IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

KEVIN J. DAVIS, § 

 § 

Plaintiff, § 

§ 

V. § No. 3:22-cv-1337-L-BN 

§ 

HUBGROUP, § 

§ 

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Kevin J. Davis filed a pro se complaint appearing to allege a claim in 

the context of employment that consists of a Determination and Notice of Rights 

issued by the U.S. Equal Employment Opportunity Commission on March 24, 2022 

and a Civil Cover Sheet indicating a cause of “falsely accused of stealing/terminated 

for retaliation.” Dkt. No. 3. 

Because Davis also moved for leave to proceed in forma pauperis, United States 

District Judge Sam A. Lindsay referred this lawsuit to the undersigned United States 

magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing 

order of reference. 

As ordered, Davis filed an amended complaint and paid the filing fee. See Dkt. 

Nos. 7, 8, 10, 11. By paying the filing fee, he assumed the responsibility to properly 

serve the named defendant with a summons and a complaint in accordance with 

Federal Rule of Civil Procedure 4. See, e.g., FED. R. CIV. P. 4(h) (setting forth 

procedures for serving a corporation, partnership, or association); see also FED. R. CIV.

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P. 4(d) (regarding a defendant’s waiving service). 

The Court therefore entered an order on August 17, 2022, to inform Davis of 

this obligation and to advise him 

that, if proper service is not made – and shown to the Court through 

filed proofs of service or filed waivers of service – before the 90th day 

after his filing of this action (on June 21, 2022) that is not a Saturday, 

Sunday, or legal holiday – which, here, will be September 19, 2022 – 

this case is subject to dismissal without prejudice unless he shows both 

(1) good cause for his failure to timely and properly effect service and (2) 

good cause for the Court to extend the time for service for an appropriate 

period. See FED. R. CIV. P. 4(m); see also FED. R. CIV. P. 41(b) (providing 

for dismissal, with or without prejudice, for failure to prosecute and obey 

court orders). 

Dkt. No. 13. 

On September 7, 2022, Davis filed two affidavits that seem to reflect that the 

complaint was mailed to Mesquite, Texas and Oak Brook, Illinois (presumably to the 

defendant). See Dkt. No. 15. 

Federal Rule of Civil Procedure 4(m) authorizes a district court to, after 

providing notice, dismiss a case sua sponte without prejudice for a plaintiff’s failure 

to effectuate service on a defendant within 90 days of filing the complaint. See, e.g., 

Davis v. Bank of Am., NA, No. 3:12-cv-1036-M-BF, 2012 WL 4795591 (N.D. Tex. Oct. 

9, 2012). 

While “[a] pro se plaintiff is entitled to notice before a district court dismisses 

an action, sua sponte, for failure to timely serve the defendants under Rule 4(m),” 

Drgac v. Treon, No. H-07-4283, 2008 WL 4746984, at *1 (S.D. Tex. Oct. 27, 2008) 

(citing Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996)), “[a] plaintiff’s 

pro se status and ignorance of the law do not constitute cause for his failure to effect 

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service in compliance with the rules,” id. (citing Kersh v. Derozier, 851 F.2d 1509, 

1512 (5th Cir. 1988)). 

That is, “a litigant’s pro se status does not excuse failure to effect proper 

service,” Zellmar v. Ricks, No. 6:17cv386, 2021 WL 805154, at *2 (E.D. Tex. Feb. 2, 

2021) (citing Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th 

Cir. 1990)), rec. adopted, 2021 WL 796133 (E.D. Tex. Mar. 2, 2021), as “[t]he party 

effecting service has the burden of showing the validity of service,” Walker v. Forte, 

No. 5:19cv158, 2021 WL 6930957, at *1 (E.D. Tex. Nov. 9, 2021) (citing Sys. Signs 

Supplies, 903 F.2d at 1013; Matter of Arbitration Between Trans Chem. Ltd. v. China 

Nat. Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 298 (S.D. Tex. 1997), op. adopted, 

161 F.3d 314 (5th Cir. 1998)), rec. adopted, 2022 WL 468031 (E.D. Tex. Feb. 15, 2022); 

see also Savage v. Reliance Mortg. Corp., No. 6:17-cv-00053-RP-JCM, 2018 WL 

4702535, at *3 (W.D. Tex. June 7, 2018) (“[T]he right of self-representation does not 

exempt a party from compliance with the relevant rules of civil procedure.” (citing 

Kersh, 851 F.2d at 1512)), rec. accepted, 2018 WL 4688785 (W.D. Tex. Aug. 27, 2018). 

