Moss v. SLSCO, Ltd. et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
MAKAYLA MOSS,
Plaintiff.
V.
SLSCO, LTD. et al.,
Defendants.
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CIVIL ACTION NO. 3:26-cv-00050
MEMORANDUM AND RECOMMENDATION
This employment discrimination case has been referred to me for all pretrial
purposes. See Dkt. 26. There are three motions pending before me: (1) Defendants
SLSCO, Ltd. (“SLS”) and ModCorr LLC’s motion to dismiss, in which ModCorr
seeks dismissal pursuant to Rule 12(b)(6) for failure to state a claim, and SLS seeks
dismissal pursuant to Rule 12(b)(5) for insufficient service of process (Dkt. 21);
(2) Plaintiff Makayla Moss’s motion for an extension of time to effect service
(Dkt. 22) on SLS; and (3) Moss’s motion to reissue summons for SLS (Dkt. 24).
Having 	reviewed 	the 	briefing, 	the 	record, 	and 	the 	applicable 	law, 	I
recommend that Moss’s motion for an extension of time to serve SLS be granted,
that her motion to reissue summons be denied as moot, and that the United States
Marshals be directed to serve SLS in accordance with the summons issued on
December 12, 2025. See Dkt. 9. I further recommend that the motion to dismiss as
to SLS be denied and the motion to dismiss as to ModCorr be granted.
BACKGROUND
This is an employment discrimination action under Title VII of the Civil
Rights Act of 1964 and the Americans with Disabilities Act (“ADA”). Moss,
representing herself, filed her original complaint in the United States District
Court for the Southern District of Texas, Houston Division, on September 12, 2025,
naming SLS as the sole defendant. See Dkt. 1.
United States District Court
Southern District of Texas
ENTERED
March 24, 2026
Nathan Ochsner, Clerk
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When she filed her complaint, Moss also requested permission to proceed in
forma pauperis (“IFP”), without prepaying fees or costs. See Application to Proceed
in District Court Without Prepaying Fees or Costs, Moss v. SLSCO, Ltd., No. 4:25-
mc-01728 (S.D. Tex. Sep. 12, 2025), ECF No. 1. On September 18, 2025, Judge
Alfred H. Bennett granted Moss’s IFP application and ordered the clerk “to file the
complaint and issue a summons” and for the Marshals “to serve the summons with
a copy of the complaint and this order on the defendant(s).” Order to Proceed
Without Prepaying Fees or Costs, Moss v. SLSCO, Ltd., No. 4:25-mc-01728 (S.D.
Tex. Sep. 12, 2025), ECF No. 2. That same day, the Clerk filed Moss’s complaint
and instituted Case No. 4:25-cv-04494.
On November 6, 2025, Moss filed her first amended complaint naming SLS
and ModCorr as defendants. See Dkt. 6. In that pleading, Moss identified the
service address for SLS as CT Corporation System, 1999 Bryan St Ste 900, Dallas,
Texas 75201. See id. at 1. The docket sheet shows that summonses were also issued
for both SLS and ModCorr and delivered to the Marshals on November 6, 2025.
On December 3, 2025, Magistrate Dena Hanovice Palermo issued an Order
of Non-Compliance and Resetting Rule 16 Conference. See Dkt. 7. In that order,
Magistrate Palermo observed that “[p]roof of timely service of the Defendant(s)
has not been filed with the Court.” Id. at 1. Magistrate Palermo warned Moss: “If
proof of service is not filed by January 10, 2026, this case may be dismissed. See
Fed. R. Civ. P. 4(m) (requiring defendant(s) to be served within 90 days after the
filing of the complaint).” Id.
On December 12, 2025—nine days after Magistrate Palermo issued her
order—Moss filed her Second Amended Complaint. See Dkt. 8. That same day, the
Clerk issued summons for SLS and ModCorr. See Dkt. 9. The summons shows that
Moss requested that SLS be served c/o InCorp Services, Inc., 815 Brazos Street,
Suite 500, Austin, Texas 78701. See id. at 3–4.
On January 29, 2026, SLS and ModCorr filed a motion to transfer venue to
the Galveston Division. See Dkt. 12. Judge David Hittner granted the motion on
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February 17, 2026, and the case was transferred to the Galveston Division and
given the instant case number 3:26-cv-00050. See Dkt. 18.
On March 3, 2026, Defendants filed their motion to dismiss. Defendants
argue that: (1) Moss’s “claims against SLS should be dismissed under Rule 12(b)(5)
for insufficient service, as the 90-day period under Rule 4(m) has expired without
service” on SLS; and (2) Moss’s “claims against ModCorr should be dismissed
under Rule 12(b)(6) for failure to exhaust administrative remedies, as ModCorr
was not named in her EEOC charge.” Dkt. 21 at 2. In response, Moss has moved
for an extension of time to effect service on SLS and to reissue summons for SLS.
