Pena v. Dall. Police Ass'n

LEROY PENA, Plaintiff, v. DALLAS POLICE ASSOCIATION and CITY OF DALLAS, Defendants.

Civil Action No. 3:22-CV-0987-N-BH

United States District Court, N.D. Texas, Dallas Division

January 17, 2023

Referred to U.S. Magistrate Judge^[1]

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

Before the Court for recommendation is Defendant Dallas Police Association's Motion to Dismiss Pursuant to Federal Rules of Civil Procedure, Rule 12(b)(5), 12(b)(2) (Insufficient Service, Lack of Personal Jurisdiction) or, Alternatively Rule 12(b)(6) (Failure to State a Claim Upon Which Relief Can Be Granted), filed August 3, 2022 (doc. 7). Based on the relevant filings and applicable law, the motion to dismiss should be GRANTED.

I. BACKGROUND

Leroy Pena (Plaintiff) sues the Dallas Police Association (Association) and the City of Dallas (City) (collectively Defendants), alleging discrimination, harassment, and retaliation under Title VII of the Civil Rights Act of 1964 (Title VII) and 42 U.S.C. §§ 1981 and 1983. (doc 3.) He seeks equitable and injunctive relief, compensatory and punitive damages, front pay, back pay, lost fringe benefits, attorney's fees, court costs, and pre-judgment and post-judgment interest. (Id. at 13.)^[2]

On or about July 7, 2000, Plaintiff began working as a police officer in the Dallas Police Department. (Id. at 3.) Throughout his employment with the City, he was also a paying member of Association, a labor organization with “the stated goal and mission . . . to assist it's[sic] officers with legal issues.” (Id. at 3, 9.) Plaintiff alleges that soon after a certain officer became his supervisor, a “pattern of discrimination and harassment began.” (Id.) On “numerous occasions,” Plaintiff made formal and informal complaints about his supervisor to “multiple levels of the City's Police Department,” but the harassing comments and discriminatory behavior increased and “he immediately became the target of retaliation from the department.” (Id. at 4.) Plaintiff also made several requests to Association seeking to file a union grievance and legal assistance for his discrimination, harassment, and retaliation complaint, but his requests were denied. (Id. at 5-6.) His union representative told him that “even though you're in the right sometimes you have to get f***ed by the city.” (Id. at 6.) Plaintiff alleges that Association refused his grievance representation and legal assistance “based upon his race, sex, sex orientation, color and national origin” and in retaliation for filing his complaints against the City. (Id.)

Plaintiff filed an EEOC complaint against Defendants on February 7, 2020, and he received a right to sue letter on February 2, 2022. (Id. at 2, 6.) He filed this lawsuit on May 5, 2022. (Id. at 1.) On August 3, 2022, Association moved to dismiss Plaintiff's claims against it under Rules 12(b)(2), 12(b)(5), and 12(b)(6). (doc. 7.) Plaintiff did not respond or seek a continuance of his deadline to respond to Association's motion, despite specifically seeking and obtaining a continuance of his deadline to respond to the City's motion to dismiss. (See docs. 16, 17.)

II. RULES 12(b)(2) AND 12(b)(5)

Association moves to dismiss Plaintiff's complaint against it under Rules 12(b)(2) and 12(b)(5) for lack of personal jurisdiction and for insufficient service of process. (doc. 8 at 1.)

Rule 12(b)(2) allows for dismissal of an action when a court lacks personal jurisdiction over a defendant. Fed.R.Civ.P. 12(b)(2). Rule 12(b)(5) permits a challenge to the method of service attempted by the plaintiff, or the lack of delivery of the summons and complaint. Fed.R.Civ.P. 12(b)(5); Coleman v. Bank of New York Mellon, 969 F.Supp.2d 736, 745 (N.D. Tex. 2013). “In the absence of service of process (or waiver of service by the defendant),” courts ordinarily may not exercise personal jurisdiction over defendants. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). The plaintiff has the burden to ensure that the defendants are properly served with a summons and a copy of the complaint. Fed.R.Civ.P. 4(c)(1); Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992).

