Le v. General Motors Company

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DANH CONG LE,
Plaintiff,
v.
GENERAL MOTORS COMPANY, et al.,
Defendants.
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CIVIL ACTION NO. H-25-209
MEMORANDUM AND OPINION
Danh Cong Le sued General Motors LLC, alleging a number of issues relating to a 2024
GMC Sierra 2500HD. 	On July 24, 2025, the court granted General Motors’s second motion to
dismiss and granted Le one final opportunity to properly serve General Motors and to allege facts
in an amended complaint stating a plausible claim for relief as to each cause of action asserted.
(Docket Entry No. 44 at 3). Le filed a third amended complaint. (Docket Entry No. 52). General
Motors again moved to dismiss, arguing both that Le had again failed to properly serve it in
compliance with Rule 4 of the Federal Rules of Civil Procedure and that the third amended
complaint still failed to plausibly plead any viable causes of action. (Docket Entry No. 53). Based
on the pleadings, the motion, the history of this case, and the court’s past orders, the court grants
the motion to dismiss. This case is dismissed, with prejudice, because further amendment would
be futile. The reasons are explained below.
I. 	Background
This case began in December 2024, when Le sued General Motors in state court for alleged
defects related to his GMC Sierra. (Docket Entry Nos. 1, 1-1). Le asserted that General Motors
was liable for the issues with his vehicle, including a defective computer module, faulty brakes,
United States District Court
Southern District of Texas
ENTERED
April 14, 2026
Nathan Ochsner, Clerk
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damage to the oil valve, and mishandling repairs, all of which made the car unsafe. (Docket Entry
No. 1-1 at 6). In addition to his product liability and negligence claims, Le also brought claims
for defamation and unfair business practices. (Id. at 7). General Motors removed to this court.
(Docket Entry No. 1). General Motors moved to dismiss Le’s amended complaint. (Docket Entry
No. 4). The court granted General Motors’s motion to dismiss for lack of personal jurisdiction.
(Docket Entry No. 34).
On April 16, 2025, Le filed a second amended complaint, adding ESIS, Inc. as a defendant.
(Docket Entry No. 35). 	On July 24, 2025, the court granted the defendants’ motion to dismiss,
concluding that neither party had been properly served because “Rule 4 is clear that the summons
and complaint must be served by someone who is ‘not a party’” and so Le could not serve the
parties himself, as he had tried to do. (Docket Entry No. 44 at 1 (quoting Fed. R. Civ. P. 4(c)(2))).
The court also concluded that Le had failed to state a plausible claim for relief against either
defendant. (Id. at 2). The court refused to consider factual assertions contained elsewhere in Le’s
filings that did not appear in his pleadings. (Id. at 3). The court gave Le “one final opportunity to
amend his complaint.” 	(Id.). 	The court ordered Le to properly serve the defendants with the
summons and next amended complaint in accordance with Rule 4 and to amend his complaint to
state each cause of action, the supporting facts, and the relief sought. (Id.).
Le subsequently filed his third amended complaint (inaccurately labeled as the second
amended complaint). (Docket Entry No. 52). General Motors again moved to dismiss under both
Rule 12(b)(5) and Rule 12(b)(6). (Docket Entry No. 53). General Motors argued that despite the
court’s clear orders, Le again failed to properly serve the summons and complaint under Rule 4,
because (1) Le cannot serve the summons and complaint himself, (2) no summons had been issued
for General Motors, as required by both this court’s rules and the local rules, and (3) regardless, a
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copy of the summons and complaint was not properly delivered, given that Le merely emailed the
third amended complaint to General Motors’s local counsel, which is not proper service under
either Rule 4 or applicable state law. (Docket Entry No. 53 at 6–9). General Motors also argues
that, in any event, Le has failed to state any plausible claims for relief against it. 	(Id. at 9–14).