See Dkts. 22, 24. I begin by addressing Moss’s purported failure to serve SLS.
SLS’S RULE 12(b)(5) MOTION TO DISMISS
SLS seeks dismissal of Moss’s claims against it pursuant to Rule 12(b)(5) for
insufficient service of process. It is undisputed that SLS has not yet been properly
served with process in this matter.
A. 	L EGAL S TANDARD
1. 	Rule 12(b)(5)
“A defendant has no obligation to appear in court or defend an action before
it is formally served with process directing it to appear before that forum.”
Thompson v. Deutsche Bank Nat’l Tr. Co., 775 F.3d 298, 303 (5th Cir. 2014). “It is
axiomatic that in order for there to be in personam jurisdiction there must be valid
service of process.” Attwell v. LaSalle Nat’l Bank, 607 F.2d 1157, 1159 (5th Cir.
1979). “A court which lacks personal jurisdiction over a defendant cannot enter a
valid judgment against that defendant.” Tr. Co. of La. v. N.N.P. Inc., 104 F.3d 1478,
1486 (5th Cir. 1997) (quotation omitted). If a plaintiff fails to properly effectuate
service, the defendant may seek to dismiss the plaintiff’s complaint under Rule
12(b)(5).
Under Rule 4(c)(1), a summons must be served with a copy of the complaint,
and the plaintiff is responsible for having the summons and complaint served on
the defendant within the time allowed by Rule 4(m). “A motion to dismiss pursuant
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to Rule 12(b)(5) turns on the legal sufficiency of the service of process.” Holly v.
Metro. Transit Auth., 213 F. App’x 343, 344 (5th Cir. 2007). “[T]he plaintiff bears
the burden of establishing [the] validity” of the service of process. Carimi v. Royal
Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). “The district court
enjoys a broad discretion in determining whether to dismiss an action for
ineffective service of process.” George v. U.S. Dep’t of Lab., Occupational Safety &
Health Admin., 788 F.2d 1115, 1116 (5th Cir. 1986).
2. 	Service of Process in Cases Involving IFP Plaintiffs
“Special rules govern the procedure for service of process in cases involving
in forma pauperis plaintiffs like [Moss].” Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d
444, 446 (5th Cir. 1996). Under 28 U.S.C. § 1915(d), “[t]he officers of the court shall
issue and serve all process, and perform all duties in [IFP] cases.” Rule 4(c)(3) goes
hand-in-hand with § 1915(c), providing that “the court may order that service be
made by a United States marshal or deputy marshal or by a person specially
appointed by the court. The court must so order if the plaintiff is authorized to
proceed in forma pauperis under 28 U.S.C. § 1915.”
Once an IFP plaintiff has taken reasonable steps to identify the defendant(s),
Rule 4(c)(3) and § 1915(c) “stand for the proposition that the court is obligated to
issue plaintiff’s process to a United States Marshal who must in turn effectuate
service upon the defendants.” Lindsey, 101 F.3d at 446 (cleaned up).
As the Fifth Circuit has explained:
If proper service is not made within 120 days of filing the
complaint, the action is subject to sua sponte dismissal, without
prejudice, by the district court after notice to the plaintiff. Fed. R. Civ.
P. 4(m). However, dismissal is improper “if the plaintiff shows good
cause for the failure” to properly effect service. Id. We have held that
to establish good cause the plaintiff must demonstrate at least as
much as would be required to show excusable neglect, as to which
simple inadvertence or mistake of counsel or ignorance of the rules
usually do not suffice. Upon a showing of good cause, the district court
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“shall extend the time for service for an appropriate period.” Fed. R.
Civ. P. 4(m).1
Id. (cleaned up).
B. 	A NALYSIS
Moss filed her complaint on September 18, 2025. See Dkt. 1. Under Rule
4(m), Moss was required to serve SLS by Wednesday, December 17, 2025. On
December 3, 2025—two weeks before the service deadline—Magistrate Palermo
warned Moss that her case would be dismissed if proof of service was not filed by
January 10, 2026. See Dkt. 7 at 1. A mere nine days later, Moss filed her Second
Amended Complaint, and summonses for both SLS and ModCorr were delivered
to the Marshals. See Dkts. 8, 9. The summons shows that on December 12, 2025—
five days before the service deadline—Moss requested service on SLS via InCorp
Services, Inc., 815 Brazos Street, Suite 500, Austin, Texas 78701. See Dkt. 9 at 3–
6. Coincidentally, this is the same address to which Moss requests that summons
be reissued, and the address at which SLS would be served if Moss is granted an
extension of time. See Dkt. 22 at 1; Dkt. 24 at 1.
