2:25-cv-00294•Stealth Onsite Solutions, L.L.C. v E&E, L.L.C.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION STEALTH ONSITE SOLUTIONS, L.L.C., Plaintiff, VS. § § § § § § § § § CIVIL ACTION NO. 2:25-CV-00294 E&E, LLC, Defendant. MEMORANDUM AND RECOMMENDATION On August 26, 2025, Plaintiff Stealth Onsite Solutions, L.L.C. (“Stealth”), filed a complaint in state court against Defendant E & E, L.L.C. (“E&E”), alleging breach of a maritime contract and related claims. (D.E. 1-3 at 2-8). E&E removed the case to this Court on September 25, 2025, on the basis of federal question jurisdiction. (D.E. 1). Currently pending is E&E’s motion to dismiss for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). (D.E. 16). Stealth has not responded. For the reasons discussed further below, it is recommended that E&E’s motion to dismiss (D.E. 16) be GRANTED and Stealth’s claims be DISMISSED with prejudice. I. BACKGROUND a. Pleadings In the complaint, Stealth alleges the following. (D.E. 1-3). E&E is the owner of the M/V Double E, a commercial fishing vessel. (Id. at 3). Stealth is a provider of maritime services to commercial fishing vessels. In October 2022, Stealth and E&E entered into an United States District Court Southern District of Texas ENTERED April 21, 2026 Nathan Ochsner, Clerk Case 2:25-cv-00294 Document 18 Filed 04/21/26 in TXSD Page 1 of 9
2 agreement whereby Stealth would pump out remaining fuel from the M/V Double E, which was stranded on land following a hurricane. (Id.). The work was completed on October 31, 2022, and the M/V Double E subsequently underwent repairs and returned to operation. (Id. at 3-4). Stealth charged E&E $36,750 to remove the fuel and demanded payment on November 7, 2022. (Id. at 4). E&E has not paid. (Id.). In its first cause of action, Stealth seeks to foreclose on a maritime lien in the amount of $36,750. (Id. at 4-5). Second, Stealth alleges a breach of maritime contract arising from E&E’s failure to pay for services provided. (Id. at 5). Third, Stealth alleges quantum meruit arising from E&E’s failure to pay for services provided. (Id. at 6). Finally, Stealth alleges promissory estoppel arising from E&E’s failure to pay for services provided. (Id. at 6-7). Stealth seeks a declaration that it is entitled to a maritime lien against the M/V Double E, actual damages in the amount of $36,750, attorney’s fees in the amount of $8,750, interest, and costs. (Id. at 7). A citation issued by the state court indicates that Stealth sought to serve the complaint on E&E through a registered agent named Grant Erickson in Fort Myers, Florida. (D.E. 1-2 at 1-2). The return of service shows that the registered agent left the complaint with “Darby Doerzbacher, OFFICE MANAGER.” (D.E. 16-3 at 2). An affidavit submitted in support of the present motion to dismiss1 indicates that Doerzbacher is an 1 “In considering a motion to dismiss for lack of service of process, a court may properly look beyond the pleadings to determine whether service was sufficient.” Talley v. Tsvetanov, Case No. 4:23-cv-180-SDJ-KPJ, 2024 U.S. Dist. LEXIS 148559, at *19 (E.D. Tex. July 26, 2024). Case 2:25-cv-00294 Document 18 Filed 04/21/26 in TXSD Page 2 of 9
3 office manager for Erickson & Jensen Seafood Packers (“E&J”). (D.E. 16-2 at 1). In the affidavit, Doerzbacher stated that she did not have authority to accept service for any company and was not an employee of E&E. (Id. at 1-2). In response to the complaint, E&E first argued that the state court did not have jurisdiction because E&E had not been properly served with process. (Id. at 9). Further, E&E argued that the state court lacked jurisdiction because federal courts have exclusive jurisdiction over admiralty law. (Id.). E&E additionally challenged venue and answered. (Id. at 9-10). E&E then removed the case to federal court. b. Past Procedural History On July 11, 2023, Stealth filed suit in this Court against E&J and the M/V Double E in rem. (Case No. 2:23-cv-175, D.E. 1). On April 11, 2024, Stealth amended its complaint, adding E&E as a defendant.2 (Id., D.E. 50). Stealth alleged that E&E could be served through its managing member, Grant Erickson, at the same address as in the present case. (Id. at 2). Stealth raised identical claims to those raised in this case. (Id. at 4-7). The record reflects that service was directed to Erickson as alleged in the complaint, but it was received by “Michelle Brian as Employee of the Registered Agent/Manager” on October 2, 2024. (Id., D.E. 52 at 1-2). E&E filed a motion to dismiss under Rule 12(b)(5). (Id., D.E. 47). First, E&E argued that Stealth was required to serve E&E by July 10, 2024, under the time limit for 2 The claims against E&J and the M/V Double E were previously dismissed. (See D.E.s 29, 47, 59). Case 2:25-cv-00294 Document 18 Filed 04/21/26 in TXSD Page 3 of 9