ESIS also filed a motion to dismiss, (Docket Entry No. 54), although it has since been dismissed
from this suit under Rule 41(a)(1)(A)(i), (Docket Entry Nos. 60, 61).
II. 	The Legal Standard
A. The Rule 12(b)(5) Standard
A party may raise insufficient process or insufficient service of process by moving to
dismiss under Rule 12(b)(4) or 12(b)(5). “A motion to dismiss pursuant to 12(b)(5) turns on the
legal sufficiency of the service of process.” 	Quinn v. Miller, 470 F. App’x 321, 323 (5th Cir.
2012). “The party making service has the burden of demonstrating its validity when an objection
to service is made.” 	Holly v. Metropolitan Transit Authority, 213 F. App’x 343, 344 (5th Cir.
2007) (citing Carimi v. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992)).
“In the absence of valid service of process, proceedings against a party are void.” 	Aetna Bus.
Credit, Inc. v. Universal Decor & Interior Design, 635 F.2d 434, 435 (5th Cir. 1981).
“For service to be effective, a plaintiff must comply with the requirements of Rule 4.”
Harris v. HireRight LLC, No. 3:23-CV-01679-E, 2024 WL 4805375, at *2 (N.D. Tex. Nov. 15,
2024). “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.” Id.
B. The Rule 12(b)(6) Standard
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be
granted.” 	FED. R. CIV. P. 12(b)(6). 	Rule 12(b)(6) must be read in conjunction with Rule 8(a),
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which requires “a short and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” 	Id. at 678 (quoting Twombly, 550 U.S. at 555). 	“A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
“A complaint ‘does not need detailed factual allegations,’ but the facts alleged ‘must be
enough to raise a right to relief above the speculative level.’” Cicalese v. Univ. Tex. Med. Branch,
924 F.3d 762, 765 (5th Cir. 2019) (quoting Twombly, 550 U.S. at 555). “Conversely, when the
allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic
deficiency should be exposed at the point of minimum expenditure of time and money by the
parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (cleaned up).
III. 	Analysis
A. Rule 12(b)(5)
General Motors asserts that three separate failures justify dismissal under Rule 12(b)(5).
First, it argues that Le cannot effect service himself. (Docket Entry No. 53 at 6). Second, General
Motors argues that no summons has been issued, as required by the federal rules and the court’s
local rules, and that with no summons, a defendant cannot be properly served. 	(Id.). 	Third,
General Motors argues that Le simply emailed the third amended complaint to General Motors’s
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local counsel, which is not sufficient to meet Rule 4, which requires that, to serve an LLC like
General Motors, service be made either 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” or by following state law. (Id. at 7 (quoting Fed. R. Civ. P. 4(h)(1))).
The court need not reach all three grounds to dismiss this case under Rule 12(b)(5). In its
order dismissing Le’s second amended complaint and allowing him leave to amend, the court
explained in no uncertain terms that under Rule 4, Le could not serve General Motors himself.
(See Docket Entry No. 44 at 1 (“Rule 4 is clear that the summons and complaint must be served
by someone who is ‘not a party.’ 	FED. R. CIV. P. 4(c)(2). 	As the plaintiff in this case, Mr. Le
cannot personally serve the defendants. Neither defendant has been properly served.”)). Le had
attempted service on General Motors by sending the complaint to General Motors himself by
Certified Mail. 	(Docket Entry No. 40). 	The court warned Le that “[i]f the defendants are not
properly and timely served . . . this case will be dismissed with prejudice.” (Docket Entry No. 44
at 3); see Crittendon v. Tex. Dep’t of Health & Human Servs., Civ. Action No. H-19-1624, 2019
WL 5927261, at *3 (S.D. Tex. Nov. 12, 2019) (dismissing a case with prejudice for failure to
properly serve the defendant).
