Reported / Citable
Background
Glenn Larkins was injured while performing maintenance on a defective transformer when a small derrick tipped over. Two years later, he and his wife Rhonda filed suit in Texas state court on the final day of the two-year limitations period against the derrick’s manufacturer, S.D.P. Manufacturing, and several corporate entities that had leased the machine to Larkins’s employer. They received their service citations the following day.
Three days after receiving the citations, a paralegal forwarded them to a process server. The paralegal’s attention during this period was consumed by concurrent discovery and deposition deadlines in an unrelated Louisiana trial, which was further complicated by a courthouse fire that reshuffled all deadlines and prompted the firm’s attorney to file an emergency writ to the Louisiana Court of Appeals. Approximately 26 days (18 business days) passed before the paralegal followed up with the process server, who responded that service remained pending due to confusion over the identities and addresses of the multiple similarly named corporate defendants. After performing an “audit” of defendants’ addresses and issuing revised instructions, service on all defendants was completed within the next two weeks—roughly 50 days after the citations had issued. Defendants removed the case to federal court.
The U.S. District Court for the Southern District of Texas found the Larkinses insufficiently diligent as a matter of law. It faulted them for the three-day delay in transmitting citations, the roughly four-week gap before following up with the process server, and the additional days spent clarifying service instructions after the process server reported confusion. The district court granted S.D.P. Manufacturing’s motion to dismiss and entered summary judgment for the corporate entity defendants.
The Court’s Holding
The Fifth Circuit reversed, holding that the district court applied a more demanding standard than Texas law requires. Writing for a panel of Judges Southwick, Willett, and Ho, Judge Ho emphasized that Texas law demands only “ordinary diligence”—not the “highest degree of diligence”—and that the question of diligence is almost always one of fact rather than law. A plaintiff’s explanation for a delay defeats dismissal as a matter of law unless it is “patently unreasonable.”
The court found that each period of delay identified by the district court was supported by at least a minimal explanation sufficient to survive judgment as a matter of law. The three-day initial delay was adequately explained by the paralegal’s simultaneous obligations in the Louisiana litigation. Allowing the process server 18 business days to attempt service on multiple similarly named corporate entities before following up was not patently unreasonable, particularly given the courthouse fire and its cascading effects. And the subsequent address audit and revised service instructions, though taking additional days, were neither unexplained nor patently unreasonable on this record.
The Fifth Circuit also distinguished the cases relied upon by the district court and defendants, observing that those decisions involved complete failures of explanation or affirmative instructions to delay service—circumstances plainly absent here. Surveying the weight of Texas authority, the court concluded the record presented at most a genuine fact question on diligence, precluding dismissal or summary judgment as a matter of law. The case was reversed and remanded for further proceedings.
Key Takeaways
- Under Texas law, a plaintiff who files suit on the last day of the limitations period may serve defendants after the period expires without losing the timeliness of the filing, so long as service efforts reflect “ordinary diligence”—not the highest possible diligence.
- A plaintiff’s explanation for delays in service defeats judgment as a matter of law unless the explanation is “patently unreasonable”; the diligence question is almost invariably one of fact for the factfinder.
- Minimal delays require only minimal explanations; concurrent litigation obligations, courthouse emergencies, and the complexity of serving multiple similarly named corporate defendants can collectively raise a genuine fact issue even where no single explanation is airtight.
- Plaintiffs may delegate service to a process server and allow a reasonable period for the server to act without losing their diligence showing, but they may not hand off citations and abandon oversight of the process entirely.
Why It Matters
This decision is a practical reminder that Texas’s diligent-service doctrine, which allows late service to relate back to a timely filing, is not a strict-liability trap requiring perfect or instantaneous action. For plaintiffs’ lawyers filing on limitations deadlines—a common reality in personal injury practice—the case confirms that ordinary professional disruptions, when documented, can support at least a fact question on diligence, and that courts may not substitute a demanding hypothetical standard for the “ordinarily prudent person” inquiry Texas law prescribes.
For defense counsel, the decision signals that motions to dismiss or for summary judgment on diligence grounds face a high bar in the Fifth Circuit when sitting in diversity under Texas law. Only cases involving total silence in the record or affirmative plaintiff-caused delays—such as instructing the clerk not to issue a citation—are likely to support judgment as a matter of law. Where any colorable explanation exists, the question belongs to the factfinder.