CIVIL ACTION NO. 3:03-CV-0492-K.
February 27, 2004
Before the Court are Plaintiff's Motion to Reconsider and Defendant's Motion to Dismiss. Having considered the merits of each motion, and for the reasons stated below, Plaintiff's motion is GRANTED and Defendant's motion is DENIED.
The Court's December 29, 2003 Order granting Defendant's Motion to Dismiss for insufficient service of process was based on the argument that Plaintiff failed to use a proper process server in effecting service on the Defendant. However, after further reviewing the pleadings and evidence in this case, the Court determines that service of process was sufficient.
Plaintiff claims that an attorney, Mr. Don Dawes, properly effected service of process on Defendant Wilmer-Hutchins Independent School District ("WHISD") through its Superintendent, Dr. Charles Matthews, on March 11, 2003. Defendant does not deny that Mr. Dawes served Dr. Matthews on that date. Instead, Defendant argues only that Mr. Dawes was not authorized by law to effect service of process on Defendant.
Federal Rule of Civil Procedure 4(j)(2) provides that when a state, municipal corporation, or other governmental organization is sued, service shall be effected by delivering a copy of the summons and complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant. As Plaintiff's suit is against a school district, Rule 4(j)(2) applies in this case. See Hander v. San Jacinto Junior College, 519 F.2d 273, 279-80 (5th Cir. 1985) (quoting Love v. City of Dallas, 40 S.W.2d 20, 26 (Tex. 1931) (holding that school districts are local public corporations of the same general character as municipal corporations). Federal Rule of Civil Procedure 4(c)(2) states that service may be effected by anyone who is not a party to the case and is at least 18 years of age.
When a defendant challenges the validity of service of process, the serving party bears the burden of showing its validity. See Systems Signs Supplies v. U.S. Dept. of Justice, Washington, D.C., 903 F.2d 1011, 1013 (5th Cir. 1990). Therefore, Plaintiff has the burden of establishing that service on Mr. Matthews by Mr. Dawes was proper. Under Texas law, the superintendent of a school district is the chief executive officer of the school district. See Tex. Educ. Code Ann. § 11.021(a). In support of her motion, Plaintiff filed the affidavit of Mr. Dawes. In the affidavit, Mr. Dawes testifies that he is not a party to the case and is over 18 years of age. Defendants do not dispute this evidence. Additionally, Defendants also do not dispute that Mr. Dawes served Dr. Williams, the Superintendent of WHISD, with process. Defendant's only argument is that the service of process failed to comport with state law under 4(j)(2).
However, Mr. Matthews, as Superintendent of the WHISD, is its chief executive officer. Because service was effected on the chief executive officer of Defendant, state law does not come into play. See Herring v. Dallas County Schools and Dallas County Board of School Trustees, 2000 WL 370623, *2 (N.D.Tex. 2000) (Solis, J.) (holding that when determining whether service of process is proper under Rule 4(j)(2), the court only considers state law if service was not effected on the defendant's chief executive officer). Therefore, Defendant was properly served with process under Rule 4(j)(2) by someone qualified to effect service of process under Rule 4(c)(2), and Plaintiff has met her burden of establishing the validity of service of process in this case. Accordingly, Plaintiff's motion is GRANTED, and Defendant's Motion to Dismiss is DENIED.