Reported / Citable
Background
This matter involves a motion filed by defendants seeking authorization to serve third-party defendants Smiley Distributors LLC and Toro Imports, LLC via substituted service. Defendants had attempted multiple times to personally serve the registered agents of these entities but were unsuccessful.
For Smiley Distributors, defendants sought authorization to serve via substituted service at two addresses: 11526 Harry Hines Boulevard in Dallas and 3413 De Vinci Drive in Plano, Texas. For Toro Imports, defendants requested substituted service at 522 Newington Lane in Sugar Land, Texas, where four prior service attempts had been made.
The Court’s Holding
The court granted the motion in part and denied it in part. Under Federal Rule of Civil Procedure 4(e)(1) and Texas Rule of Civil Procedure 106(b), substituted service is permitted only upon motion with proper affidavit showing that attempts at personal service have failed and the proposed location is one where the defendant “can probably be found.” Strict compliance with Rule 106(b) is required.
As to Toro Imports, the court authorized substituted service at 522 Newington Lane, Sugar Land, Texas 77479. The process server’s affidavit provided probative evidence that Toro’s registered agent Aziz Panjwani lives at that address—two individuals confirmed his residence there, his wife indicated he would be home the next day, and she later confirmed he was not home at the time of service attempts. This evidence was sufficient to show the location was where Panjwani “can probably be found.”
As to Smiley Distributors, the court denied authorization for substituted service at either proposed address. Evidence showed that at the Harry Hines Boulevard location, someone stated Alimuhammad “never comes into the business office anymore,” and at the De Vinci Drive location, a female resident said Alimuhammad does not reside there and she does not know him. This evidence failed to demonstrate that either location was where Alimuhammad “can probably be found.” The court noted, however, that defendants could alternatively seek service through the Texas Secretary of State under Texas Business Organizations Code § 5.251.
Key Takeaways
- Substituted service requires probative evidence that the proposed location is where the defendant can probably be found, not mere speculation or prior unsuccessful service attempts at that location.
- Affidavit evidence from process servers confirming residence and household members’ statements about the defendant’s presence at an address constitutes sufficient probative evidence for substituted service authorization.
- Evidence that a defendant “never” visits a business office or does not reside at a proposed location defeats a motion for substituted service at those locations.
- When substituted service is unavailable under state rules, parties may pursue alternative service methods such as service on the Secretary of State.
Why It Matters
This order clarifies the evidentiary standard for substituted service in the Fifth Circuit and Texas courts. Practitioners seeking substituted service must gather affidavits containing specific, probative facts showing the defendant probably can be found at the proposed location—general diligence in attempting service is insufficient. The opinion underscores that statements from third parties at the location (such as family members confirming residence or indicating when the defendant will return home) provide the type of concrete evidence courts require.
For defendants unable to effectuate personal service on a registered agent, the opinion is instructive: pursue alternative statutory service methods available under state law rather than risk denial of a substituted service motion on evidentiary grounds.