Carr v. The City of Spring Valley Village et al, No. 4:2018cv02585 - Document 21 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER denying 18 MOTION for New Trial, Reconsideration, and to Reinstate Case (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Carr v. The City of Spring Valley Village et al Doc. 21 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION LAKITA CARR, Individually and As Representative of the ESTATE OF DARRALL THOMAS, and ANGELINA LEFFYEAR, As Next Friend for D.T. I JR. I Plaintiffs, v. THE CITY OF SPRING VALLEY VILLAGE; THE CITY OF HEDWIG VILLAGE; MEMORIAL VILLAGE, AXON (formerly TASER INTERNATIONAL) ; JOSEPH DARREHSHOORI, In His Individual Capacity; TRENT B. WOOD, In His Individual Capacity; NATHAN FRAZIER, In His Individual Capacity; RICHARD ANTONIO HERNANDEZ, In His Individual Capacity; CARLOS PINEDA, In His Individual Capacity; ERIC SILLIMAN, In His Individual Capacity; MANNY AGUILAR, In His Individual Capacity; DONALD NOWLIN, In His Individual Capacity; MARK STOKES, In His Individual Capacity; JERRY HANSON, In His Individual Capacity; and STEPHEN SANFORD, In His Individual Capacity, Defendants. § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § CIVIL ACTION NO. H-18-2585 MEMORANDUM OPINION AND ORDER Plaintiffs, Lakita Carr and Angelina Leffyear, brought this action against numerous defendants for violation of civil rights Dockets.Justia.com guaranteed by the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983, and for negligence, wrongful death, under Texas law arising from the May 31, Thomas. and survival claims 2016, death of Darrall On March 20, 2019, the court entered a Memorandum Opinion and Order (Docket Entry No. 15) granting motions to dismiss filed by defendants Spring Branch Independent School District ("SBISD"), Scott Williams ("Williams") , and (collectively, "the SBISD Defendants") Jerry Hanson ("Hanson") (Docket Entry No. 7), and by defendants Carlos Pineda ("Pineda"), Stephen Sanford ("Sanford"), Eric Silliman ("Silliman") , Donald Nowlin ("Nowlin"), City of Hedwig Village ("CHV") and City of Spring Valley Village ("CSVV") (Docket Entry No. 8); denying plaintiffs' requests to amend; and concluding that the claims asserted against all other defendants should be dismissed for want of prosecution under Federal Rule of Civil Procedure 4(m) because plaintiffs failed to file proofs of service for any defendants. entered a Final Judgment On March 20, (Docket Entry No. 2019, the court also 16) dismissing with prejudice the claims asserted against the defendants who had filed motions to dismiss and dismissing without prejudice the claims asserted against all other defendants. Plaintiffs' Motion for New Trial, ("Plaintiffs' Pending before the court is to Reinstate and Reopen Case Motion for New Trial") (Docket Entry No. which the SBISD Defendants have responded. 1 1 18) , to For the reasons stated SBISD Defendants' Response to Plaintiff's Motion for New Trial, to Reinstate and Reopen Case ("SBISD Defendants' Response"), Docket Entry No. 19. -2- below, plaintiffs' motion for new trial, to reinstate and reopen will be denied. I. Plaintiffs' Standard of Review Motion for New Trial does not cite the authority pursuant to which plaintiffs seek relief. legal The timing of plaintiffs' motion challenging the court's ruling determines how their motion should be evaluated. A motion asking the court to reconsider a prior ruling is evaluated either as a motion to "alter or amend a judgment" under Rule 59 (e) or as a motion for "relief from a final judgment, order, or proceeding" under Rule 60(b). The rule under which the motion is considered is based on when the motion was filed. If the motion was filed within twenty-eight days after the entry of the judgment, the motion is treated as though it was filed under Rule 59, and if it was filed outside of that time, it is analyzed under Rule 60. Demahy v. Schwarz Pharma, Inc., 2012) denied, (per curiam), cert. 702 F.3d 177, 134 S. Ct. 182 n.2 57 (5th Cir. (2013) Texas A&M Research Foundation v. Magna Transportation, (citing Inc., 338 F. 3d 394, 400 (5th Cir. 2003)). Because the pending motion was filed the twenty-eighth after on day the Final Judgment was entered, the court will consider it under Rule 59(e) Rule 59(e) motions "serve[] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence." 479 Rule (5th Cir. 59 (e) 2004), motion Templet v. HydroChem, cert. "'calls denied, 125 S. into question Inc., 367 F.3d 473, Ct. the 411 (2005). correctness of A a judgment'" and "is not the proper vehicle for rehashing evidence, -3- legal theories, or arguments that could have been offered or raised before Rule the 59 (e) sparingly." entry of is an Id. "extraordinary at 478-79. remedy that Relief should under be used Id. at 479. II. A. judgment." Plaintiffs' Motion for New Trial Background On July 25, 2018, this action was District Court of Harris County, Texas, removed from the 281st where it was originally filed on May 31, 2018, under Cause No. 2018-36505. 