SLS does not dispute that InCorp Services, Inc. is its registered agent for
service of process. Nor does SLS dispute that it can be served with process if a
summons is sent to InCorp at 815 Brazos Street, Suite 500, Austin, Texas 78701. It
is doubtful that SLS could dispute this information, as InCorp is listed as SLS’s
registered agent on the Texas Comptroller’s website:
1 Lindsey quoted an earlier version of Rule 4(m). The current version states that “the court
must extend the time for service for an appropriate period” if the plaintiff shows good
cause. Fed. R. Civ. P. 4(m) (emphasis added).
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See Franchise Tax Account Status, https://comptroller.texas.gov/taxes/franchise/
account-status/search/32035045593 (Mar. 18, 2026 at 11:21 a.m.). Rather, SLS
wants this court to punish a pro se litigant who, five days before the deadline to
serve SLS, correctly identified SLS’s registered agent for service of process and
requested that the Marshals serve SLS via that agent.
This court will do no such thing. In the Galveston Division, we like to try
cases on their merits, and we do not punish pro se litigants for a service failure that
is attributable to the Marshals and not to the plaintiff.
“By virtue of Rule 4(c)(3) and 28 U.S.C. § 1915(d), a party proceeding in
forma pauperis, as is the case here, is entitled to rely on the United States Marshal
and officers of the court for service of the summons and complaint.” Counce v.
Wolting, No. 13-3199, 2017 WL 661583, at *3 (D. Kan. Feb. 17, 2017). “If the
necessary information has been provided, the plaintiff will not be penalized with
dismissal of the case when service fails because the Marshal or clerk’s office does
not perform the duties specified by rule and statute.” Id. SLS does not dispute that
Moss provided the correct service information for SLS on December 12, 2025, five
days before the service deadline. Whatever the reason for the delay in serving SLS,
it is not attributable to Moss. Accordingly, Defendants’ motion to dismiss (Dkt. 21)
should be denied as to SLS.
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Relatedly, Moss’s motion for an extension of time to effect service (Dkt. 22)
should be granted. Moss’s motion to reissue summons (Dkt. 24) should be denied
as moot. The Marshals already have a summons with the correct registered agent
for service of process and the correct service address—they simply have not served
SLS yet. Accordingly, I recommend that the Marshals be directed to effect service
on SLS.
MODCORR’S RULE 12(b)(6) MOTION TO DISMISS
ModCorr seeks dismissal of Moss’s claims against it pursuant to Rule
12(b)(6) for failure to state a claim. Specifically, ModCorr argues that Moss cannot
state a claim against it because she failed to exhaust her administrative remedies
as to ModCorr by failing to name ModCorr in her charge of discrimination (the
“Charge”) 	with 	the 	Equal 	Employment 	Opportunity 	Commission 	(“EEOC”).
Additionally, ModCorr argues that, even if Moss had exhausted her administrative
remedies as to ModCorr, her claims against ModCorr are time-barred because
Moss “added ModCorr after the 90-day deadline from her EEOC right-to-sue letter
expired, and relation back under Rule 15(c) is unavailable absent mistaken
identity, which is not present here.” Dkt. 21 at 2–3.
A. 	L EGAL S TANDARD
1. 	Rule 12(b)(6)
When evaluating a motion to dismiss for failure to state a claim, a court
accepts “all well-pleaded facts as true and view[s] those facts in the light most
favorable to the plaintiff.” Cummings v. Premier Rehab Keller, P.L.L.C., 948 F.3d
673, 675 (5th Cir. 2020) (quotation omitted). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Id. (quotation omitted). Under this standard,
a district court must demand “more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility
of entitlement to relief.” Id. (quotations omitted). In ruling on a motion to dismiss,
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my “review is limited to the complaint, any documents attached to the complaint,
and any documents attached to the motion to dismiss that are central to the claim
and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010).
2. 	Exhaustion of Administrative Remedies and the 90-Day
Filing Requirement
“Before filing a claim under Title VII in federal court, plaintiffs must first
exhaust their administrative remedies by filing a charge of discrimination with the
[EEOC] within a statutorily mandated time period.” Wiggins v. Golden Corral
Corp., 802 F. App’x 812, 814 (5th Cir. 2020) (quotation omitted). “Administrative
exhaustion for Title VII claims is mandatory (but not jurisdictional), and courts
will dismiss claims not properly exhausted.” Id. (cleaned up). “[A] party not named
in an EEOC charge may not be sued under Title VII unless there is a clear identity
of interest between it and the party named in the charge or it has unfairly prevented
the filing of an EEOC charge.” Way v. Mueller Brass Co., 840 F.2d 303, 307 (5th
Cir. 1988). In addition to the identity-of-interest exception, the Fifth Circuit also
recognizes an exception for a defendant who had “actual notice of the charge and
an opportunity to participate in conciliation.” E.E.O.C. v. Simbaki, Ltd., 767 F.3d
475, 484 (5th Cir. 2014), as revised (Sept. 18, 2014). Only the identity-of-interest
exception is at issue in this case.
