     Case: 16-50171      Document: 00513785309         Page: 1    Date Filed: 12/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                      No. 16-50171                           FILED
                                                                      December 6, 2016
                                                                        Lyle W. Cayce
MICHELLE HENDERSON,                                                          Clerk

              Plaintiff - Appellant

v.

REPUBLIC OF TEXAS BIKER RALLY, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:15-CV-392


Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       While attending the Republic of Texas Biker Rally (“Rally”), Michelle
Henderson was seriously injured when a golf cart operated by a fellow attendee
struck her, pinning her beneath it. Henderson sued Republic of Texas Biker
Rally, Inc. (“ROT”) for negligence. ROT moved to dismiss, asserting defenses
of insufficient process under Federal Rule of Civil Procedure 12(b)(4) and




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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insufficient service of process under Rule 12(b)(5). The district court granted
ROT’s motion. Henderson appeals. We AFFIRM.
                                        I
      The Rally is organized by ROT and hosted annually in Austin, Texas.
Henderson attended the Rally in 2013 and was seriously injured when she was
struck by a golf cart. She filed suit against ROT and others in Texas state court,
bringing a cause of action for negligence against ROT. The case was eventually
removed to federal district court.
      ROT moved to dismiss on the grounds that Henderson failed to
effectively serve ROT prior to the expiration of Texas’s two-year statute of
limitations for negligence claims. ROT argued that: (1) Henderson’s service on
ROT was insufficient because her attempts at service failed to abide by Texas
law or the Federal Rules; and (2) even if her service was adequate, it was
untimely. The district court granted the motion.
                                        II
      “We review a dismissal for failure to effect timely service of process for
an abuse of discretion.” Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 445 (5th
Cir. 1996). “Generally, an abuse of discretion only occurs where no reasonable
person could take the view adopted by the trial court.” Ratliff v. Stewart, 508
F.3d 225, 229 (5th Cir. 2007). District courts enjoy broad discretion in Rule
12(b)(4) and 12(b)(5) contexts, so our review is particularly deferential when a
district court dismisses an action for ineffective service. See George v. U.S.
Dept. of Labor, Occupational Safety & Health Admin., 788 F.2d 1115, 1116 (5th
Cir. 1986) (“The district court enjoys a broad discretion in determining whether
to dismiss an action for ineffective service of process.”). Finally, “once the
validity of service of process has been contested, the plaintiff bears the burden
of establishing its validity.” Carimi v. Royal Caribbean Cruise Line, Inc., 959
F.2d 1344, 1346 (5th Cir. 1992).
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                                        III
      Texas has a two-year statute of limitations for negligence claims. See
Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). Under Texas law, a plaintiff
must both file suit and serve process on the defendant within the limitations
period or her claim is time-barred. See Rigo Mfg. Co. v. Thomas, 458 S.W.2d
180, 182 (Tex. 1970) (noting that the Supreme Court of Texas “long ago
established the rule that the mere filing of a suit will not interrupt or toll the
running of a statute of limitation; that to interrupt the statute, the use of
diligence in procuring the issuance and service of citation is required”). If a
defendant files suit within the limitations period, and then diligently and
continually attempts to serve the defendant but is unable to do so until after
the limitations period expires, the date of service will relate back to the date
suit was filed. See Parsons v. Turley, 109 S.W.3d 804, 808 (Tex.App.–Dallas
2003, pet.) (“The duty to use due diligence continues from the date the suit is
filed until the date the defendant is served.”) A plaintiff must satisfactorily
“present evidence regarding the efforts that were made to serve the defendant,
and to explain every lapse in effort or period of delay.” Proulx v. Wells, 235
S.W.3d 213, 216 (Tex. 2007).
      A corporation in the United States can be served either:

      (A) in the manner prescribed by Rule 4(e)(1) for serving an
          individual; or
      (B) by 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 and—if the agent is one authorized by statute and the
          statute so requires—by also mailing a copy of each to the
          defendant.

