UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ALICE STONE §

§

Plaintiff, §

§

v. § NO. 3:06-CV-0027-AH

§

CAC VI LIMITED PARTNERSHIP, §

et al. §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Pursuant to the written consents of the parties and the District Court’s order of transfer of

February 10, 2006, came on to be considered the motion to dismiss filed by Virginia CAC VI

Limited Partnership; CAC VI Special General, Inc.; CAC VI Special General, LLC; Cornerstone

Acquisition Company, LLC; Cornerstone Realty Income Trust, Inc. and Estrada Oaks

Apartments on April 6, 2006, and the motion for summary judgment filed by all Defendants on

May 22, 2006, together with the respective briefs and appendices submitted and a copy of all

documents from the state court proceeding, see 28 U.S.C. § 1446(a), and the court finds and

orders as follows:

Factual Background

On November 15, 2003, Plaintiff Alice Stone slipped and fell on a set of stairs on the

premises of Estrada Oaks Apartments. As a result of the fall, Plaintiff claims to have suffered a

fracture to her right arm, fractures to her left knee, and injuries to her shoulder and right ankle.

Procedural History

Plaintiff filed a personal injury action against Defendants in County Court of Dallas

 

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County at Law No. 5 on November 15, 2005. In her petition, Plaintiff alleged that Defendants

occupied, controlled, managed and maintained the premises of Estrada Oaks Apartments. 

Plaintiff requested citations to be issued on the same day. Process was later served on CT

Corporation, a registered agent for some of Defendants, on December 8, 2005.

Defendants removed the action to federal court on January 5, 2006, on the basis of

diversity of citizenship; see 28 U.S.C. §§ 1332(a)(1), 1332(b), 1441; and filed their answer to

Plaintiff’s original complaint on the same day. Thereafter, on April 6, 2006, Virginia CAC VI

Limited Partnership; CAC VI Special General, Inc.; CAC VI Special General, LLC; Cornerstone

Acquisition Company, LLC; Cornerstone Realty Income Trust, Inc. and Estrada Oaks

Apartments filed a motion to dismiss for want of personal jurisdiction.

On May 18, 2006, Defendants’ counsel filed an Amended Certificate of Conference in

which she informed the court that after discussing the above filed motion to dismiss with

Plaintiff’s counsel, that they agreed to dismissal of all movant defendants. Therefore, the only

remaining defendant is CAC VI Limited Partnership (owner of Estrada Oaks Apartments).

On May 22, 2006, Defendants filed their motion for summary judgment. Plaintiff filed

her response on June 8, 2006, and Defendants filed a reply on June 16, 2006.

Summary Judgment–Standard of Review

To prevail on a motion for summary judgment, the moving party has the initial burden of

showing that there is no genuine issue of any material fact and that judgment should be entered

as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.

2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505,

2509-10 (1986). The materiality of facts is determined by substantive law. Anderson, 477 U.S.

 

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at 248, 106 S. Ct. at 2510. An issue is “material” if it involves a fact that might affect the

outcome of the suit under governing law. Burgos v. Southwestern Bell Telephone Co., 20 F.3d

633, 635 (5th Cir. 1994). Once the moving party has made an initial showing, the party

opposing the motion for summary judgment may not merely rely on his pleadings, but must

come forward with competent evidentiary materials that establish a genuine fact issue. 

Anderson, 477 U.S. at 256-257, 106 S. Ct. at 2514; see also Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S. Ct. 1348, 1355-56 (1986). Neither conclusory

allegations nor hearsay statements are competent summary judgment evidence, and thus are

insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th

Cir. 1996). The party opposing summary judgment is required to identify specific evidence in

the record and to articulate the precise manner in which that evidence supports the opponent’s

claim. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). The court must

resolve any factual controversies in favor of the non-moving party. Richter v. Merchants Fast

Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996). Thus, in reviewing all of the evidence, the

court must consider it in a light most favorable to Ms. Stone’s claims, drawing all factual

inferences therefrom and making all credibility determinations related therefrom in her favor. 

However, summary judgment will be granted “against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S. Ct. at 2552.

In the instant case, Defendant argues that summary judgment is appropriate because

Plaintiff served Defendant over three weeks after the expiration of the applicable statute of

limitations.

 

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Failure to Exercise Due Diligence in Serving Defendant

When a federal court considers a state law claim under its diversity jurisdiction, the

applicable state statute of limitations governs the determination of whether the claim is timebarred. Paredes v. City of Odessa, 128 F. Supp. 2d 1009, 1016 (W.D. Tex. 2000) (citing

Gonzales v. Wyatt, 157 F.3d 1016, 1021 n.1 (5th Cir. 1998)). Under section 16.003(a) of the

Texas Civil Practice and Remedies Code, a plaintiff alleging personal injury must bring suit “not

later than two years after the day the cause of action accrues.” “To ‘bring suit’ within the

two-year limitations period prescribed by section 16.003, a plaintiff must not only file suit within

the applicable limitations period, but must also use diligence to have the defendant served with

process.” Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); see also Saenz v. Keller Indus. of

Texas, Inc., 951 F.2d 665, 667 (5th Cir. 1992) (applying the “due diligence” standard in a

diversity case). If a plaintiff files a petition near the close of the limitations period but does not

effect service of process until after the limitations period has expired, “the date of service relates

back to the date of filing if the plaintiff exercised diligence in effecting service.” Gant, 786

S.W.2d at 260. 