For service to be effective, a plaintiff must comply with the requirements of Rule 4. Fed.R.Civ.P. 4; Bowling v. Childress-Herres, No. 4:18-CV-610-ALM-CAN, 2019 WL 4463450, at *6 (E.D. Tex. Aug. 7, 2019), adopted by 2019 WL 4451122 (E.D. Tex. Sept. 17, 2019). This includes the requirement in Rule 4(m) for service within 90 days of the filing of the lawsuit, although the time for service may be extended upon a showing of good cause. Fed.R.Civ.P. 4(m); Bowling, 2019 WL 4463450, at *6. “A litigant's pro se status neither excuses his failure to effect service nor excuses him for lack of knowledge of the Rules of Civil Procedure.” Thrasher v. City of Amarillo, 709 F.3d 509, 512 (5th Cir. 2013) (citations omitted); see also Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) (same). District courts have “broad discretion in deciding whether to dismiss an action for ineffective service of process.” Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir. 1994) (citing George v. U.S. Dep't of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986)).

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. See, e.g., Williams v. Kroger Texas, L.P., No. 3:16-CV-1631-L, 2016 WL 5870976, at *1 (N.D. Tex. Oct. 6, 2016) (dismissing a case under Rule 12(b)(5) “[a]fter considering the Motion, pleadings, record in this case, and applicable law”); see also Trombetta v. Novocin, No. 18-CV-993 (RA), 2020 WL 7053301, at *2 (S.D.N.Y. Nov. 24, 2020) (holding a court may look at “affidavits and supporting materials” in considering a motion to dismiss under Rule 12(b)(5)) (citation omitted); Cutler Assocs., Inc. v. Palace Constr., LLC, 132 F.Supp.3d 191, 194 (D. Mass. 2015) (“[T]he Court is permitted to look beyond the pleadings and may consider affidavits and other documents to determine whether process was properly served.”) (citation omitted). Here, Plaintiff filed an email confirmation from the process server stating that the summons and complaint were received by “Liz at Dallas Police Association” as his proof of service. (See doc. 18.) Association attached to its motion the declaration of Elizabeth Klusman, which describes her role as the receptionist at Association, and a screenshot from the Texas Secretary of State, which shows that Association as a registered domestic nonprofit corporation. (See doc. 9.) These documents may be properly considered.

Under the Federal Rules of Civil Procedure, a nonprofit corporation is properly served by either “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” or 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.” See Fed.R.Civ.P. 4(e)(1), 4(h)(1). In Texas, service of process may be made on the nonprofit corporation's registered agent, president, or any vice president or committee member “authorized to perform the chief executive function of the corporation.” See Tex. Bus. Orgs. Code §§ 5.201, 5.255(1), (5).^[3] Proof of service must be made to the court by the server's affidavit, unless service is made “by a United States marshal or deputy marshal.” Fed.R.Civ.P. 4(1)(1); Webb, 2017 WL 4082445, at *2. A valid return complies with Fed.R.Civ.P. 4(1), which requires a “server's affidavit” except when service was effected by a United States marshal or deputy marshal. That exception does not apply in this case, and no filed return of service has been completed or signed.

Plaintiff provides an email confirmation from the process server stating that the summons and complaint had been delivered to Association's office and received by “Liz” on July 15, 2022. (doc. 18 at 2-3.) He has not shown that “Liz” is a registered agent, president, or vice president of Association, or a person authorized to perform the chief executive functions of Association. Plaintiff's attempted service on Association is therefore insufficient. See Fed.R.Civ.P. 4(h)(1); Tex. Bus. Orgs. Code §§ 5.201, 5.255(1), (5).

Additionally, Plaintiff's proffered proof of service is not labeled as an affidavit and does not function as an affidavit because “it was not sworn or ‘made under oath before an authorized officer,'” and it “does not qualify as an unsworn declaration because it does not state that it was signed ‘under penalty of perjury that the foregoing is true and correct.'” Webb, 2017 WL 4082445, at *2 (quoting Cole v. Shinseki, No. 12-2969-STA-tmp, 2013 WL 2289257, at *3 (W.D. Tenn. May 23, 2013)). His proof of service is therefore not proper under Rule 4(1)(1) “because it was not made ‘by the server's affidavit.'” Id. (finding proof of service was not proper because plaintiff failed to comply with Rule 4(1)(1)).

Rule 4(m) provides that “[i]f a defendant is not served within 90 days after the complaint is filed, the court ... must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m). When the 90-day deadline has not expired, the court may dismiss the action without prejudice for insufficient service of process so the plaintiff may effect proper service. See Grant-Brooks v. Nationscredit Home Equity Servs. Corp., No. 3:01-CV-2327, 2002 WL 424566, at *5 (N.D. Tex. Mar. 15, 2002) (under prior version of Rule 4(m)). Alternatively, the court has discretion to quash service...