing with prejudice, ... a Rule 41(b)
dismissal is appropriate where there is ‘a clear record of delay or
contumacious conduct by the plaintiff and when lesser sanctions would
not serve the best interests of justice.’”
Nottingham, 837 F.3d at 441 (quoting Bryson v. United States, 553 F.3d 402, 403 (5th
Cir. 2008) (per curiam) (in turn quoting Callip v. Harris Cnty. Child Welfare Dep’t,
757 F.2d 1513, 1521 (5th Cir. 1985))); see also Long, 77 F.3d at 880 (a dismissal with
prejudice is appropriate only if the failure to comply with the court order was the
result of purposeful delay or contumacious conduct and the imposition of lesser
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sanctions would be futile); Haynes v. Turner Bass & Assocs., No. 20-40787, 2022 WL
2383855, at *1 (5th Cir. July 1, 2022) (per curiam) (“A dismissal with prejudice is
improper unless the case history evidences both (1) a clear record of delay or
contumacious conduct by the plaintiff, and (2) that a lesser sanction would not better
serve the best interests of justice. A petitioner’s delay meriting a Rule 41(b) dismissal
with prejudice must be longer than just a few months; instead, the delay must be
characterized by significant periods of total inactivity. A party’s negligence does not
make conduct contumacious; rather, it is the stubborn resistance to authority which
justifies a dismissal with prejudice.” (cleaned up)); cf. Nottingham, 837 F.3d at 442
(noting that “lesser sanctions” may “‘include assessments of fines, costs, or damages
against the plaintiff, conditional dismissal, dismissal without prejudice, and explicit
warnings’” (quoting Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013))).
“When 	a 	dismissal 	is 	without 	prejudice 	but 	‘the 	applicable 	statute 	of
limitations probably bars future litigation,’” that dismissal operates as – i.e., it is
reviewed as – “a dismissal with prejudice.” Griggs, 905 F.3d at 844 (quoting
Nottingham, 837 F.3d at 441); see, e.g., Wright, 754 F. App’x at 300 (affirming
dismissal under Rule 41(b) – potentially effectively with prejudice – where “[t]he
district court had warned Wright of the consequences and ‘allowed [her] a second
chance at obtaining service’” but she “disregarded that clear and reasonable order”).
Haywood’s failure to comply with Rule 4(m) and the Court’s orders as to
Haywood’s service obligations [Dkt. Nos. 4 & 7] warrants dismissal under Rule 41(b)
without prejudice because Haywood has prevented this action from proceeding and
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has thus failed to prosecute this lawsuit.
And, so, because the undersigned concludes that lesser sanctions would be
futile, as the Court is not required to delay the disposition of this case until such time
as Haywood decides to obey the Court’s orders or otherwise properly effect service,
the Court should exercise its inherent power to prevent undue delays in the
disposition of pending cases and sua sponte dismiss this action without prejudice
under Rule 41(b).
It is not apparent based on the record here whether dismissal of this lawsuit
without prejudice at this stage would effectively be a dismissal with prejudice.
But, insofar as this dismissal may somehow prejudice Haywood, these findings,
conclusions, and recommendation afford notice, and the opportunity to file objections
(as further explained below) affords an opportunity to respond, to explain why this
case should not be dismissed for the reasons set out above. See Carver v. Atwood, 18
F.4th 494, 498 (5th Cir. 2021) (“The broad rule is that ‘a district court may dismiss a
claim on its own motion as long as the procedure employed is fair.’ More specifically,
‘fairness 	in 	this 	context 	requires 	both 	notice 	of 	the 	court’s 	intention 	and 	an
opportunity to respond’ before dismissing sua sponte with prejudice.” (citations
omitted)).
Recommendation
The Court should dismiss this action without prejudice under Federal Rules of
Civil Procedure 4(m) and 41(b).
A copy of these findings, conclusions, and recommendation shall be served on
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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); FED . 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
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).
DATED: December 11, 2025
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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