Court of Appeals of Tennessee.

April MILLER, et al.

v.

NORTHLAND INSURANCE COMPANY.

 

No. M2013–00572–COA–R3–CV.

Feb. 18, 2014 Session.

April 29, 2014.

 

Appeal from the Circuit Court for Warren County, No. 3842; Larry B. Stanley, Jr., Judge.

D. Michael Kress, II, Sparta, Tennessee, for the appellant, April and Roger Miller.

 

B. Thomas Hickey, Jr., Chattanooga, Tennessee and Scott W. McMickle and Jon M. Hughes, Alpharetta, Georgia, for the appellee, Northland Insurance Company.

 

ANDY D. BENNETT, J., delivered the opinion of the court, in which BEN H. CANTRELL, SR. J., and RICHARD H. DINKINS, J., joined.

 

OPINION

ANDY D. BENNETT, J.

*1 A commercial truck driver was injured while sitting in the passenger seat with another person driving. The question presented is whether the passenger qualified as an employee and was, therefore, excluded from benefits under the trucking company’s liability insurance policy. We agree with the trial court’s conclusion that the passenger was an employee when the accident occurred.

 

FACTUAL AND PROCEDURAL BACKGROUND

Refa Watley is the owner of Refa Watley Trucking (“RWT”), a federally authorized motor carrier. On December 4, 2007, in the State of New York, a truck owned by RWT was in an accident. The truck was driven by Lewis Watley; April Miller was in the passenger seat. April Miller sustained catastrophic injuries. She sought benefits under RWT’s liability policy, issued by Northland Insurance Company, but was denied coverage with the exception of New York’s “no fault” benefits in the amount of $50,000.

 

April Miller and her husband filed this declaratory judgment action against Northland seeking a determination that she “constituted [a] non-employee, independent contractor at the time of the accident and alleged injuries, such that any injuries that the Plaintiffs have been shown to suffer, together with all medical expenses related thereto, are insured and covered” by Northland’s commercial motor carrier liability insurance policy.

 

The case was initially removed to federal district court and then remanded back to the Circuit Court of Warren County. After completion of discovery, Northland filed a motion for summary judgment, on September 10, 2012, in which it asserted that there was no coverage under its policy pursuant to the policy’s employee exclusions because April Miller and Lewis Watley were both employees of RWT. In support of its motion, Northland filed a statement of undisputed material facts and exhibits; Northland subsequently filed additional statements of undisputed material facts and exhibits.

 

The court held a hearing on January 28, 2013 at which it heard arguments from both sides. On February 1, 2013, the court entered an order granting Northland’s motion for summary judgment. The court concluded that April Miller was an “employee” of RWT under the applicable definition at 49 C.F.R. § 390.5, which includes independent contractors.FN1 The court therefore held that April Miller was not covered pursuant to this policy exclusion. Ms. Miller then filed this appeal.

 

FN1. The court also held that April Miller was an independent contractor based upon the various factors used to distinguish an independent contractor and an employee under Tennessee law. For purposes of this appeal, we need not address this holding.

 

ISSUE ON APPEAL

The determinative issue in this appeal is whether the trial court correctly held that April Miller is excluded from coverage under the terms of the Northland policy because she qualified as an “employee” under the applicable definition.FN2

 

FN2. Although Northland also argues that the trial court erred in finding Ms. Miller to be an independent contractor under Tennessee common law, we have determined that we need not address this issue in order to decide this case. The applicable definition of “employee” is the definition used in the Northland policy. The appropriate status for Ms. Miller under Tennessee common law is irrelevant to the outcome of this case and, therefore, we decline to address that question.

 

STANDARD OF REVIEW

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04. Summary judgments do not enjoy a presumption of correctness on appeal. BellSouth Adver. & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn.2003). We consider the evidence in the light most favorable to the non-moving party and resolve all inferences in that party’s favor.   Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn.2002). When reviewing the evidence, we must determine whether factual disputes exist. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn.1993). If a factual dispute exists, we must determine whether the fact is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact creates a genuine issue for trial. Id.; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn.Ct.App.1998). To shift the burden of production to the nonmoving party who bears the burden of proof at trial, the moving party must negate an element of the opposing party’s claim or “show that the nonmoving party cannot prove an essential element of the claim at trial.” Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8–9 (Tenn.2008).FN3

 

FN3. Tennessee Code Annotated section 20–16–101 (2011), a provision that is intended to replace the summary judgment standard adopted in Hannan, is inapplicable to this case. See Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 25 n. 2 (Tenn.2011) (noting that section 20–16–101 is only applicable to actions filed on or after July 1, 2011). The Millers filed this declaratory judgment action on November 30, 2010.

