Burton v. HWY 160 Revocable Trust
4:24-cv-00606
| E.D. Tex. | Aug 13, 2025Background
- Plaintiff Stephanie Elam Burton alleges Defendants wrongfully foreclosed on her home, intending to convert it into an assisted living facility.
- Plaintiff asserts claims for misrepresentation and RICO violations against several Defendants associated with the property and entities involved.
- The lawsuit was originally filed in the Northern District of Texas, then transferred to the Eastern District.
- Procedurally, the current dispute concerns whether Defendants were properly served with the lawsuit.
- Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(5), arguing insufficient service of process.
- Plaintiff conceded service was not completed due to bereavement and other challenges, asking for the dismissal motion to be denied and service deadline extended.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal is warranted for late service | Service was delayed due to bereavement, difficulty locating defendants, and counsel issues; seeks more time | Were not properly served within 90-day Rule 4(m) window; seek dismissal | Motion denied; extension for service granted |
| Whether Plaintiff showed 'good cause' for delay | Ongoing personal hardship and proactive explanations demonstrate good cause | No good cause shown; mere delay and ineffective service | Court found Plaintiff showed good cause |
| Whether Defendants suffered prejudice from service delay | Delay did not prejudice Defendants who had actual notice and participated | Service deficiency prejudices their ability to respond/timeliness | No prejudice found to Defendants |
| Court discretion to extend service | Extension appropriate in this situation to permit case to proceed | Court should dismiss for violation of rules | Court exercises discretion to extend |
Key Cases Cited
- Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634 (5th Cir. 1994) (court has broad discretion to dismiss for ineffective service)
- Gartin v. Par Pharm. Cos., Inc., [citation="289 F. App'x 688"] (5th Cir. 2008) (good cause under Rule 4(m) requires more than inadvertence)
- Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011 (5th Cir. 1990) (good cause for service extension demands excusable neglect and good faith)
- Jim Fox Enters., Inc. v. Air France, 664 F.2d 63 (5th Cir. 1981) (dismissal for service issues inappropriate if plaintiff may still comply)
- Millan v. USAA Gen. Indem. Co., 546 F.3d 321 (5th Cir. 2008) (court has discretion to extend service time even absent good cause)