The docket reflects that, once again, Le has tried to serve General Motors himself and has
otherwise failed to properly serve General Motors. 	On August 5, 2025, Le filed a “proof of
service” stating that—again—he had served General Motors via certified mail, which “confirm[ed]
compliance with the Court’s prior instructions regarding proper service of the Amended Complaint
on the correct defendant entities.”1 (Docket Entry No. 47). As an initial matter, the court ordered
1 Also on August 5, 2025, Le also filed a “Notice of Evidence Submission” asserting that he had already
properly served General Motors on June 10, 2025, (Docket Entry No. 46), even though the court had found
in its July 24, 2025, order that the attempted June service was improper.
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Le to serve General Motors with a copy of the next amended complaint, not the old amended
complaint, which the court had already dismissed for failure to state a claim. (Docket Entry No.
44 at 3). Le did not file his third amended complaint until September 26, 2025, indicating that the
proof of service he filed did not relate to the third amended complaint, as the court had ordered.
In addition, despite the court’s order stating that he cannot serve a party himself, Le again
seemingly tried to mail that version of the complaint himself. 	There is no indication in this
purported proof of service or elsewhere that an independent third party sent the mail, nor a return
receipt indicating that the mail was received. (See generally Docket Entry No. 47).
Next, to the extent that Le tried to serve the third amended complaint, there is no proof of
service relating to that version of the complaint nor any indication that General Motors was
properly served. General Motors asserts that Le merely emailed the third amended complaint to
General Motors’s local counsel and provided the court with the email to which Le attached the
third amended complaint. (Docket Entry No. 53 at 7; Docket Entry No. 53-1). Le does not address
General Motors’s arguments about improper service at all in his response to the motion to dismiss,
(Docket Entry No. 55), even though he bears the burden of demonstrating proper service once
General Motors has challenged that service. Again, because Le is a party, he cannot personally
serve the opposing party. “[U]nder both the Federal Rules of Civil Procedure and the Texas Rules
of Civil Procedure, a party is not permitted to serve process, even by mail.” Avdeef v. Royal Bank
of Scot., P.L.C., 616 F. App’x 665, 672 (5th Cir. 2015). “There is no exception for pro se litigants.”
Id.; see also Shabazz v. City of Hous., 515 F. App’x 263, 264 (5th Cir. 2013) (per curiam); Craig
v. Am. Honda Motor Co., Civ. Action No. 9:21-CV-043, 2021 WL 5501794, at *2 (E.D. Tex. Oct.
26, 	2021) 	(“Plaintiff, 	by 	sending 	the 	summons 	personally, 	has 	not 	properly 	effectuated
service.”), report and recommendation adopted, 2021 WL 5493362 (E.D. Tex. Nov. 22, 2021).
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And, as General Motors points out, (Docket Entry No. 53 at 7–8), emailing its local counsel is
insufficient under any relevant state’s law anyway. 	See TEX. R. CIV . P. 103; M ICH. CT . R.
2.105(H); 6 DEL . CODE § 18-105(a).
Le’s method of service does not comply with federal law or state law procedure. He has
not shown good cause for failing to comply with the court’s order instructing him that he needed
to properly serve General Motors with the latest amended complaint and that he could not serve
General Motors himself. This complaint is dismissed for repeated improper service.
B. Rule 12(b)(6)
Alternatively, the court grants dismissal under Rule 12(b)(6) because Le has failed to state
any claims upon which relief could be granted. The court gave Le one final opportunity to amend
his complaint to meet the standards of Rule 8, and he has failed to do so. The dismissal is with
prejudice because repeated amendments have failed to cure the deficiencies and further
amendment would be futile.
1. 	Negligence and Gross Negligence
“Under Texas law, the elements of a negligence claim are (1) a legal duty on the part of
the defendant; (2) a breach of that duty; and (3) damages proximately resulting from that breach.”
Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008) (quoting Sport Supply Grp., Inc. v.