The Fifth Circuit has adopted a four-part test to determine “whether there
was sufficient identity-of-interest between the named and the unnamed party so
that the unnamed party could be sued in court despite not being named in the
charge.” Id. at 482. That four-part test considers:
1) whether the role of the unnamed party could through reasonable
effort by the complainant be ascertained at the time of the filing of the
EEOC complaint;
2) whether, under the circumstances, the interests of a named are so
similar as the unnamed party’s that for the purpose of obtaining
voluntary conciliation and compliance it would be unnecessary to
include the unnamed party in the EEOC proceedings;
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3) whether its absence from the EEOC proceedings resulted in actual
prejudice to the interests of the unnamed party;
4) whether the unnamed party has in some way represented to the
complainant that its relationship with the complainant is to be
through the named party.
Id. at 482–83.
In addition to the naming requirement, “Title VII provides that claimants
have ninety days to file a civil action after receipt of such a notice from the EEOC.”
Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (citing 42 U.S.C.
§ 2000e-5(f)(1)). “[T]he ADA incorporates by reference the procedures applicable
to actions under Title VII,” including the 90-day filing requirement. Dao v. Auchan
Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996). “This requirement to file a lawsuit
within the ninety-day limitation period is strictly construed.” Taylor, 296 F.3d at
379.
B. 	A NALYSIS
Moss filed her Charge with the EEOC on May 17, 2025. See Dkt. 1-5. In the
section asking Moss to name “the Employer, Labor Organization, Employment
Agency, Apprenticeship Committee, or State or Local Government Agency that
[she] believe[s] discriminated against [her] or others,” Moss named only SLS,
despite there being space to name two entities. See id. at 1. The only time that Moss
referenced ModCorr in her Charge is when she asserted that she “was removed
from the ModCorr account.” Id.
Moss received her right-to-sue letter on June 20, 2025. See Dkt. 1-4.
Pursuant to the 90-day filing requirement, Moss had until September 18, 2025, to
sue any defendant that she wants to hold liable for the claims discussed in her
Charge. Moss filed her complaint on September 18, 2025, naming only SLS as a
defendant. Moss did not add ModCorr as a defendant until November 6, 2025,
after the statutory limitations period had closed.
In her response to Defendants’ motion to dismiss, Moss does not contest
that ModCorr was not named as her employer in her Charge, and was not named
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as a defendant in this lawsuit until after the 90-day filing deadline. In fact, this is
the sum of Moss’s response as to ModCorr:
x 	The EEOC charge describes events involving the ModCorr
account
x 	The allegations arise from the same workplace events involving
SLSCO and ModCorr
x 	The entities share overlapping operational relationships
Because the claims arise from the same conduct described in
the EEOC charge, dismissal at this stage would be premature.
Dkt. 23 at 2. None of these arguments establish that ModCorr and SLS are so
related that Moss should be excepted from Title VII’s naming requirement or the
90-day filing requirement.
Moss has alleged zero facts from which this court could reasonably conclude
that SLS and ModCorr are essentially one in the same. There is no reason to believe
that ModCorr was Moss’s employer. Moss has never alleged as much. The fact that
ModCorr is mentioned in Moss’s allegations against SLS, and that the SLS and
ModCorr appear to do business together, are simply not sufficient to bring
ModCorr within the identity-of-interest exception to the naming requirement.
Because Moss did not name ModCorr in her Charge and did not name ModCorr in
this lawsuit until after the 90-day deadline, I find that Moss has not exhausted her
administrative remedies as to ModCorr and that, even if she had, her claims
against ModCorr are time-barred.
For these reasons, Defendants’ motion to dismiss should be granted as to
ModCorr.
CONCLUSION
For the reasons discussed above, I recommend that Moss’s motion for
extension of time (Dkt. 22) be granted, Moss’s motion to reissue summons be
denied as moot (Dkt. 24), Defendants’ motion to dismiss (Dkt. 21) be denied as to
SLS, and the Marshals be ordered to effect service on SLS. I further recommend
that Defendants’ motion to dismiss (Dkt. 21) be granted as to ModCorr.
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The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this 	day of March 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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