Memorandum Opinion and Order - Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JACKSON WALKER L.L.P., §

 §

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-671-L 

§

WETLAND ENVIRONMENTAL §

TECHNOLOGIES, L.L.C., §

 §

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the court is Plaintiff’s Request for Entry of Default & Default Judgment, filed June

20, 2005. Plaintiff Jackson Walker L.L.P. (“Jackson Walker” or “Plaintiff”) seeks a default

judgment against Defendant Wetland Environmental Technologies, L.L.C. (“Wetland” or

“Defendant”). Jackson Walker filed this action on April 6, 2005. Jackson Walker maintains that

Wetland was served with a copy of the Summons and Complaint, via the Secretary of State on May

18, 2005. Wetland has not answered, or otherwise responded pursuant to Fed. R. Civ. P. 12.

Jackson Walker contends that it is entitled to entry of default and default judgment because Wetland

has not filed a responsive pleading or otherwise defended this suit. In support of its request for entry

of default, Jackson Walker submitted a copy of the Certificate of Service issued by the Texas

Secretary of State on May 18, 2005. The certificate states, in part, that a copy of the Summons and

Plaintiff’s Original Complaint was forwarded to Wetland’s registered agent in Atlanta, Georgia on

April 14, 2005, by certified mail, return receipt requested. The certificate further states that “The

PROCESS was returned to this office on May 17, 2005, bearing the notation Unclaimed.” Plaintiff’s

Request for Entry of Default, Exhibit A. 

 

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Memorandum Opinion and Order - Page 2

The Texas Long Arm Statute provides in pertinent part: 

§ 17.045. Notice to Nonresident 

(a) If the secretary of state is served with duplicate copies of process

for a nonresident, he shall require a statement of the name and

address of the nonresident's home or home office and shall

immediately mail a copy of the process to the nonresident. 

Tex. Civ. Prac. & Rem.Code § 17.045(a). In Barnes v. Frost National Bank, 840 S.W.2d 747

(Tex.App.-San Antonio 1992, no writ), the court concluded a Secretary of State’s Certificate that

stated process was “unclaimed” did not confer personal jurisdiction in the trial court over a

nonresident defendant. Barnes, 840 S.W.2d at 750. In reaching its decision, the court noted that

the Barnes record did not reflect whether (i) the plaintiff gave the secretary of state the correct

address for the defendant or (ii) the secretary of state’s officer received the return receipt. Id. 

This court agrees with the Barnes court's reasoning. The record in this case does not reflect

that Jackson Walker provided the Secretary of State with Wetland’s home office address in Georgia,

or even the correct address for Wetland’s agent for service in Georgia. Further, as articulated in

Barnes, “An unclaimed letter from the Secretary of State’s office can hardly further the aim and

objective of the long-arm statute, which is to provide reasonable notice of the suit and an

opportunity to be heard.” Id. The law makes no presumption favoring valid issuance, service, and

return of citation in a default judgment case. See Uvalde Country Club v. Martin Linen Supply

Company, 690 S.W.2d 884, 885 (Tex. 1985)). Accordingly, Plaintiff shall file an amended motion

establishing that service was effected in compliance with the applicable rules and due process.

Plaintiff’s Request for Entry of Default & Default Judgment is denied. 

 

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Memorandum Opinion and Order - Page 3

It is so ordered this 2nd day of August, 2005.

_________________________________

Sam A. Lindsay

United States District Judge

 

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