 

*2 When we must interpret the meaning of a statute, our review is de novo without deference to the decision of the trial court. Estate of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn.2011). Questions regarding the interpretation of written contracts involve legal issues. Merrimack Mut. Fire Ins. Co. v. Batts, 59 S.W.3d 142, 147 (Tenn.Ct.App.2001). Insurance policies are contracts subject to the same rules of construction used to interpret other types of contracts. McKimm v. Bell, 790 S.W.2d 526, 527 (Tenn.1990); Merrimack, 59 S.W.3d at 148.

 

ANALYSIS

The Northland commercial liability insurance policy issued to RWT includes the following relevant exclusions:

 

4. Employee Indemnification and Employer’s Liability

 

“Bodily injury” to:

 

a. An “employee” of the “insured” arising out of and in the course of:

 

(1) Employment by the “insured”; or

 

(2) Performing the duties related to the conduct of the “insured’s” business; or …

 

5. Fellow Employee

 

“Bodily injury” to any fellow “employee” of the “insured” arising out of and in the course of the fellow “employee’s” employment, or while performing duties related to the conduct of your business.

 

The policy also includes an MCS– 90 Endorsement,FN4 which states, in pertinent part:

 

FN4. “MCS” stands for “Motor Carrier Policies.”

 

The insurance policy to which this endorsement is attached provides automobile liability insurance and is amended to assure compliance by the insured, within the limits stated herein, as a motor carrier of property, with Sections 29 and 30 of the Motor Carrier Act of 1980 and the rules and regulations of the Federal Motor Carrier Safety Administration (FMCSA).

 

Under federal law, motor carriers engaged in interstate commerce must procure at least a minimum level of public liability insurance. See 49 U.S.C. § 13906; 49 C.F.R. § 387.1 et seq. The purpose of this requirement is “to ensure that a financially responsible party will be available to compensate members of the public injured in a collision with a commercial motor vehicle.”   Consumers Cnty. Mut. Ins. Co. v. P.W. & Sons Trucking, Inc., 307 F.3d 362, 366 (5th Cir.2002). There is a substantial body of case law applying the federal regulatory laws to the interpretation of these commercial liability policies. See, e.g., Gramercy Ins. Co. v. Expeditor’s Express, Inc., No. 3:12–cv–509, 2013 WL 3761310, at *4 (M.D.Tenn. July 16, 2013); Lancer Ins. Co. v. Newman Specialized Carriers, Inc., 903 F.Supp.2d 1272, 1278 (N. D . Ala.2012); United Fin. Cas. Co. v. Abe Hershberger & Sons Trucking Ltd., No. 11AP–629, 2012 WL 457715, at *3 (Ohio Ct.App. Feb. 14, 2012).FN5

 

FN5. In their brief, the Millers acknowledge that the State of Tennessee has adopted the federal motor carrier safety regulations. See Tenn. Comp. R. & Reg. 1340–06–01–.08.

 

The MCS Endorsement further states that the insurance provided for public liability “does not apply to injury to or death of the insured’s employees while engaged in the course of their employment….” Similarly, the federal regulations do not require motor carriers to obtain coverage for “injury to or death of [their] employees while engaged in the course of their employment….” 49 C.F.R. § 387.15. Thus, under the policy and the federal law, the key question is whether Ms. Miller was an “employee” of RWT at the time of the accident.

 

*3 The evidence is undisputed that Ms. Miller was asleep in the passenger seat at the time of the accident. She and the driver, Mr. Watley, departed from Tennessee with a load to be delivered to four stops, the first being in western New York. Mr. Watley and Ms. Miller were sharing the driving responsibilities. Ms. Miller argues that, because she was not driving the truck, she was not acting as an employee at the time of the accident. In addition, she argues that she was an independent contractor, not an employee. The applicable definition of “employee” under the federal regulations provides as follows:

 

[A]ny individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial vehicle ), a mechanic, and a freight handler.

 

49 C.F.R. § 390.5 (emphasis added). We must determine whether Ms. Miller fits this definition—in particular, whether, even if she were an independent contractor under Tennessee law, she qualifies as an “employee” here because she was “in the course of operating a commercial vehicle.”

