Reported / Citable
Background
Oscar Saul Gallegos moved for authorization to use substituted service on defendants Virginia Oyervides and Roger Ordonez, and for a 30-day extension of the deadline to serve them. His process server submitted affidavits identifying two properties the server believed the defendants jointly owned, in Canutillo and El Paso, Texas.
The affidavits did not state that Oyervides or Ordonez could probably be found at either property. The Canutillo property was occupied by defendant Vanessa Monsivais, who told the process server that Oyervides and Ordonez had no affiliation with her business. The server also did not report signs that the El Paso property was occupied.
The Court’s Holding
Magistrate Judge Robert F. Castañeda denied without prejudice the request for substituted service. Under Texas Rule of Civil Procedure 106(b)(2), a request for alternative service must include a sworn statement listing locations where the defendant can probably be found. Property ownership alone did not establish that either defendant could be found at the listed addresses.
The court granted a 30-day extension to complete service under Federal Rule of Civil Procedure 4(m). Although it was not persuaded that the defendants’ evasion, rather than Gallegos’s lack of effort, prevented service, the court exercised its discretion based on judicial efficiency and the interest in resolving cases on their merits.
Key Takeaways
- An alternative-service request must identify a location where the defendant can probably be found, not merely property the defendant owns.
- A process-server affidavit should provide facts connecting the defendant to the proposed service address.
- Rule 4(m) permits a court to extend the service deadline even without a showing of good cause.
Why It Matters
The order underscores that Texas’s substitute-service rule requires evidence of a defendant’s likely presence or use of the proposed location. Ownership records, without more, will not satisfy that requirement.
At the same time, the decision illustrates the broad discretion federal courts retain to extend service deadlines so a case may proceed on the merits. Gallegos must now serve Oyervides and Ordonez under Rule 4 within 30 days of the order.