Columbia Cas. Co., 335 F.3d 453, 466 (5th Cir. 2003)). “Gross negligence is a heightened form
of negligence which requires proof of ‘an extreme degree of risk’ and a ‘conscious indifference’
by the negligent actor.” 	Id. (quoting Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.
1998)).
Le alleges negligence against General Motors on the ground that it “owed [him] a duty to
repair the vehicle safely and competently.” (Docket Entry 52 at 2). He alleges that General Motors
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breached that duty by “knowingly returning the truck with unresolved defects and concealing
diagnostic results.” (Id.). He alleges gross negligence because General Motors’s “instructions to
technicians to reassemble the engine without fixing it,” “concealment of diagnostics,” and
“repeated return of an unsafe vehicle” show a conscious disregard for his and his family’s safety.
(Id.). Le has provided various invoices and reports from independent General Motors dealerships
for repairs to the truck. (Id. at 4–18).
As General Motors points out, the only negligence claims in the third amended complaint
relate to the negligent repair of Le’s vehicle. (Docket Entry No. 53 at 9). And as General Motors
further points out, the supporting exhibits show that all the repairs were done by independent
dealerships. (Id. at 10). Those dealerships are not a party to this case and there is no allegation in
the third amended complaint that General Motors itself was involved in or had control over the
repairs. 	Le asserts in his response brief that the technician at the authorized Sterling McCall
dealership received “DIRECT ORDERS FROM GENERAL MOTORS CORPORATE” to
perform the diagnostics and basic repair but not to fix the underlying engine problem, (Docket
Entry No. 55 at 3), but neither that alleged fact nor any of the other allegations in the response
brief about General Motors’s direct involvement in the repairs is included in the third amended
complaint. The court previously warned Le that the factual assertions he relies on must be “on the
face” of his complaint, and not in a motion or other document that was not a pleading. (Docket
Entry No. 44 at 3). The court cannot consider the allegations of corporate control and involvement
that are not in the third amended complaint. 	In addition, to the extent that the third amended
complaint could also potentially be construed as asserting negligence claims against General
Motors for building a faulty car, “[a] party may not disguise a products liability claim as a
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negligence claim to avoid dismissal.” Murray v. Gen. Motors, L.L.C., 478 F. App’x 175, 181 (5th
Cir. 2012) (per curiam).
Because Le has not plausibly pleaded a negligence claim against General Motors, there is
no viable gross negligence claim. See Perez v. U.S. Xpress, Inc., No. 6:21-CV-00432-ADA, 2023
WL 3681714 (W.D. Tex. Mar. 10, 2023) (“A plaintiff who cannot support a cause of action for
negligence cannot recover for gross negligence because a finding of ordinary negligence is a
prerequisite to a finding of gross negligence.” (quoting Madrid v. Galp Waters Ltd. P’Ship, No.
H-12-3252, 2014 WL 12539253, at *3 (S.D. Tex. June 6, 2014))). Regardless, gross negligence
consists of two components. 	A plaintiff “must prove by clear and convincing evidence that 1)
when viewed objectively from Defendants’ standpoint at the time of the event, the act or omission
involved an extreme degree of risk, considering the probability and magnitude of the potential
harm to others and 2) Defendants had actual, subjective awareness of the risk involved, but
nevertheless proceeding with conscious indifference to the rights, safety, or welfare of others.”
Phillips v. Super Servs. Holdings, LLC, 189 F. Supp. 3d 640, 654 (S.D. Tex. 2016). 	Even
assuming (and the court does not) that General Motors had committed acts or omissions that
involved an extreme degree of risk, there are no non-conclusory factual allegations in Le’s third
amended complaint that General Motors had subjective awareness of the risks involved and
proceeded with conscious indifference to others. (See generally Docket Entry No. 53).
The negligence and gross negligence claims are dismissed, with prejudice, for failure to
state a claim and for failure to comply with the court’s order requiring Le to plausibly plead this
claim in his final amended complaint.
