Javier E. Avila v. New Directions Publishing Corporation and Does 1 through 10, inclusive

• Court: District Court, W.D. Texas
• Decided: October 6, 2025
• Docket: 3:25-cv-00172
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS EL PASO DIVISION

JAVIER E. AVILA, § § Plaintiff, § § v. § No. 3:25-CV-00172-LS § NEW DIRECTIONS PUBLISHING § CORPORATION and DOES 1 through § 10, inclusive, § § Defendants. §

ORDER DENYING MOTION FOR ALTERNATIVE SERVICE

Plaintiff Javier E. Avila requests that the Court allow him to serve Defendants New Directions Publishing Corporation (“New Directions”) and Does 1 through 10 via alternative means of service.1 Specifically, he would like to serve Defendants via certified mail, email, or social media.2 A corporation may be served “in the manner prescribed by Rule 4(e)(1) for serving an individual.”3 Rule 4(e)(1) allows service “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.”4 Plaintiff is attempting to serve New Directions in New York.5 Both Texas and New York law allow for alternate means of service. Texas requires a “motion supported by a statement—sworn to before a notary or made under penalty of perjury— listing any location where the defendant can probably be found and stating specifically the facts

1 See ECF No. 8. 2 Id. at 2. 3 Fed. R. Civ. P. 4(h)(1)(A). 4 Id. 4(e)(1). 5 See ECF No. 4. showing that service has been attempted.”6 Plaintiff provided no such statement in his motion. However, to the extent that Plaintiff seeks to serve Defendants via certified mail, he is already permitted to do so under Texas law.7 New York allows for service by other means if service by regular means is “impracticable.”8 The plaintiff “must make some showing that the other prescribed methods of

service could not be made.”9 Plaintiff has not explained why it is impracticable for him to serve Defendants via the methods laid out in New York law.10 For the foregoing reasons, the Court will deny Plaintiff’s motion for alternative service [ECF No. 8]. Plaintiff filed this case on May 12, 2025.11 He had ninety days to serve Defendants,12 and the Court has already granted him one extension of the deadline for service. That deadline has passed, and Plaintiff has not served Defendants. Under the Federal Rules of Civil Procedure, “the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time.”13 The court must extend the time for service if the plaintiff “shows good cause for the failure.”14 Therefore,

the Court orders Plaintiff to show cause why he has failed to effect service of process by

6 Tex. R. Civ. P. 106(b). 7 Id. 106(a)(2). For a corporation, such service must be made on “the corporation’s registered agent, president, or vice president.” Henderson v. Texas, 672 F. App’x 383, 385 (5th Cir. 2016) (citing Tex. Bus. Orgs. Code §§ 5.201, 5.255(1)). Service should be made by the clerk of the court in which the case is pending. Perkins v. S&R Gold & Silver Exch., LLC, No. 3:21-CV-1437-L, 2022 WL 658563, at *2 (N.D. Tex. Mar. 4, 2022). 8 N.Y. C.P.L.R. §§ 308(5), 311(b). 9 David v. Total Identity Corp., 50 A.D.3d 1484, 1485 (N.Y. App. Div. 2008) (quoting Markoff v. S. Nassau Cmty. Hosp., 91 A.D.2d 1064, 1065 (N.Y. App. Div. 1983)). 10 See N.Y. C.P.L.R. §§ 308, 311(a); N.Y. Bus. Corp. Law § 306. 11 See ECF No. 1. 12 Fed. R. Civ. P. 4(m). 13 Id. 14 Id. November 5, 2025. Failure to comply with this Order will result in the dismissal of this case under Fed. R. Civ. P. 4(m) without further notice. SO ORDERED. SIGNED and ENTERED on October 6, 2025.

LEON SCHYDLOWER UNITED STATES DISTRICT JUDGE