IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50171

MICHELLE HENDERSON, 

 Plaintiff - Appellant

v.

REPUBLIC OF TEXAS BIKER RALLY, INCORPORATED, 

 Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:15-CV-392

Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.

PER CURIAM:*

While attending the Republic of Texas Biker Rally (“Rally”), Michelle 

Henderson was seriously injured when a golf cart operated by a fellow attendee 

struck her, pinning her beneath it. Henderson sued Republic of Texas Biker 

Rally, Inc. (“ROT”) for negligence. ROT moved to dismiss, asserting defenses 

of insufficient process under Federal Rule of Civil Procedure 12(b)(4) and 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 6, 2016

Lyle W. Cayce

Clerk

 Case: 16-50171 Document: 00513785309 Page: 1 Date Filed: 12/06/2016
No. 16-50171

2

insufficient service of process under Rule 12(b)(5). The district court granted 

ROT’s motion. Henderson appeals. We AFFIRM. 

I

The Rally is organized by ROT and hosted annually in Austin, Texas. 

Henderson attended the Rally in 2013 and was seriously injured when she was 

struck by a golf cart. She filed suit against ROT and others in Texas state court, 

bringing a cause of action for negligence against ROT. The case was eventually 

removed to federal district court. 

ROT moved to dismiss on the grounds that Henderson failed to

effectively serve ROT prior to the expiration of Texas’s two-year statute of 

limitations for negligence claims. ROT argued that: (1) Henderson’s service on 

ROT was insufficient because her attempts at service failed to abide by Texas 

law or the Federal Rules; and (2) even if her service was adequate, it was 

untimely. The district court granted the motion.

II

“We review a dismissal for failure to effect timely service of process for 

an abuse of discretion.” Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 445 (5th 

Cir. 1996). “Generally, an abuse of discretion only occurs where no reasonable 

person could take the view adopted by the trial court.” Ratliff v. Stewart, 508 

F.3d 225, 229 (5th Cir. 2007). District courts enjoy broad discretion in Rule 

12(b)(4) and 12(b)(5) contexts, so our review is particularly deferential when a 

district court dismisses an action for ineffective service. See George v. U.S. 

Dept. of Labor, Occupational Safety & Health Admin., 788 F.2d 1115, 1116 (5th 

Cir. 1986) (“The district court enjoys a broad discretion in determining whether 

to dismiss an action for ineffective service of process.”). Finally, “once the 

validity of service of process has been contested, the plaintiff bears the burden 

of establishing its validity.” Carimi v. Royal Caribbean Cruise Line, Inc., 959 

F.2d 1344, 1346 (5th Cir. 1992). 

 Case: 16-50171 Document: 00513785309 Page: 2 Date Filed: 12/06/2016
No. 16-50171

3

III

Texas has a two-year statute of limitations for negligence claims. See

Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). Under Texas law, a plaintiff 

must both file suit and serve process on the defendant within the limitations

period or her claim is time-barred. See Rigo Mfg. Co. v. Thomas, 458 S.W.2d 

180, 182 (Tex. 1970) (noting that the Supreme Court of Texas “long ago 

established the rule that the mere filing of a suit will not interrupt or toll the 

running of a statute of limitation; that to interrupt the statute, the use of 

diligence in procuring the issuance and service of citation is required”). If a 

defendant files suit within the limitations period, and then diligently and 

continually attempts to serve the defendant but is unable to do so until after 

the limitations period expires, the date of service will relate back to the date 

suit was filed. See Parsons v. Turley, 109 S.W.3d 804, 808 (Tex.App.–Dallas 

2003, pet.) (“The duty to use due diligence continues from the date the suit is 

filed until the date the defendant is served.”) A plaintiff must satisfactorily 

“present evidence regarding the efforts that were made to serve the defendant, 

and to explain every lapse in effort or period of delay.” Proulx v. Wells, 235 

S.W.3d 213, 216 (Tex. 2007). 

A corporation in the United States can be served either:

(A) in the manner prescribed by Rule 4(e)(1) for serving an 

individual; or

(B) by delivering a copy of the summons and of the complaint to an 

officer, a managing or general agent, or any other agent 

authorized by appointment or by law to receive service of 

process and—if the agent is one authorized by statute and the 

statute so requires—by also mailing a copy of each to the 

defendant. 

Fed R. Civ. P. 4(h)(1). Rule 4(e)(1) allows for service to be effected 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 

 Case: 16-50171 Document: 00513785309 Page: 3 Date Filed: 12/06/2016
No. 16-50171

4

made.” Under Texas law, a corporation may be served through the 

corporation’s registered agent, president, or vice president. See Tex. Bus. Orgs. 

