Holly v. Metropolitan Transit Authority , 213 F. App'x 343 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 11, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-20671
Summary Calendar
GENANA HOLLY,
Plaintiff-Appellant,
versus
METROPOLITAN TRANSIT AUTHORITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CV-884
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Genana Holly, a Texas resident, filed this employment-
discrimination action pro se and in forma pauperis (IFP). She
appeals the district court’s order granting the defendant’s
amended motion to dismiss, pursuant to FED. R. CIV. P. 12(b)(5),
for insufficiency of service of process. In that motion,
Metropolitan Transit Authority (Metro) contended that Holly’s
service of process was insufficient under FED. R. CIV. P. 4(j)(2)
because she had directed the United States Marshal’s Service to
send the summons and complaint to a Metro attorney, Deborah
*
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this opinion should not be published and is not precedent except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.
No. 05-20671
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Richard, who allegedly has not been designated by Metro to
receive process on its behalf.
A motion to dismiss pursuant to Rule 12(b)(5) turns on the
legal sufficiency of the service of process. The party making
service has the burden of demonstrating its validity when an
objection to service is made. Carimi v. Royal Carribean Cruise
Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). This court
reviews a district court’s dismissal under Rule 12(b)(5) for
abuse of discretion. Lindsey v. United States R.R. Ret. Bd., 101
F.3d 444, 445 (5th Cir. 1996).
In the absence of personal delivery, FED. R. CIV. P. 4(j)(2)
required Holly to serve the summons and complaint in the manner
prescribed by the law of the state in which the action was filed.
In Texas, Holly was required to serve Metro’s “administrative
head” by certified or registered mail, return receipt requested.
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.102(c); Wharton v. Metro
Transit Auth. of Harris County, No. 4:05-CV-0413, 2005 WL
1653075, at *2 (S.D. Tex. July 8, 2005). It is not disputed that
Holly failed to serve Metro in this manner.
It is true that service of process by pro se, IFP litigants
is governed by “[s]pecial,” or more lenient, rules. See Lindsey,
101 F.3d at 446. Nonetheless, when the failure of effective
service may be ascribed to the plaintiff’s “dilatoriness or
fault” or “inaction,” the case may be properly dismissed. See
Rochon v. Dawson, 828 F.2d 1107, 1109-10 (5th Cir. 1987). Metro
filed its amended motion to dismiss on May 31, 2005. Instead of
responding to the motion or attempting to correct her improper
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service, Holly filed a motion for entry of default and a motion
for summary judgment. Approximately two months later, the
district court granted the motion to dismiss. Because of Holly’s
“inaction” in the face of Metro’s challenge to the sufficiency of
service, the district court did not abuse its discretion in
granting the motion. See Rochon, 828 F.2d at 1110; Lindsey, 101
F.3d at 445. The judgment of the district court is AFFIRMED.
Holly’s motion for production, at Government expense, of a
transcript of a July 22, 2005, status conference is DENIED, based
Holly’s failure to identify a particularized need for such
transcript. See 28 U.S.C. § 753(f); Harvey v. Andrist, 754 F.2d
569, 571 (5th Cir. 1985).