Souther District of Texas ENTERED February 19, 2025 UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION STEALTH ONSITE SOLUTIONS, LLC, § Plaintiff, ; V. § CIVIL ACTION NO. 2:23-CV-00175 E&E, LLC, Defendant. ORDER ADOPTING MEMORANDUM AND RECOMMENDATION Before the Court is Magistrate Judge Mitchel Neurock’s Memorandum and Recommendation (““M&R”), (D.E. 58). The M&R recommends that the Court grant Defendant’s motion to dismiss, (D.E. 51), and dismiss this case without prejudice. Jd. at 1. Plaintiff filed written objections to the MER. (D.E. 60). When a party objects to the findings and recommendations of a magistrate judge, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”

(b)(1)(C). As to any portion for which no objection is filed, a district court reviews for clearly erroneous factual findings and conclusions of law. United States v. Wilson,

(5th Cir. 1989) (per curiam), Plaintiff objects to the M&R’s recommendation that the Court grant Defendant’s motion to dismiss for insufficient service of process and dismiss the case without prejudice, (D.E. 60, p. 3), and asks the Court to modify the ruling because “the [M]agistrate [J]udge’s recommendations are erroneous,” id. at 6. Plaintiff does not point the Court to any flaws in the M&R’s reasoning,!

1 Despite this shortcoming of Plaintiff's objections, the Court considers the objections on the merits. 1/4

See id, at 3-6. Rather, Plaintiff largely reiterates arguments it posed prior to the M&R’s issuance. Compare id. with (D.E. 56, p. 4-10). I. Dismissal for Untimely Service Plaintiff objects to dismiss for untimely service, contending it “can meet the excusable neglect standard.” (D.E. 60, p. 4-5). Plaintiff has not established excusable neglect, “as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Thrasher v. City of Amarillo,

(Sth Cir. 2013) (quoting Winters v. Teledyne Movible Offshore, Inc.,

(Sth Cir. 1985)). Plaintiff does not challenge the M&R’s reasoning on the lack of excusable neglect, and after an independent review, the Court agrees with Magistrate Judge Neurock that Plaintiffs meager actions fall short of demonstrating excusable neglect, much less good cause, for failure to timely serve. (D.E. 58, p. 13). Plaintiff asserts Defendant’s only allegation of prejudice resulting from untimely service is that Defendant has missed the deadline to designate experts, but Plaintiff is amenable to a deadline extension. (D.E. 60, p. 4). Plaintiff then argues that a dismissal “would needlessly burden the parties with additional expense and delay and would postpone the adjudication of the controversy on its merits[,]” which goes against the spirit of Federal Rule of Civil Procedure 1. at 4-5 (citing CytoSport, Inc. v. Cytogenix Sports Laboratories, SBL,

(E.D. Cal. 2010)). These arguments conflict. See

Plaintiff states it would be amenable to extending deadlines to cure potential prejudice to Defendant but then argues against the delay that would . result from dismissal. No matter which remedy the Court provides, adjudication of this matter on the merits must be delayed because Plaintiff did not timely serve Defendant. True, the delay resulting from dismissal might be longer than the delay of extending deadlines. But since Plaintiff has not established excusable neglect in failing to timely serve Defendant, dismissal is the proper

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remedy. The Court OVERRULES this objection. IL. Dismissal for Insufficient Service Plaintiff objects to dismissal for insufficient service.” (D.E. 60, p. 5—6). Plaintiff concedes that “[D]efendant was not properly served[.]” /d@. at 6. Still, Plaintiff raises two arguments against dismissal. First, Plaintiff argues that at least some of the delay in service is attributable to Defendant’s conduct.

The conduct in question: (1) E&J’s counsel indicated he would not accept service on behalf of E&E; and (2) E&E’s authorized agent for service did not respond to Plaintiffs request that E&E waive service of process, (D.E. 56, p. 2). At most, this conduct created a delay in service of thirty-one days. See

(indicating Plaintiff waited thirty-one days for a response to the requested waiver of service). But the summons as to E&E was not issued until September 13, 2024, a full 155 days after the First Amended Complaint, (D.E. 50), was docketed. So even assuming thirty-one of the 155 days was attributable to Defendant’s conduct, Plaintiff still did not seek an issuance of summons as to Defendant E&E until 124 days after filing the First Amended Complaint. Thus, even taking Defendant’s conduct into account, the Court concludes that service was untimely. See FED. R. Civ. P. 4(m) (requiring service “within 90 days after the complaint is filed”). Second, Plaintiff argues “it is reasonably conceivable that the defendant can be served within a short period of time[,] much shorter than requiring the plaintiff to start the entire case over again.” Jd. The Court addressed a similar argument above, see supra at 2, and responds the same here. Plaintiff's attempted service was late before it began and insufficient when performed. Plaintiff's arguments against dismissal are unavailing. The Court OVERRULES this objection.

* Although Plaintiff styles its objection as relating to “insufficient service,” Plaintiff's arguments more sea relate to timeliness of service and the proper remedy for untimely service.

II. Conclusion Having reviewed the proposed findings and conclusions of the M&R, the record, the applicable law, and having made a de novo review of the portions of the M&R to which Plaintiffs objections are directed,

(b)(1}(C), the Court OVERRULES Plaintiff's objections, (D.E. 60), and ADOPTS the findings and conclusions of the M&R, (D.E. 58). Accordingly, the Court: (1) GRANTS Defendant’s motion to dismiss, (D.E. 51); and (2) DISMISSES this case without prejudice. The Court will enter a final judgment separately. SO ORDERED.

UNITED STATES DISTRICT JUDGE

Signed: Corpus Christi, Texas February 442025

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