Reported / Citable
Background
Pro se plaintiff Emily Sutton sought permission to use substituted service on defendant Pierce Skrabanek, PLLC. The court had previously denied an earlier request because Sutton had not shown an attempt to serve the firm’s registered agent, Michael E. Pierce, at the registered address listed in her complaint.
With her renewed motion, Sutton submitted a process server’s report stating that the registered-office address on Kirby Drive appeared vacant and that attempts at the firm’s mailing address on Greenway Plaza were unsuccessful. The report also stated, without clarification, that “THE DEFENDANT DOES WORK HERE.” After the court ordered further submissions, Sutton filed a process-server declaration, but it did not address the Greenway notation and omitted the facts concerning the attempted service at the Kirby Drive registered office.
The Court’s Holding
Magistrate Judge Anne T. Berton denied the motion without prejudice. Under Federal Rule of Civil Procedure 4 and Texas Rule of Civil Procedure 106(b), a party seeking substituted service must support the request with an affidavit or qualifying declaration identifying where the defendant can probably be found and stating specific facts showing unsuccessful traditional-service attempts at that location.
The declaration did not state specific facts showing an unsuccessful attempt to serve Pierce Skrabanek’s registered agent at its registered office. That omission was fatal because Texas law requires at least one attempt to serve a registered agent before substituted service may be authorized. The court also found the record unclear as to whether the firm or its registered agent worked at the Greenway address.
Key Takeaways
- A request for substituted service in Texas must be supported by a sworn affidavit or compliant unsworn declaration.
- The supporting proof must specifically document an unsuccessful attempt to serve a business’s registered agent at its registered office.
- Sutton may renew her request with a declaration addressing the failed registered-office attempt and clarifying the Greenway address.
Why It Matters
The order underscores that a process server’s unsworn report alone does not satisfy Texas Rule 106(b). Litigants seeking alternative service must ensure their supporting declaration contains the necessary facts, including attempts to serve the registered agent at the registered office.
Because the denial was without prejudice, the ruling does not foreclose substitute service; it requires Sutton to supply complete and specific evidentiary support before the court will authorize it.