4 service imposed by Federal Rule of Civil Procedure 4(m). (Id. at 2). E&E contended that a summons was not issued until September 13, 2024, and service was not effected until October 2, 2024. (Id. at 2-3). E&E asserted that Stealth never requested an extension of the deadline to serve and had a record of delay warranting dismissal. (Id. at 4). Further, E&E argued that Stealth failed to properly serve E&E’s agent for process because it effected service on Michele Bryant, who was not E&E’s registered agent and was not an employee of E&E or otherwise authorized to accept service. (Id. at 5-6). E&E attached an affidavit from Bryant regarding the attempted service. (Id., D.E. 51-1 at 1-2). Stealth responded to the motion. (Id., D.E. 56). On December 12, 2024, Magistrate Judge Neurock issued a Memorandum and Recommendation (“M&R”) recommending that the motion to dismiss be granted and the case be dismissed without prejudice. (Id., D.E. 58 at 1). Judge Neurock concluded that E&E had not been properly served because service was effected on Bryant, who did not have authority to accept service for E&E. (Id. at 8-9). He further rejected Stealth’s argument that E&E had waived its right to compliance with the service rules. (Id. at 10- 12). Judge Neurock also concluded that service was untimely, Stealth had not shown good cause warranting an extension, and the Court should not exercise its discretion to grant an extension anyway. (Id. at 12-15). The District Court adopted the recommendations in the M&R over Stealth’s objections. (Id., D.E. 61). Stealth did not appeal. Case 2:25-cv-00294 Document 18 Filed 04/21/26 in TXSD Page 4 of 9
5 II. DISCUSSION In the motion to dismiss, E&E argues that Stealth has again failed to properly complete service because, despite again naming Erickson as the registered agent, service was instead completed on Ann Darby Doerzbacher. (D.E. 16 at 4). E&E further argues that, under Rule 4(m), Stealth had 90 days from the removal to complete service, but failed to do so by the December 24, 2025, deadline. (Id. at 5). E&E argues that the case should now be dismissed with prejudice given Stealth’s history of delay and the previous dismissal for the same reasons. (Id. at 5-6). Stealth has not responded. Judge Neurock extensively outlined the applicable law in his M&R recommending dismissal of Stealth’s prior federal case. See Stealth Onsite Sols., LLC v. M/V Double E, No. 2:23-CV-00175, 2024 WL 5439692, at *4 (S.D. Tex. Dec. 12, 2024). In relevant part: An individual may be served in a judicial district of the United States by delivering a copy of the summons and the complaint to the individual personally, leaving a copy of each of those documents at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there, or delivering a copy of each to an agent authorized or by law to receive service of process. Fed. R. Civ. P. 4(e)(2). Service may also be accomplished 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. Fed. R. Civ. P. 4(e)(1). A corporation or partnership, meanwhile, may be served in a judicial district of the United States by serving it in the manner prescribed by Rule 4(e)(1) for serving an individual, or by delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and – if the agent is one authorized by statute and the Case 2:25-cv-00294 Document 18 Filed 04/21/26 in TXSD Page 5 of 9
6 statute so requires – by also mailing a copy of each to the defendant. Fed. R. Civ. P. 4(h)(1)(B). … Because service of process on E&E was to occur in Florida, examination of the requirements for service under that state's law is also appropriate. Such service is governed by section 48.062 of the Florida Statutes. The statute sets forth a rather involved “hierarchy of persons who may accept service on an LLC's behalf.” Bakerofskie v. Aventura at the Bay, LLC, No. 8:24-cv-01854, 2024 WL 4235771, at *2 (M.D. Fla. Sept. 19, 2024). A plaintiff must first attempt service on the LLC's registered agent. Fla. Stat. § 48.062(2). If service on the registered agent cannot be accomplished after one good faith attempt, then the plaintiff may serve process on “any manager of a manager- managed domestic” LLC. Fla. Stat. § 48.062(3). If after due diligence service was attempted but could not be completed upon one of the listed persons, the plaintiff may provide alternative service on the Secretary of State as an agent of the