And “Rule 4 requires only that the court notify a claimant that dismissal is 

impending for lack of timely service.” Roberts v. U.S. Dep’t of Army, 275 F.3d 42, 2001 

WL 1223674, at *1 (5th Cir. Sept. 26, 2001) (per curiam) (citing FED. R. CIV. P. 4(m)). 

The court need not also guide a plaintiff “on how to effect proper service.” Id.

Here, the Court not only provided Davis the required notice but also directed 

him to the proper provisions of Rule 4. See Dkt. No. 13. Yet, Davis has failed to effect 

proper service in the time allowed by the relevant rules. 

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His affidavits indicate that he mailed the complaint to the defendant. See Dkt. 

No. 15. But “[s]ervice by mail is not expressly permitted by Federal Rule of Civil 

Procedure 4.” Caceres-Mejia v. Watson, 718 F. App’x 307, 309 (5th Cir. 2018) (per 

curiam); see also Gilliam v. Cnty. of Tarrant, 94 F. App’x 230, 230 (5th Cir. 2004) (per 

curiam) (noting that “the use of certified mail is not sufficient to constitute ‘delivering’ 

under Rule 4” (citing Peters v. United States, 9 F.3d 344, 345 (5th Cir. 1993))). 

Still, “an individual may be served 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 made.’” Caceres-Mejia, 718 F. App’x at 309 

(quoting FED. R. CIV. P. 4(e)(1)); see also FED. R. CIV. P. 4(h)(1)(A). 

And Texas law does contemplate the use of mail – more specifically, Texas law 

provides for service by registered or certified mail, with return receipt requested. See

TEX. R. CIV. P. 106(a)(2) (“Unless the citation or an order of the court otherwise 

directs, the citation shall be served by any person authorized by Rule 103 by mailing 

to the defendant by registered or certified mail, return receipt requested, a true copy 

of the citation with a copy of the petition attached thereto.”); see also Cross v. Grand 

Prairie, No. 3:96-cv-446-P, 1998 WL 133143, at *6 (N.D. Tex. Mar. 17, 1998) 

(“Although Rule 4(e)(1) authorizes service pursuant to Texas law, absent prior 

authorization by the trial court, the only methods of service permitted in Texas are 

service in person or by registered mail.” (citing TEX. R. CIV. P. 106(a))). 

And, as to persons authorized to serve process under Texas law, Texas Rule of 

Civil Procedure 103 provides “that a sheriff, a constable, or any person authorized by 

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law or by written order of the court not less than 18 years of age may serve any 

process, ‘[b]ut no person who is a party to or interested in the outcome of the suit may 

serve any process in that suit.’” Blanton-Bey v. Carrell, No. H-09-3697, 2010 WL 

1337740, at *2 (S.D. Tex. Mar. 26, 2010) (quoting TEX. R. CIV. P. 103; emphasis 

provided by Blanton-Bey); see also Lucky v. Haynes, No. 3:12-cv-2609-B, 2013 WL 

3054032, at *2 (N.D. Tex. June 18, 2013) (“Upon amendment of the relevant [Texas] 

rules, federal district courts in Texas interpreting Texas Rule 103 have found that 

the clerk of the court or one of the three authorized persons in Rule 103 can serve 

process by certified mail.” (citations omitted)). 

Texas law also requires that particular information be included in the return 

of service, such as the address served and the date of service or attempted service, see

TEX. R. CIV. P. 107(b), and “when certified mail has been selected as the method of 

service, Texas law further requires that the return receipt be signed by the 

addressee,” Lucky, 2013 WL 3054032, at *3 (citing TEX. R. CIV. P. 107(c); Keeton v. 

Carrasco, 53 S.W.3d 13, 19 (Tex. App. – San Antonio 2001, pet. denied)). 

In sum, the proof filed by Davis – reflecting just that he mailed the complaint 

to Mesquite and to Oak Brook, Illinois – indicates that he failed to properly effect 

service under either the Federal Rules of Civil Procedure or Texas law. And it is now 

more than one month past the deadline to do so. The Court should therefore dismiss 

this lawsuit without prejudice under Rule 4(m). 

But, affording some leniency, given his pro se status, the time to file objections 

to this recommendation (explained below) provides Davis the opportunity to show, in 

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writing, both (1) good cause for the failure to timely and properly effect service and 

(2) good cause for the Court to extend the time for service. 

Recommendation

The Court should dismiss this action without prejudice under Federal Rules of 

Civil Procedure 4(m) unless Davis shows good cause not to do so. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: October 20, 2022 

 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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