Code Ann. §§ 5.201, 5.255(1). If a corporation fails to maintain a registered 

agent in Texas or the registered agent cannot be served through reasonable 

diligence, a plaintiff may serve the Texas Secretary of State instead. See id., 

§ 5.251. 

IV

Henderson’s cause of action accrued on the date of the golf cart 

incident—June 13, 2013. The statute of limitations for her negligence claims 

expired two years later, on June 13, 2015. Henderson filed suit in Texas state 

court on July 30, 2014, well within the limitations period. On June 11, 2015, 

two days before the limitations period expired, Henderson requested that ROT 

waive service. The waiver request was served on Lynn Castagna, who 

Henderson evidently believed was ROT’s outside counsel at the time. 

Henderson then attempted to serve ROT’s registered agent on June 12, 2015, 

but was unsuccessful. Finally, Henderson served ROT’s registered agent at the 

Rally held on June 15, 2015—two days after the limitations period expired.

We must decide two issues: (1) whether the June 11, 2015 waiver request 

was effective; and (2) if not, whether Henderson diligently attempted to serve 

ROT such that the untimely service on June 15, 2015 related back to the date 

she filed suit.1

Rule 4(d) describes how a plaintiff may request that a defendant waive 

service. If the defendant is a corporation, the request must be addressed “to an 

officer, a managing or general agent, or any other agent authorized by 

 

1 The district court determined that, regardless of whether Henderson’s efforts were 

diligent, she failed to properly serve ROT according to Texas law. We assume without 

deciding that the eventual service was legally proper and address only whether she exercised 

due diligence as a matter of law. 

 Case: 16-50171 Document: 00513785309 Page: 4 Date Filed: 12/06/2016
No. 16-50171

5

appointment or by law to receive service of process.” Fed R. Civ. P. 

4(d)(1)(A)(ii). Here, Henderson addressed the waiver request to “Republic of 

Texas Biker Rally, Inc. c/o Lynn Castagna,” and provided the business address 

for Castagna’s law firm. As the district court noted, “Ms. Castagna is not ROT’s 

registered agent, president, or vice president under Texas law, nor is she an 

officer, a managing or general agent, or any other agent authorized by 

appointment or by law to receive service of process.” Henderson v. Republic of 

Tex. Biker Rally, Inc., 2015 WL 6829514, at *3 (W.D. Tex. Nov. 6, 2015). 

Henderson’s waiver request was thus ineffective. 

We next turn to the diligence issue. A lack of diligence may be 

established as a matter of law if “one or more lapses between service efforts 

are unexplained or patently unreasonable.” Proulx, 235 S.W.3d at 216. Here, 

there is no dispute that Henderson did not serve ROT’s registered agent until 

June 15, 2015—two days after the limitations period expired. Henderson 

argues that she diligently attempted to serve ROT, so the date of service should 

relate back to the date she filed suit. Henderson attempted to serve ROT’s 

registered agent on August 16, 2014 and then again on September 7, 2014, but 

was unsuccessful. Her next attempt at service did not come until nine months 

later on June 12, 2015—the day before the limitations period expired. 

Henderson offers no excuse for this extended delay. She notes only that ROT 

changed registered agents in December 2014. But Henderson admits she did 

not discover the change until nearly six months later, even though that

information was public and readily available.

Henderson has not explained the more than nine-month gap between her 

failed attempts to serve ROT. Texas courts have regularly held that 

comparable gaps conclusively negate a finding of diligence as a matter of law. 

See Proulx, 235 S.W.3d at 217 (collecting cases). Consequently, the eventual 

date of service does not relate back to the date Henderson’s suit was filed.

 Case: 16-50171 Document: 00513785309 Page: 5 Date Filed: 12/06/2016
No. 16-50171

6

Because Henderson did not effect service on ROT until after the limitations 

period expired, her negligence claim is time-barred. 

V

ROT asks us to find that Henderson’s appeal is frivolous, and to order 

her to pay ROT’s reasonable attorney’s fees and double ROT’s costs under 

Federal Rule of Appellate Procedure 38. We decline to find that Henderson’s 

appeal is “wholly without merit.” Howard v. St. Germain, 599 F.3d 455, 458 

(5th Cir. 2010). ROT’s request for attorney’s fees and extra costs is denied. 

VI

The district court’s ruling is AFFIRMED.

 Case: 16-50171 Document: 00513785309 Page: 6 Date Filed: 12/06/2016