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 

After receiving an extension of time under Federal Rule of Civil Procedure 

4(m), because Plaintiff Kevin J. Davis still has not proven that proper service has 

been effected, the undersigned enters these findings of fact, conclusions of law, and 

recommendation that the Court should dismiss this action without prejudice under 

Federal Rules of Civil Procedure 4(m) and 41(b). 

Applicable Background 

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 

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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.

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 reflect that the complaint 

was mailed to Mesquite, Texas and Oak Brook, Illinois (presumably to the defendant). 

See Dkt. No. 15. 

The undersigned then entered findings of fact and conclusions of law 

recommending that the Court dismiss this action without prejudice under Federal 

Rules of Civil Procedure 4(m) unless Davis shows good cause not to do so [Dkt. No. 

16] (the First Rule 4(m) FCR). 

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Davis objected, requesting that the Court appoint him counsel to allow him to 

properly serve the defendant. See Dkt. No. 17. 

And, on November 2, 2022, the Court construed this objection as requesting 

leave to extend the time for service under Rule 4(m), withdrew the First Rule 4(m) 

FCR, and extended Davis’s deadline to properly effect and prove service to December 

2, 2022, but denied his request for court-appointed counsel. See Dkt. No. 18. 

It is now more than four months after the extended deadline to properly effect 

and prove service, and Davis has neither done so nor otherwise contacted the Court 

regarding this case. 

Discussion 

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 

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

1512 (5th Cir. 1988)). 

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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. Nos. 13, 16. Yet, Davis has failed to 

effect proper service in the time allowed by the relevant rules and as extended by the 

Court. 

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

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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 

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

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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. The Court 

should therefore dismiss this lawsuit without prejudice under Rule 4(m). 

Going a step further, Rule 41(b) “authorizes the district court to dismiss an 

action sua sponte for failure to prosecute or comply with [a Federal Rule of Civil 

Procedure or] a court order.” Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th 

Cir. 2018) (citing McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per 

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curiam)); accord Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 440 (5th 

Cir. 2016) (failure to comply with a court order); Rosin v. Thaler, 450 F. App’x 383, 

383-84 (5th Cir. 2011) (per curiam) (failure to prosecute); see also Campbell v. 

Wilkinson, 988 F.3d 798, 800-01 (5th Cir. 2021) (holding that the text of Rule 41(b) 

does not extend to a failure to comply with a court’s local rule insofar as that violation 

does not also qualify as a failure to prosecute (discussing Berry v. CIGNA/RSICIGNA, 975 F.2d 1188 (5th Cir. 1992))). 

This authority “flows from the court’s inherent power to control its docket and 

prevent undue delays in the disposition of pending cases.” Boudwin v. Graystone Ins. 

Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 

626 (1962)); see also Lopez v. Ark. Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 

1978) (“Although [Rule 41(b)] is phrased in terms of dismissal on the motion of the 

defendant, it is clear that the power is inherent in the court and may be exercised sua 

sponte whenever necessary to ‘achieve the orderly and expeditious disposition of 

cases.’” (quoting Link, 370 U.S. at 631)); Campbell, 988 F.3d at 800 (“It is well 

established that Rule 41(b) permits dismissal not only on motion of the defendant, 

but also on the court’s own motion.” (citing Morris v. Ocean Sys., Inc., 730 F.2d 248, 

251 (5th Cir. 1984) (citing, in turn, Link, 370 U.S. at 631))). 

And the Court’s authority under Rule 41(b) is not diluted by a party proceeding 

pro se, as “[t]he right of self-representation does not exempt a party from compliance 

with relevant rules of procedural and substantive law.” Wright v. LBA Hospitality, 

754 F. App’x 298, 300 (5th Cir. 2019) (per curiam) (quoting Hulsey v. Texas, 929 F.2d 

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168, 171 (5th Cir. 1991) (quoting, in turn, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 

Nov. 1981))). 

A Rule 41(b) dismissal may be with or without prejudice. See Long v. Simmons, 

77 F.3d 878, 879-80 (5th Cir. 1996). 

Although “[l]esser sanctions such as fines or dismissal without prejudice 

are usually appropriate before dismissing with prejudice, ... a Rule 41(b) 

dismissal is appropriate where there is ‘a clear record of delay or 

contumacious conduct by the plaintiff and when lesser sanctions would 

not serve the best interests of justice.’” 

Nottingham, 837 F.3d at 441 (quoting Bryson v. United States, 553 F.3d 402, 403 (5th 

Cir. 2008) (per curiam) (in turn quoting Callip v. Harris Cnty. Child Welfare Dep’t, 

757 F.2d 1513, 1521 (5th Cir. 1985))); see also Long, 77 F.3d at 880 (a dismissal with 

prejudice is appropriate only if the failure to comply with the court order was the 

result of purposeful delay or contumacious conduct and the imposition of lesser 

sanctions would be futile); cf. Nottingham, 837 F.3d at 442 (noting that “lesser 

sanctions” may “‘include assessments of fines, costs, or damages against the plaintiff, 

conditional dismissal, dismissal without prejudice, and explicit warnings’” (quoting 

Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013))). 

“When a dismissal is without prejudice but ‘the applicable statute of 

limitations probably bars future litigation,’” that dismissal operates as – i.e., it is 

reviewed as – “a dismissal with prejudice.” Griggs, 905 F.3d at 844 (quoting 

Nottingham, 837 F.3d at 441); see, e.g., Wright, 754 F. App’x at 300 (affirming 

dismissal under Rule 41(b) – potentially effectively with prejudice – where “[t]he 

district court had warned Wright of the consequences and ‘allowed [her] a second 

chance at obtaining service’” but she “disregarded that clear and reasonable order”). 

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Davis’s continued failure to properly effect service has prevented this action 

from proceeding. A Rule 41(b) dismissal of this lawsuit without prejudice is 

warranted under these circumstances. Because the undersigned concludes that lesser 

sanctions would be futile, as the Court is not required to delay the disposition of this 

case until such time as Davis decides to obey the Court’s orders or otherwise properly 

effect service, the Court should exercise its inherent power to prevent undue delays 

in the disposition of pending cases and sua sponte dismiss this action without 

prejudice under Rule 41(b). 

It is not apparent based on the record here whether dismissal of this lawsuit 

without prejudice at this stage would effectively be a dismissal with prejudice – for 

example, because a statute of limitations would prevent Davis’s refiling these claims. 

But, insofar as this dismissal may somehow prejudice Davis, these findings, 

conclusions, and recommendation afford notice, and the opportunity to file objections 

(further explained below) affords an opportunity to respond, to explain why this case 

should not be dismissed for the reasons set out above. See Carver v. Atwood, 18 F.4th 

494, 498 (5th Cir. 2021) (“The broad rule is that ‘a district court may dismiss a claim 

on its own motion as long as the procedure employed is fair.’ More specifically, 

‘fairness in this context requires both notice of the court’s intention and an 

opportunity to respond’ before dismissing sua sponte with prejudice.” (citations 

omitted)). 

Recommendation

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

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Civil Procedure 4(m) and 41(b). 

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: April 11, 2023 

 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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