IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

YOUNES LAFDI, §

PLAINTIFF, §

 §

V. § CASE NO. 3:22-CV-922-S-BK

 §

DAVID HOLMAN, ET AL., §

DEFENDANTS. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case was referred to the 

undersigned United States magistrate judge for pretrial management. Doc. 1. Now before the 

Court is Defendants David Holman, Officer Smith, and City of Forney’s 12(b)(5) Motion to 

Dismiss for Insufficient Process and Brief in Support. Doc. 10. Upon review, Defendants’ 

motion should be GRANTED IN PART to the extent stated herein.

I. BACKGROUND

On April 26, 2022, Plaintiff filed this pro se civil action against the City of Forney (the 

“City”) and City police officers Holman and Smith (the “Officers”), alleging civil rights 

violations pursuant to 42 U.S.C. § 1983. Doc. 3 at 1. On June 29, 2022, Plaintiff attempted to

serve Defendants by leaving summonses with the City Manager’s executive assistant and a 

Forney Police Department (“FPD”) records technician. Doc. 10 at 2. In response, Defendants 

move to dismiss Plaintiff’s claims for insufficient service of process under Rule 12(b)(5) of the 

Federal Rules of Civil Procedure. Doc. 10.

Case 3:22-cv-00922-S-BK Document 15 Filed 01/10/23 Page 1 of 6 PageID 57
2

II. APPLICABLE LAW

Without proper service of process, the court lacks personal jurisdiction over a defendant. 

Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). Rule 12(b)(5) 

permits a challenge to the method of service attempted by a plaintiff. See FED. R. CIV.

P. 12(b)(5). “A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency of the 

service of process.” Quinn v. Miller, 470 F. App’x. 321, 323 (5th Cir. 2012). For service to be 

effective, plaintiffs are expected to comply with the mandates of Federal Rule of Civil Procedure 

4. See Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (finding that pro se litigants are not

exempt from compliance with the rules of service).

Rule 4(m) permits a court to either dismiss a suit without prejudice “or order that service 

be made within a specified time” if the plaintiff fails to properly serve a defendant within 90 

days of filing a complaint. FED. R. CIV. P. 4(m). “But if the plaintiff shows good cause for the 

failure, the court must extend the time for service for an appropriate period.” Id. “A pro se 

plaintiff bears the burden of proving the validity of service or good cause for failure to effect 

timely service.” Lawson v. Jason Pharms., LLC, No. 3:17-CV-2648-L-BT, 2018 WL 4103434,

at *1 (N.D. Tex. Aug. 13, 2018) (Rutherford, J.).

III. ANALYSIS

Defendants argue that Plaintiff failed to satisfy Rule 4’s service requirements because the 

process server left the documents with the City Manager’s executive assistant and an FPD

records technician rather than serving Defendants personally or through the proper 

representative. Doc. 10 at 2. Plaintiff avers the service was sufficient, as it provided Defendants 

with actual notice of the suit and was made “in good faith.” Doc. 13 at 3-4. If the Court finds 

Case 3:22-cv-00922-S-BK Document 15 Filed 01/10/23 Page 2 of 6 PageID 58
3

that the service of process was not properly executed, however, Plaintiff requests another 

opportunity to serve Defendants. Doc. 13 at 4. Defendants oppose this request.1 Doc. 14 at 4. 

A. Validity of Service

Plaintiff does not meet his burden of showing he validly served Defendants. See Sys. 

Signs Supplies v. U.S. Dep’t of Just., Wash., D.C., 903 F.2d 1011, 1013 (5th Cir. 1990) (finding 

that “[w]hen service of process is challenged, the serving party bears the burden of proving its 

validity or good cause for failure to effect timely service.”). That Plaintiff’s method of service 

provided Defendants with actual notice does not establish that service was valid. See Way v. 

Mueller Brass Co., 840 F.2d 303, 306 (5th Cir. 1988)) (“The defendant’s actual notice of the 

litigation . . . is insufficient to satisfy Rule 4’s requirements.”).

A state, a municipal corporation, or any other state-created governmental 

organization that is subject to suit must be served by: (A) delivering a copy of the 

summons and of the complaint to its chief executive officer; or (B) serving a copy 

of each in the manner prescribed by that state’s law for serving a summons or like 

process on such a defendant.

FED. R. CIV. P. 4(j)(2). Under Texas law, “in a suit against an incorporated city . . . citation may 

be served on the mayor, clerk, secretary, or treasurer.” TEX. CIV. PRAC. & REM. CODE § 

17.024(b). 

Here, Plaintiff’s service on the City Manager’s executive assistant and a records 

technician, rather than the City’s chief executive officer or other person holding a position listed 

in section 17.024(b), fails to comply with Rule 4(j)(2). See FED. R. CIV. P. 4(j)(2); TEX. CIV.

1 Although in their reply, Defendants assert their opposition to Plaintiff receiving “more 

opportunity at service,” Doc. 14 at 4, in the motion sub judice, Defendants requested “the Court 

dismiss Plaintiff’s claims or, in the alternative, order . . . Plaintiff to properly and timely 

effectuate service of process as to each particular Defendant.” Doc. 10 at 4 (emphasis added).