2 The Notice of Removal states that the following defendants were served, agreed to removal, and removed this action within thirty days of having been served: Sanford, CHV, CSVV, Silliman, Nowlin, and Pineda. 3 The Notice of Removal also states that "[n]o other Defendant has been served with process in the state action." 4 On August 7, 2018, the court issued an Order for Conference and Disclosure of Interested Parties (Docket Entry No. 3, p. 2 ~ 9) -that included the following notice to the plaintiffs: Fed. R. Civ. P. 4(m) requires defendant(s) to be served within 90 days after the filing of the complaint. The failure of plaintiff{s) to file proof of service within 2 Defendants' Carlos Pineda, Stephen Sanford, Eric Silliman, Donald Nowlin, City of Hedwig Village and City of Spring Valley, Notice of Removal, Docket Entry No. 1 and Exhibit B (state court docket sheet) . 3 Id. at 2 ~~ 3-5 and 7. -4- 90 days after the filing of the complaint may result in dismissal of this action by the court on its own initiative without further notice. 5 On August 22, 2018, plaintiffs filed Plaintiffs' Amended Complaint (Docket Entry No. 6). On August 31, 2018, the SBISD Defendants appeared in this action by filing a motion to dismiss. 6 On September 21, plaintiffs filed a response to the SBISD Defendants' Dismiss in complaint which and they asked argued for the leave adequacy to amend 2018, Motion to of their amended if needed. 7 On September 28, 2018, the SBISD Defendants filed a reply. 8 On September 5, motion to dismiss: CSVV. 9 2018, Pineda, the following six defendants filed a Sanford, Silliman, Nowlin, CHV, and On September 26, 2018, plaintiffs filed a response to these six defendants' motion to dismiss in which they argued the adequacy 5 Docket Entry No. 3, ~ 9. 6 Motion to Dismiss of Defendants, Spring Branch Independent School District, Scott Williams and Jerry Hanson ( "SBISD Defendants' Motion to Dismiss"), Docket Entry No. 7. 7 Plaintiff's Response to Defendants Spring Branch Independent School District's, Scott Williams's, and Jerry Hanson's Motion to Dismiss, Docket Entry No. 9. 8 SBISD Defendants' Reply to Plaintiff's Response to Motion to Dismiss of Defendants Spring Branch Independent School District, Scott Williams and Jerry Hanson, Docket Entry No. 11. 9 Defendants', Carlos Pineda, Stephen Sanford, Eric Silliman, Donald Nowlin, City of Hedwig Village and City of Spring Valley Village, Motion to Dismiss Claims Asserted in Plaintiffs' Amended Complaint, Docket Entry No. 8. -5- of their amended complaint and asked for leave to amend if needed. 10 On October 2, 2018, these six defendants filed a reply in support of their motion to dismiss. 11 On March 20, 2019, the court entered a Memorandum Opinion and Order (Docket Entry No. 15) that granted the two motions to dismiss the claims that plaintiffs asserted in their Amended Complaint against six of the individual defendants (Hanson, Williams, Pineda, Sanford, Silliman, and Nowlin) and three of the municipal defendants (CHV, CSVV, and SBISD); denied the plaintiffs' requests for leave to amend; and concluded that the remaining claims asserted in Plaintiffs' Amended Complaint should be dismissed for want of prosecution under Federal Rule of Civil Procedure 4(m) because plaintiffs failed to file proof of service for any of the remaining defendants. 12 The court also entered a Final Judgment (Docket Entry No. 16) dismissing with prejudice the claims asserted against the defendants who had filed motions to dismiss, i.e., individual defendants Hanson, Williams, Pineda, Sanford, Silliman, and Nowlin, and municipal defendants CHC, CSVV, and SBISD; and 10 Plaintiff' s Response to Defendants Carlos Pineda, Stephen Sandford, Eric Silliman, Donald Nowlin, City of Hedwig Village, and City of Spring Valley Village Motion to Dismiss, Docket Entry No. 10. 