Posted in: commodities-and-mining
RE: Frontera Archive7 Sep 2019 09:35
8. On August 19 and 22, 2019, Ms. Williams attempted service at the Residence, but
both gates at the driveway were closed. She noted lights were on inside the home, but she could
not access the property. See Ex. “A.”
9. Specifically, the process server attempted service at the Residence on August 12,
2019, August 15, 2019, August 17, 2019, August 19, 2019, and August 22, 2019. During the
service attempts, the process server noted that the lights were on inside the Residence, but the
gates were closed preventing access to the front door or no one would answer the door after
ringing the doorbell.
10. Despite Ms. Williams confirming that she had the correct address for Nicandros
at his Residence, service has been unsuccessful because Nicandros has not been home and/or may
be actively attempting to avoid service.
III. ARGUMENTS AND AUTHORITIES
11. Pursuant to Rule 4 of the Federal Rules of Civil Procedure, Plaintiff has
unsuccessfully attempted to serve Nicandros personally on six (6) separate occasions. Rule
4(e)(1) permits service on an individual “pursuant to the law of the state in which the district is
located.” FED. R. CIV. P. 4(e)(1). Texas Rule of Civil Procedure 106(a) prescribes the general
method of service of process via personal delivery. TEX. R. CIV. P. 106(a)(1). Where attempts at
personal service have been ineffective, Texas Rule of Civil Procedure 106(b) provides that upon
motion supported by an affidavit stating the location of the defendant’s usual place of business or
usual place of abode, and specifically showing that service has been attempted under Rule
106(a)(1) but has not been successful, the court may authorize service in a manner that has been
shown will be reasonably effective to give the defendant notice of the suit. TEX.R.CIV. P. 106(b);
see e.g., Whitney Nat’l Bank v. Air Ambulance by B&C Flight Mgmt., No. H-04-2220, 2006 U.S.
Dist. LEXIS 36441, at *2 (S.D. Tex. June 2, 2006) (Rosenthal, J.) (quoting Nickerson v. Texas,
35 F. Supp. 2d 512, 517 (E.D. Tex. 1998) (“According to Rule 106, substituted service, or service
to one person, for example, as an agent of another, is valid as long as a court, upon motion,
authorizes it.”).
12. The purpose of substituted service is to allow a plaintiff to effect service where
proof of actual notice under Texas Rule of Civil Procedure 106(a) is impractical and standard
means of service have not been successful. State Farm Fire and Cas. Co. v. Costley, 868 S.W.2d
298, 298 (Tex. 1993) (per curiam). A party need only show via affidavit that attempts at personal
service under Rule 106(a) have failed. Id. at 299 n.2. Here, Plaintiff has made numerous
unsuccessful attempts to personally serve Nicandros at his place of abode—the Residence. As is
demonstrated by the evidence before this Honorable Court, including the affidavit of Plaintiff’s