Where a defendant files a motion for summary judgment on the basis that the plaintiff

failed to exercise due diligence in effecting service, the defendant has the initial burden to

establish as a matter of law that service was not effected until after the limitations period had

run. Harrell v. Alvarez, 46 S.W.3d 483, 485 (Tex. App.-El Paso 2001, no pet.). In this case, the

summary judgment evidence establishes that Defendant was not served with process until

December 8, 2005, more than three weeks after the expiration of the prescriptive two-year

 

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 Defendant failed to submit a copy of the citation it received. Instead, such evidence was

provided by Plaintiff.

2

 Plaintiff is no longer represented by the firm and is proceeding pro se.

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limitations period.1

 (Pl.’s Brief Opposing Defs.’ Mot. Summ. J., App. at 8-9.) 

When the defendant is able to establish this initial defense, the burden shifts to the

plaintiff to show that she exercised due diligence in serving the defendant. Id. at 485-86. A

plaintiff exercised due diligence in attempting to serve a defendant if she: “(1) acted as an

ordinary prudent person would under the same circumstances, and (2) was diligent up until the

time the defendant was served.” $6453.00 v. State, 63 S.W.3d 533, 536 (Tex. App.-Waco 2001,

no pet.) The length of the delay between the filing of suit and the service of process is not the

critical factor in determining whether the plaintiff exercised due diligence; rather, a court will

determine the existence of a factual dispute based on the plaintiff’s proffered explanation for the

delay, if any. See Keeton v. Carrasco, 53 S.W.3d 13, 18 (Tex. App.-San Antonio 2001, pet.

denied); Saenz, 951 F.2d at 667-68; Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126, 128

(Tex. App.-Texarkana 1986, no writ). Where a plaintiff submits evidence to explain the delay,

Texas state courts generally decline to find a lack of due diligence as a matter of law unless the

proffered explanation affirmatively establishes a lack of reasonable diligence. See Saenz, 951

F.2d at 667, Valdez, 715 S.W.2d at 128. 

In response to Defendant’s motion for summary judgment, Plaintiff attached the affidavit

of Maria Sotelo who worked as a legal assistant at the offices of Bailey, Galyen & Gold during

the time period when the firm filed suit on Plaintiff’s behalf.2

 (Pl.’s Brief Opposing Defs.’ Mot.

Summ. J., App. at 10-11.) In her affidavit Ms. Soltelo avers that she filed the civil complaint at

issue in this case on November, 15, 2005, and requested citations to be issued on the same day. 

 

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(Pl.’s Brief Opposing Defs.’ Mot. Summ. J., App. at 10). While she acknowledges that the

Clerk of Court issued the citations a few days after she submitted her request, she alleges that

they were sent to the law firm’s office in Arlington, Texas rather than to the office where she

worked in Bedford, Texas. (Pl.’s Brief Opposing Defs.’ Mot. Summ. J., App. at 11.) Ms. 

Sotelo states that it took her “a few days” to locate the citations and have them mailed to the

Bedford office. (Pl.’s Brief Opposing Defs.’ Mot. Summ. J., App. at 11.) Thereafter, she

contacted a process server who picked up the citations “soon afterward.” Two exhibits included

in Plaintiff’s appendix reveal that the citations were issued on November 17, 2005, and that the

process server picked up the citations on November 30, 2005. (Pl.’s Brief Opposing Defs.’ Mot.

Summ. J., App. at 8, 12.) 

Defendant argues it its reply that the evidence submitted by Plaintiff fails to establish due

diligence as a matter of law. However, on a motion for summary judgment, Plaintiff had the

burden to demonstrate the existence of a factual dispute regarding her exercise of due diligence,

not to establish due diligence as a matter of law. Plaintiff satisfied this burden by submitting

evidence showing that Ms. Sotelo requested the issuance of citations on the same day she filed

suit on Plaintiff’s behalf and that she contacted a process server within two weeks of issuance,

after locating the citations at the firm’s Arlington offices and requesting that they be sent to her

at the firm’s office in Bedford. This explanation, on its face, does not affirmatively establish a

lack of due diligence. Moreover, Defendant did not produce any evidence that challenged the

truthfulness or accuracy of Ms. Sotelo’s contentions.

IT IS, THEREFORE, ORDERED that Defendant CAC VI Limited Partnership’s 

motion for summary judgment is denied.

 

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IT IS FURTHER ORDERED that, Defendants Virginia CAC VI Limited Partnership;

CAC VI Special General, Inc.; CAC VI Special General, LLC; Cornerstone Acquisition

Company, LLC; Cornerstone Realty Income Trust, Inc. and Estrada Oaks’ unopposed motion to

dismiss for lack of jurisdiction is granted.

A copy of this order will be transmitted to Alice Stone and to counsel for CAC VI

Limited Partnership.

Signed this 19th day of October, 2006.

_________________________

 Wm. F. Sanderson Jr.

United States Magistrate Judge

 

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