IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

MARY ALICE CHEATAM

Plaintiff,

v.

LASALLE CORRECTIONS

Defendant.

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CIVIL ACTION NO. 1:23-CV-40-MAC-CLS

REPORT AND RECOMMENDATION 

ON DEFENDANT’S MOTION TO DISMISS (DOC. #6)

Pursuant to 28 U.S.C. § 636 and the Local Rules of Court for the Assignment of Duties to 

United States Magistrate Judges, the district court referred this proceeding to the undersigned 

United States magistrate judge to conduct all pretrial proceedings, to enter findings of fact and 

recommend disposition on case-dispositive matters, and to determine non-dispositive matters. See

28 U.S.C. § 636(b)(1); E.D. TEX. CIV. R. 72. Pending before the court is Defendant’s Motion to 

Dismiss pursuant to 12b)(4) and 12(b)(5). (Doc. #6.) After review, the undersigned recommends 

that the motion be denied. 

Plaintiff Mary Alice Cheatam, proceeding pro se, filed her original complaint (doc. #1) on 

January 31, 2023, alleging Title VII claims against Defendant LaSalle Corrections. The 

undersigned granted Plaintiff’s motion to proceed in forma pauperis on February 1, 2023 (doc. 

#3), and a summons was issued to the United States Marshals Service (USMS) to deliver the 

summons and complaint to Defendant. The summons was returned executed that same day by

serving “O’Neal (transport officer)” at 1000 Pearl Street, Suite 101, Beaumont, TX 77701, the 

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address for Defendant that Plaintiff provided in the complaint. (Doc. #5.) Defendant identified 

this individual as Jared O’Neal. (Doc. #6 at 3.) 

Thereafter, Defendant filed the pending Motion to Dismiss (doc. #6) pursuant to Rule 

12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure due to insufficient process and 

insufficient service of process. The motion states that Defendant LaSalle Corrections is a limited 

liability company (LLC), whose registered agent is Tim Kurpiewski. (Doc. #6 at 3.) Kurpiewski 

cannot be served at the address in the summons, and Kurpiewski did not receive the summons and 

complaint. As such, Defendant has not been properly served at this time, and Defendant’s motion 

requests that the court wholly dismiss Plaintiff’s suit. 

A proper summons contains the correct name of the defendant and is directed to the 

defendant. FED. R. CIV. P. 4(a) (1)(A), (B). If the defendant is being served through its agent, the 

summons should state the agent’s name and address. FED. R. CIV. P. 4(h)(1). Defendant’s 

registered agent is Tim Kurpiewski, and he may be served with process at 26228 Ranch Road 12, 

Dripping Springs, Texas 78620. (Doc. 6-1 at ¶ 6.) To date, Kurpiewsi has not been served with 

process. (Doc. #6-1 at ¶ 6.) In light of the information Defendant has provided, the undersigned 

finds that USMS did not effectuate proper service on Defendant. 

The proper remedy, however, is to reissue a proper summons containing the name of the 

registered agent and direct USMS to serve the new summons on Defendant’s registered agent. 

Dismissal is not appropriate where there is a reasonable prospect that Defendant can be served 

properly. Furthermore, dismissal is not necessary after one single attempt at service of process. 

Stanga v. McCormick Shipping Corp., 268 F.2d 544, 554 (5th Cir. 1959) (noting that dismissal is 

not appropriate where there has been only one attempt at service of process); Allison v. Raytheon, 

No. 4:10CV438, 2010 WL 5535808, at *3 (E.D. Tex. Dec. 17, 2010). Here, Plaintiff is proceeding 

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in forma pauperis—thus, it is USMS, rather than Plaintiff, who was responsible for service, and 

USMS can now effectuate proper service as Defendant has advised the court of its registered agent 

and address. Moreover, Plaintiff is still well-within the 90-day time period for service prescribed 

by Rule 4(m) of the Federal Rules of Civil Procedure. See Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 

444, 447 (5th Cir. 1996) (citation omitted). Accordingly, Defendant’s Motion to Dismiss (doc. 

#6) for insufficient service of process should be denied. The undersigned will issue a separate 

order directing USMS to serve Defendant’s registered agent, Tim Kurpiewski, at the address 

provided to the court in Defendant’s motion. 

Recommendation

For the foregoing reasons, the undersigned recommends that Defendant’s Motion to 

Dismiss (doc. #6) be DENIED. 

Objections

Within fourteen (14) days after service of the magistrate judge’s report, any party must 

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). 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 report 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 party from appealing the unobjectedto factual findings and legal conclusions of the magistrate judge that are accepted by the district 

court, except upon grounds of plain error, provided that the party has been served with notice that 

such consequences will result from a failure to object. Douglass v. United Services Auto. Ass’n, 

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79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. 

§ 636(b)(1) (extending the time to file objections from ten to fourteen days). 

___________________________________

Christine L Stetson

UNITED STATES MAGISTRATE JUDGE SIGNED this the 9th day of March, 2023.

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