 

A number of cases have addressed the application of this definition to a passenger in the truck and determined that a passenger who is a co-driver qualifies as an “employee.” In White v. Excalibur Ins. Co, 599 F.2d 50 (5th Cir.1979), Terry Wright and his father worked for O.D. Crawford as drivers, hauling merchandise for Superior Trucking Company pursuant to a lease agreement. White, 599 F.2d at 51–52. At the time of the accident, Wright was asleep in the cab; he died in the collision. Id. at 52. Wright’s mother, Doreen White, brought suit against Superior’s insurer, but the district court held that Wright was, “by virtue of federal law, a statutory employee of Superior.” Id. The court of appeals agreed with this result and reasoned as follows:

 

Motor carriers had attempted to immunize themselves from the negligence of the drivers who operated their vehicles by making them all nominally “independent contractors.” See generally Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 1975, 423 U.S. 28, 96 S.Ct. 229, 46 L.Ed.2d 169; American Trucking Associations, Inc. v. United States, 1953, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337; Alford v. Major, 7 Cir.1972, 470 F.2d 132. In order to be sure that the public was protected from the torts of these frequently insolvent operators, Congress in 1956 adopted amendments to the Interstate Motor Common Carrier Act requiring a motor carrier to assume “full direction and control” of leased vehicles. 49 U.S.C. § 304(e); 49 C.F.R. § 1057.4(a)(4). See H.R.Rep. No. 2425, 84th Cong., 2d Sess. (1956), Reprinted in (1956) U.S.Code Cong. & Admin. News, pp. 4304, 4307. Because the carrier now has both a legal right and duty to control vehicles operated for its benefit, the employees of the vehicle-lessor are deemed statutory employees of the lessee-carrier to the extent necessary to insure the carrier’s responsibility for the public safety just as if the lessee-carrier were the owner of the vehicles. Simmons v. King, 5 Cir.1973, 478 F.2d 857, 867.

 

*4 While Mrs. White appears to concede that Lindsey as driver of the leased vehicle was a statutory employee of Superior, she argues that Wright was not actively engaged in Superior’s business at the time of the accident and therefore was a stranger to the carrier. The distinction sought to be drawn between a driver on duty and operating the vehicle and a driver on duty and sitting on the right hand seat or asleep in the rest compartment is specious. Wright was not in a position comparable to being “at home asleep in his own bed.” He was part of the two-man team actually engaged in operating the vehicle on Superior’s business. The team is indispensable to continual vehicle operation for federal law generally permits each driver to work only ten hours at a time and then to obtain at least eight hours of rest. 49 C.F.R. § 395.3(a) (1977). The activities of each of the pair during a single driving stint, including his rest period, are clearly within the course of his employment. We see no reason to distinguish Wright from Lindsey for purposes of his relationship to Superior merely because it was Lindsey’s turn at the wheel. Had Wright not been asleep while resting and had he committed some tort, such as negligently tossing an object from the truck window injuring a pedestrian, Superior would have been liable for his acts. We therefore conclude that both drivers were statutory employees of Superior within the meaning of 49 U.S.C. § 304(e).

 

Id. at 52–53 (citations omitted) (emphasis added). Other cases involving co-drivers who were sitting in the passenger seat or resting at the time of the accident have reached the same result. See Ooida Risk Retention Grp., Inc. v. Williams, 579 F.3d 469, 476 (5th Cir.2009); Consumers Cnty., 307 F.3d at 366–67; United Fin., 2012 WL 457715, at *5 (“Nothing in section 390.5 limits an independent contractor’s status as a statutory employee to times when the individual is actually operating the commercial motor vehicle.”); Basha v. Ghalib, No. 07AP–963, 2008 WL 3199464, at *5 (Ohio Ct.App.2008).

 

Based upon these authorities and the reasoning upon which they rely, we must conclude that Ms. Miller was an “employee,” and therefore excluded from coverage by the policy provisions quoted above.FN6

 

FN6. Northland also asserts that Mr. Miller should be deemed an employee of RWT based upon her own admissions to the company when she applied for no fault benefits pursuant to New York law. In light of our decision here, we need not consider this argument.

 

Ms. Miller also asserts that the trial court erred in considering the definition of “employee” contained in the insurance contract. The contract itself, however, does not include a comprehensive definition. Rather, the contract specifies only that “[e]mployee” includes a “leased worker,” but “does not include a “temporary worker.” These provisions do not provide any guidance under the circumstances of this case. Ms. Miller further urges this court to rely solely upon Tennessee law because Tenn.Code Ann. § 56–7–102 provides, in part, that insurance contracts issued by insurance companies doing business within this state shall be “construed solely according to the laws of this state.” Our interpretation does not conflict with Tennessee law as the contract itself includes an endorsement assuring compliance with federal law. Moreover, the definitions in Tennessee’s Uniform Classified and Commercial Driver License Act, Tenn.Code Ann. §§ 55–50–101–55–50–805, cited by Ms. Miller, govern the licensing of vehicles in this state and have no application to the situation here. We find no merit in Ms. Miller’s arguments.