Case 3:22-cv-00922-S-BK Document 15 Filed 01/10/23 Page 3 of 6 PageID 59
4

PRAC. & REM. CODE § 17.024(b). As such, Plaintiff’s service of process on the City was 

insufficient. 

As for service of process over the Officers, the Federal Rules of Civil Procedure provide 

that

an individual . . . may be served in a judicial district of the United States by 

(1) 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; or (2) doing any of the following: (A) delivering a copy of the summons 

and of the complaint to the individual personally; (B) leaving a copy of each at 

the individual’s dwelling or usual place of abode with someone of suitable age 

and discretion who resides there; or (C) delivering a copy of each to an agent 

authorized by appointment or by law to receive service of process.

FED. R. CIV. P. 4(e). Under Texas law, “the citation must be served by: (1) delivering to the 

defendant, in person, a copy of the citation, showing the delivery date, and of the petition; or 

(2) mailing to the defendant by registered or certified mail, return receipt requested, a copy of the 

citation and of the petition.” TEX. R. CIV. P. 106(a). 

In this instance Plaintiff did not satisfy Rule 4(e), as he attempted to effectuate service at 

the Officers’ workplace on a person who was not authorized to receive service. See FED. R. CIV.

P. 4(e). Accordingly, Plaintiff’s service of process on the Officers was insufficient. Therefore, 

Plaintiff fails to meet his burden to show he validly served Defendants. 

B. Good Cause for Failure to Validly Serve

When a district court considers a request to extend time for service, it must first 

determine whether good cause exists. Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). “If 

good cause is present, the district court must extend time for service. If good cause does not 

exist, the court may, in its discretion, decide whether to dismiss the case without prejudice or 

extend time for service.” Id. (emphasis in original).

Case 3:22-cv-00922-S-BK Document 15 Filed 01/10/23 Page 4 of 6 PageID 60
5

Good cause under Rule 4(m) requires at least a showing of excusable neglect, in “which 

simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice . . . 

.” See Lambert v. United States, 44 F.3d 296, 299 (5th Cir. 1995) (stating that Rule 4(m) 

normally requires “some showing of good faith ‘of the party seeking enlargement and some 

reasonable basis for noncompliance within the time specified.’”); see Kersh v. Derozier, 851

F.2d 1509, 1512 (5th Cir. 1988) (finding that a plaintiff's pro se status and ignorance of the law 

does not constitute good cause for failure to effect service in compliance with the rules).

In this case, Plaintiff has not demonstrated good cause for his failure to properly serve 

Defendants within 90 days of filing his complaint by arguing, in toto, that he “believes that the 

service was accomplished in good faith and fairness and in consideration of the Fifth Circuit’s 

broad constru[ction] of the provisions of Rule 4.” Doc. 13 at 4. 

Notwithstanding Plaintiff’s failure to demonstrate good cause and Defendants’ equivocal 

opposition to Plaintiff having another opportunity to effect service, the Court has not previously 

held that Plaintiff’s attempts at service of process were deficient or extended Plaintiff’s deadline 

to effectuate proper service. Cf. Styles v. McDonalds Rest., No. 4:17-CV-291-ALM CAN, 2019 

WL 2266636, at *5 (E.D. Tex. Jan. 28, 2019) (granting the defendant’s Rule 12(b)(5) motion to 

dismiss as the court previously extended the plaintiff’s deadline to serve and enumerated reasons 

why her previous service attempt was ineffective); Gartin, 289 Fed. App’x at 691-94 (denying 

the plaintiff’s extension to serve due to his “clear pattern of delay and neglect” in serving process 

despite prior warnings of dismissal). Thus, in its discretion, the Court should grant Plaintiff’s

request to extend the to properly effectuate service. See Thompson, 91 F.3d at 21.

Case 3:22-cv-00922-S-BK Document 15 Filed 01/10/23 Page 5 of 6 PageID 61
6

IV.CONCLUSION

For the foregoing reasons, Defendants David Holman, Officer Smith, and City of 

Forney’s 12(b)(5) Motion to Dismiss for Insufficient Process, Doc. 10, should be GRANTED IN 

PART. The Court should hold in abeyance its ruling on the motion and extend the period for 

Plaintiff to properly effectuate service of process on Defendants for 21 days from the date of its 

acceptance of this recommendation. In the event Plaintiff fails to properly serve any Defendant

by that deadline, however, at Defendants’ re-urging, this case should be DISMISSED 

WITHOUT PREJUDICE as to the Defendant or Defendants not properly served. 

SO RECOMMENDED on January 10, 2023.

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided 

by law. Any party who objects to any part of this report 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). An objection must identify the finding or recommendation to which objection is 

made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation 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), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to 

file objections to 14 days).

Case 3:22-cv-00922-S-BK Document 15 Filed 01/10/23 Page 6 of 6 PageID 62