11 Defendants', Carlos Pineda, Stephen Sanford, Eric Silliman, Donald Nowlin, City of Hedwig Village and City of Spring Valley Village, Reply to Plaintiffs' Response to Defendants' Motion to Dismiss Claims Asserted in Plaintiffs' Amended Complaint, Docket Entry No. 13. 12 Memorandum Opinion and Order, Docket Entry No. 15, pp. 3 6-3 8 . -6- dismissing without prejudice the claims asserted against the defendants for whom plaintiffs had not filed proof of service, i.e., City of Memorial Village ( "CMV"), Axon, City of Spring Valley Village Officers Trent B. Wood Joseph ("Wood") , Darrehshoori ( "Darrehshoori") and City of Hedwig Village Officers Nathan Frazier ("Frazier") and Richard Antonio (a/k/a Reginald) Hernandez ("Hernandez") , City of Memorial Village Sergeant Mark Stokes ("Stokes") , and Manny Aguilar ("Aguilar") . B. Analysis On April 17, 2019, plaintiffs filed their pending motion for a new trial Darrehshoori, (Docket Entry No. Wood, and 18) Hernandez Asserting that defendants were, in fact, served with process, 13 plaintiffs request the court grant the Motion for New Trial, as to Defendants dismissed for want of prosecution, and City of Spring Valley Village to allow facts to come to light after Darrehshoori appears and answers, and reinstate the case on the court's docket with the defendants who have been served, but have failed to appear and answer the suit. Plaintiff[s] further pray[] the court allow Plaintiffs an extension in time to continue to effectuate service on the remaining Defendants Axon, Mark Stokes, Trent Wood, Nathan Frazier, under FRCP Rule 4 (m) . 14 Plaintiffs argue that good cause exists for the inability to serve Axon, Mark Stokes, Trent Wood, Nathan Frazier, Spring Branch School District, Scott Williams, and Jerry Hanson in that efforts to serve each defendant was diligently made by 13 Plaintiffs' Motion for New Trial, Docket Entry No. 18, p. 2 (citing Docket Entry Nos. 1 and 17). 14 Id. at 4. -7- the Plaintiffs at the same time efforts to serve the defendants who were successfully served. As such, Plaintiff [s] respectfully request an extension of time to serve these remaining defendants and reinstate the case as to the served defendants. 15 Federal Rule of Civil Procedure 4(m) authorizes a district court to dismiss a complaint if not timely served, cause is shown for district court the must failure. extend unless good If good cause is the time for service Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). shown, of the process. "Good cause" normally requires some evidence of "'good faith on the part of the party seeking an enlargement for noncompliance United States, original) . 44 within the F. 3d 296, Inadvertence, usually do not suffice. [of time] time 299 mistake, Id. and some reasonable basis Lambert v. (emphasis in specified.'" (5th Cir. and 1995) ignorance of the rules Even if good cause does not exist, the court has discretion to extend the time to serve a defendant upon a showing that such relief is justified. Thompson, 91 F.3d at 21. As evidence that defendants Darrehshoori, Wood, and Hernandez were, in fact, served with process, plaintiffs cited Docket Entry Nos. 1 and 17. Docket Entry No. 1 is the Notice of Removal, which does not include any evidence that Darrehshoori, Wood, or Hernandez were served with process before removal. Instead, the Notice of Removal states that the following defendants were served, agreed to 15 Id. at 3-4. -8- removal, and removed this action within thirty days of having been Sanford, CHV, CSVV, Silliman, Nowlin, and Pineda. 16 served: The Notice of Removal also states that "[n]o other Defendant has been served with process in the state action." 17 Docket Entry No. 1 therefore does not provide evidence that defendants Darrehshoori, Wood, and Hernandez were served with process. Docket Entry No. 17 was filed on April 15, 2019, and consists of two documents service]" for Disclosure: titled "Officer/Authorized Plaintiffs' Original Petition Person Return and Request [of for (1) Officer/Authorized Person Return [of service] for Donald Nowlin dated August 10, 2018; 18 and (2) Officer/Authorized Person Return [of service] for Joseph Darrehshoori dated August 24, 2018. 19 17-1 Neither Docket Entry No. 1 nor Docket Entry Nos. 17 and contain any evidence that plaintiffs ever attempted perfected service of process on defendants Wood or Hernandez. return of service filed for Joseph Darrehshoori shows, or The however, that the Citation was issued by the clerk of the state court on June 25, 2018, less than one month after this action was filed in state court on May 31, 2018, and one month before this action was removed on July 25, 2018. The return of service also shows that Darrehshoori was served with the state court Citation and Petition 16 Notice of Removal, Docket Entry No. 1, p. 2 17 Id. 18 Docket Entry No. 17. 