domestic LLC as permitted by section 48.161 or by order of the court under section 48.102. Fla. Stat. § 48.062(4). Id. Further, if a defendant is not served within 90 days after the complaint is filed, the court must, either on motion or on its own after notice to the plaintiff, dismiss the action without prejudice against that defendant or order that service be made within a specified time. Fed. R. Civ. P. 4(m). If the plaintiff shows good cause for the failure, the court must extend the time for service, but the court retains discretion to extend the time for service even absent good cause. See Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013). “[O]nce the validity of service of process has been contested, the plaintiff bears the burden of establishing its validity.” Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). Here, Stealth has failed to properly serve E&E for the same reason as in its prior case. It is undisputed at this stage that service could properly be made on Grant Erickson. Case 2:25-cv-00294 Document 18 Filed 04/21/26 in TXSD Page 6 of 9
7 However, the return of service shows that service was instead completed on “Darby Doerzbacher,” an office manager for E&J who was not employed by E&E or authorized to accept service. (D.E. 16-2 at 1-2; D.E. 16-3 at 2). As in the previous case, Doerzbacher is not an “officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process” as contemplated by Rule 4(h)(1)(B). Further, Stealth did not comply with the Florida law for service because Doerzbacher was not E&E’s registered agent, nor a manager of E&E. She was an office manager for E&J, a separate company. (D.E. 16-2 at 1-2). Service on Doerzbacher was not sufficient to effect service of process on E&E, and Stealth has offered no other evidence of service on E&E. Accordingly, E&E has not yet been served in this case. The deadline for Stealth to complete service was December 24, 2025, which was 90 days after the removal to federal court. (D.E. 1); Hearne v. Arctic Fox Logistics, Ltd., No. 4:23-cv-3458, 2025 U.S. Dist. LEXIS 68175, at *6 (S.D. Tex. Apr. 8, 2025). Because Stealth has not responded to the motion to dismiss, it has presented no argument for an extension to the deadline to complete service and has not shown good cause. Further, under the circumstances—including the prior case history between the parties, Stealth’s failure to respond to the motion to dismiss, and Stealth’s continued failure to properly complete service—the undersigned does not believe the Court should exercise its discretion to extend the time for service. Finally, while the Court concluded in Stealth’s prior case that dismissal with prejudice was inappropriate because the record did not show such gross inattention or Case 2:25-cv-00294 Document 18 Filed 04/21/26 in TXSD Page 7 of 9
8 inactivity as to warrant an extreme sanction, the circumstances have changed. See Stealth, 2024 WL 5439692 at *7 (citing Thrasher, 709 F.3d at 512-13). Stealth initially raised these claims in July 2023. (Case No. 2:23-cv-00175, D.E. 1). The Court adopted Judge Neurock’s M&R and dismissed Stealth’s claims for failure to properly serve on February 19, 2025, which provided Stealth with a full explanation of what was necessary to complete service and why its previous attempt was insufficient. Stealth Onsite Sols., LLC v. E&E, LLC, No. 2:23-CV-00175, 2025 WL 542539, at *1 (S.D. Tex. Feb. 19, 2025). Now, over a year later, the record indicates that Stealth has made one additional attempt to serve E&E, which was deficient for the same reason as its prior service attempt, and has failed to respond to E&E’s motion to dismiss or otherwise show any intention to properly complete service. What was previously merely a failure to comply with Rule 4(m)’s service requirement has now become gross inattention and inactivity that warrant a dismissal with prejudice. III. RECOMMENDATION Accordingly, it is recommended that E&E’s motion to dismiss (D.E. 16) be GRANTED and Stealth’s claims be DISMISSED with prejudice. Respectfully submitted on April 21, 2026. ____________________________ Julie K. Hampton United States Magistrate Judge Case 2:25-cv-00294 Document 18 Filed 04/21/26 in TXSD Page 8 of 9
9 NOTICE TO PARTIES The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court for the Southern District of Texas. A party’s failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge’s report and recommendation within FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Case 2:25-cv-00294 Document 18 Filed 04/21/26 in TXSD Page 9 of 9
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