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2. 	Breach of Warranty
To establish breach of an express warranty, a plaintiff “must allege (1) an express
affirmation of fact or promise by the seller relating the goods; that such affirmation of fact or
promise by the seller became a part of the basis of the bargain; (3) that [Plaintiff] relied upon said
affirmation of fact or promise; (4) that the goods failed to comply with the affirmation of fact or
promise; (5) [Plaintiff] [was] injured by such failure of the product to comply with the express
warranty; and (6) that such failure was the proximate cause of [Plaintiff’s] injury.” Bauer v. AGCO
Corp., 770 F. Supp. 3d 957, 962 (W.D. Tex. 2025) (alterations in original) (quoting Harris v. BMW
of N. Am., No. 4:19-CV-00016, 2020WL 7081808, at *5 (E.D. Tex. Dec. 3, 2020)). Both claims
for breach of implied warranty and breach of express warranty require the plaintiff to provide pre-
suit notice. See Orrson v. Sig Sauer, Inc., Civ. Action No. H-25-1776, 2026 WL 494129, at *6
(S.D. Tex. Feb. 23, 2026).
Even setting aside the numerous other issues with Le’s breach of warranty claim, he does
not allege that he provided General Motors with pre-suit notice. (See generally Docket Entry No.
52). 	That dooms his claim. 	Notably, “commencement of litigation does not satisfy the notice
requirement.” McKay v. Novartis Pharm. Corp., 751 F.3d 694, 706 (5th Cir. 2014) (quoting U.S.
Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 201–02 (Tex. App.—Houston [1st Dist.] 2003,
pet. denied)). Without pre-suit notice, Le’s breach of warranty claim cannot proceed. See Morgan
v. Medtronic, 172 F. Supp. 3d 959, 970 (S.D. Tex. 2010) (dismissing breach of warranty claims
because the plaintiff did not provide pre-suit notice and stating that “[c]ourts in Texas consistently
hold that failure to provide pre-suit notice is fatal to a plaintiff’s warranty claim”).
This claim is dismissed, with prejudice, for failure to state a claim and for failure to comply
with the court’s order requiring Le to plausibly plead this claim in his final amended complaint.
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IV. 	Conclusion
Le argues that because he is proceeding pro se, the court must construe his pleadings
liberally to avoid dismissal. 	(Docket Entry No. 55 at 3). 	That is true. 	But it is also true that
although pro se complaints are “held to less stringent standards than formal pleadings drafted by
lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)), “pro se status does not provide an ‘impenetrable shield,’ ‘for one acting pro se has
no license to harass others, clog the machinery with meritless litigation and abuse overloaded court
dockets.’” Hunsinger v. Valor Intelligent Processing, No. 3:25-cv-1880-X-BT, 2026 WL 271032,
at *2 (N.D. Tex. Jan. 13, 2026) (quoting Farguson v. MBank Houston, N.A., 808 F.2d 358, 359
(5th Cir. 1986)), report and recommendation adopted, 2026 WL 269365 (N.D. Tex. Jan. 30, 2026).
The court has repeatedly warned Le of the deficiencies in service and the deficiencies in his
complaint and allowed Le multiple opportunities to fix those deficiencies. He has failed to do so.
The court grants the motion to dismiss. (Docket Entry No. 53). This case is dismissed,
with prejudice, for failure to properly serve General Motors under Rule 12(b)(5), for failure to
state a claim under Rule 12(b)(6), and for failure to follow this court’s orders. See, e.g., Fuller v.
Texas, No. 6:25-cv-00364, 2026 WL 503584, at *1 (E.D. Tex. Feb. 23, 2026) (noting that “failure
to comply with an order of the court is grounds for dismissal with prejudice” (quoting Slack v.
McDaniel, 529 U.S. 473, 489 (2000))).
SIGNED on April 13, 2026, at Houston, Texas.
________________________________
Lee H. Rosenthal
Senior United States District Judge
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