19 Docket Entry No. 17-1. ~ 6. -9- ~~ 3-5. on August 24, 2018, almost one month after this action was removed from state court and two days after plaintiffs filed their amended complaint (Docket Entry No. 6) on August 22, 2018. Plaintiffs have neither offered any explanation for their failure to timely provide a return of service for Darrehshoori to the court, nor have they argued that the return of service is newly discovered evidence or that it shows Darrehshoori has been properly Indeed, the evidence before served in compliance with Rule 4(m). the court indicates that service of the state court citation and petition on Darrehshoori on August 24, 2018, was not proper because by that date this action had not only been removed to federal court but plaintiffs plaintiffs fail had filed an amended complaint. Moreover, to offer any evidence showing that the amended complaint was ever delivered to Darreshoori. Once a case is removed, Rules of Civil Procedure. it becomes subject to the Federal 28 U.S.C. § 1446; Fed. R. Civ. P. 81(c); Micromedia v. Automated Broadcast Controls, 799 F.2d 230, 233 (5th Cir. 1986). been served, In a removed case where one of the defendants has not "process or service may be completed or new process issued in the same manner as in cases originally filed in such district court." 28 U.S.C. § 1448. A split in authority exists in this district as to whether a plaintiff in a removed action may "complete" service on a defendant by using process obtained from the state court before the removal. Compare Alexander Technologies, Inc. v. International Frontier Forwarders, Inc., No. Civ. A. H-05- -10- 2598, 2006 WL 3694517, at *1 (S.D. Tex. Dec. 14, 2006) (holding that service of state court citation served after removal was not sufficient to perfect service of process), with Minter v. Showcase Systems, Inc., 641 F. Supp. 2d 597, 599-602 (S.D. Miss. 2009) (holding that "the completion of state service of process following removal to [federal] court" constitutes "proper service of process pursuant to 28 U.S.C. 1448"). § The only circuit court opinion that appears to have addressed the issue held that where the defendant has never been put on notice of the state court proceeding prior to removal [,] the federal court cannot "complete" the state process by permitting it to be served after removal; rather[,] the federal court must issue new process pursuant to Rule 4 of the Federal Rules of Civil Procedure. Beecher v. Wallace, 381 F.2d 372, 373 (9th Cir. 1967) case law shows a Because the split of authority on the issue of whether a plaintiff in a removed action may "complete" service on a defendant by using process obtained from the state court before the removal, the court concludes that plaintiffs have failed to establish that the court's dismissal of the claims asserted against Darrehshoori constitutes a manifest error of law that entitles plaintiffs to Rule 59(e) relief. Because plaintiffs have failed to show that the return of service for Darrehshoori filed on April 15, 2019, constitutes new evidence, or that Darrehshoori was been properly served with process such that the failure to reopen this action with respect to him would constitute a manifest error of law, the court concludes that plaintiffs have failed to establish that they are entitled to -11- Rule 59(e) relief. Accordingly, Plaintiffs' Motion for New Trial with respect to Darrehshoori will be denied. Because the record before the court contains no evidence that plaintiffs made any attempt to perfect service of process or sought an extension of time to perfect service of process on any of the other defendants who were named but not before this action was dismissed, served in this action and because plaintiffs have failed to show that good cause existed for their failure to seek service of process on those defendants, Plaintiffs' Motion for New Trial with respect to them will be denied. III. Conclusions and Order For the reasons stated in New Trial, § II, above, Plaintiffs' Motion for to Reinstate and Reopen Case (Docket Entry No. 18) is DENIED. SIGNED at Houston, Texas, on this the 25th day of April, 2019. LAKE UNITED STATES DISTRICT JUDGE -12-
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