Fed R. Civ. P. 4(h)(1). Rule 4(e)(1) allows for service to be effected 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
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made.” Under Texas law, a corporation may be served through the
corporation’s registered agent, president, or vice president. See Tex. Bus. Orgs.
Code Ann. §§ 5.201, 5.255(1). If a corporation fails to maintain a registered
agent in Texas or the registered agent cannot be served through reasonable
diligence, a plaintiff may serve the Texas Secretary of State instead. See id.,
§ 5.251.
                                            IV
       Henderson’s cause of action accrued on the date of the golf cart
incident—June 13, 2013. The statute of limitations for her negligence claims
expired two years later, on June 13, 2015. Henderson filed suit in Texas state
court on July 30, 2014, well within the limitations period. On June 11, 2015,
two days before the limitations period expired, Henderson requested that ROT
waive service. The waiver request was served on Lynn Castagna, who
Henderson evidently believed was ROT’s outside counsel at the time.
Henderson then attempted to serve ROT’s registered agent on June 12, 2015,
but was unsuccessful. Finally, Henderson served ROT’s registered agent at the
Rally held on June 15, 2015—two days after the limitations period expired.
       We must decide two issues: (1) whether the June 11, 2015 waiver request
was effective; and (2) if not, whether Henderson diligently attempted to serve
ROT such that the untimely service on June 15, 2015 related back to the date
she filed suit. 1
       Rule 4(d) describes how a plaintiff may request that a defendant waive
service. If the defendant is a corporation, the request must be addressed “to an
officer, a managing or general agent, or any other agent authorized by



       1 The district court determined that, regardless of whether Henderson’s efforts were
diligent, she failed to properly serve ROT according to Texas law. We assume without
deciding that the eventual service was legally proper and address only whether she exercised
due diligence as a matter of law.
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                                 No. 16-50171
appointment or by law to receive service of process.” Fed R. Civ. P.
4(d)(1)(A)(ii). Here, Henderson addressed the waiver request to “Republic of
Texas Biker Rally, Inc. c/o Lynn Castagna,” and provided the business address
for Castagna’s law firm. As the district court noted, “Ms. Castagna is not ROT’s
registered agent, president, or vice president under Texas law, nor is she an
officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service of process.” Henderson v. Republic of
Tex. Biker Rally, Inc., 2015 WL 6829514, at *3 (W.D. Tex. Nov. 6, 2015).
Henderson’s waiver request was thus ineffective.
      We next turn to the diligence issue. A lack of diligence may be
established as a matter of law if “one or more lapses between service efforts
are unexplained or patently unreasonable.” Proulx, 235 S.W.3d at 216. Here,
there is no dispute that Henderson did not serve ROT’s registered agent until
June 15, 2015—two days after the limitations period expired. Henderson
argues that she diligently attempted to serve ROT, so the date of service should
relate back to the date she filed suit. Henderson attempted to serve ROT’s
registered agent on August 16, 2014 and then again on September 7, 2014, but
was unsuccessful. Her next attempt at service did not come until nine months
later on June 12, 2015—the day before the limitations period expired.
Henderson offers no excuse for this extended delay. She notes only that ROT
changed registered agents in December 2014. But Henderson admits she did
not discover the change until nearly six months later, even though that
information was public and readily available.
      Henderson has not explained the more than nine-month gap between her
failed attempts to serve ROT. Texas courts have regularly held that
comparable gaps conclusively negate a finding of diligence as a matter of law.
See Proulx, 235 S.W.3d at 217 (collecting cases). Consequently, the eventual
date of service does not relate back to the date Henderson’s suit was filed.
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Because Henderson did not effect service on ROT until after the limitations
period expired, her negligence claim is time-barred.
                                       V
      ROT asks us to find that Henderson’s appeal is frivolous, and to order
her to pay ROT’s reasonable attorney’s fees and double ROT’s costs under
Federal Rule of Appellate Procedure 38. We decline to find that Henderson’s
appeal is “wholly without merit.” Howard v. St. Germain, 599 F.3d 455, 458
(5th Cir. 2010). ROT’s request for attorney’s fees and extra costs is denied.
                                       VI
      The district court’s ruling is AFFIRMED.




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