 

CONCLUSION

*5 For the foregoing reasons, we affirm the trial court’s decision. Costs of the appeal shall be assessed against the appellants, and execution may issue if necessary.

United States District Court,

N.D. Texas,

Fort Worth Division.

Dianne McINTYRE, Plaintiff,

v.

ROLY’S TRUCKING, INC., et al., Defendants.

 

No. 4:14–CV–193–A.

Signed April 29, 2014.

 

Dianne McIntyre, Benbrook, TX, pro se.

 

MEMORANDUM OPINION and ORDER

JOHN McBRYDE, District Judge.

*1 Now before the court is the above-captioned action where plaintiff is Dianne McIntyre and defendants are Roly’s Trucking, Inc. (“Roly’s”); Rolando Garcia (“Rolando”), in his official and individual capacities; Iliana Garcia (“Iliana”); Edward L. Justice (“Justice”), in his official and individual capacities; Aaron’s Distribution Warehouse (“Aaron’s”), a subsidiary of Aaron’s Inc.; Chris Page (“Page”), in his official and individual capacities; Tuesday Morning Corporation (“Tuesday Morning”); and, Cheryl Bailey (“Bailey”), in her official and individual capacities.

 

Plaintiff was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1). The court routinely reviews complaints such as plaintiff’s before ordering service of process to determine whether the court’s jurisdiction has been properly invoked and whether the complaint, or any portion thereof, fails to state a claim upon which relief may be granted, in light of the court’s inherent authority to dismiss a complaint on its own motion for failure to state a claim. See Carroll v. Fort James Corp., 470 F.3d 1171, 1176–77 (5th Cir.2006). Having now reviewed the allegations in plaintiff’s complaint, the court has determined that such grounds exist as to certain defendants and claims, as set forth herein.FN1

 

FN1. The court recognizes that sua sponte dismissal typically involves notice to the plaintiff and an opportunity to respond. Lozano v. Ocwen Fed. Bank. FSB. 489 F.3d 636, 643 (5th Cir.2007). However, the nature of the claims and defendants dismissed are such that the court can think of nothing plaintiff could offer by way of a response that would affect the dismissal. Accordingly, the court can see nothing to be gained by affording plaintiff an opportunity to respond or file an amended complaint.

 

To briefly sum up the allegations of the complaint, beginning March 26, 2012, plaintiff was employed by Roly’s as a truck driver. Rolando is alleged to be the president/director of Roly’s. The complaint describes a number of incidents that allegedly occurred during the period of plaintiff’s employment, ending with the termination by Roly’s of plaintiff’s employment on July 17, 2013. Plaintiff asserted claims and causes of action for disparate treatment pursuant to Title VII and the Age Discrimination in Employment Act CADEA”); retaliation pursuant to Title VII; race discrimination and retaliation pursuant to 42 U.S.C. § 1981; hostile and abusive work environment pursuant to Title VII and § 1981; and, violation of her right to equal protection pursuant to 42 U.S.C. § 1983.

 

II.

Dismissal of Certain Claims and Defendants

A. Claim Pursuant to 42 U.S.C. § 1983

To allege a claim pursuant to § 1983, plaintiff “must allege facts tending to show (1) that [s]he has been deprived of a right secured by the Constitution and the laws of the United States, and (2) that the deprivation was caused by a person or persons acting under color of state law.” Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir.1999) (internal quotation marks and citation omitted). Here, each of the defendants is a private individual or entity. When determining liability under § 1983, actions by a private party can be considered “state action” only where the challenged conduct “may be fairly attributable to the State.” Id. Courts have applied a number of tests to determine if certain actions by a private party meet the “state action” standard. See id. at 241–42. The court need not elaborate on or apply any of the tests because plaintiff has alleged no facts that would lead to a conclusion that any of the named defendants could be considered an entity whose conduct may be attributed to the state. Accordingly, all of plaintiff’s claims under § 1983 must be dismissed.

 

B. Claims Against Iliana

*2 Plaintiff alleged that in June 2013, she completed a sick leave request form and gave it to Justice, “who was supposed to send it to Iliana Garcia, in California for approval.” Compl. at 7. However, Justice purportedly retaliated against plaintiff by failing to send the form to Iliana. No further mention is made of Iliana in the remainder of the complaint. This single reference fails to allege any actionable conduct on the part of Iliana, and all claims asserted against Iliana are dismissed.

 

C. Claims Against Aaron’s, Page, Tuesday Morning, and Bailey

 

1. ADEA and Title VII Claims

 

To impose liability under Title VII or the ADEA requires, as a threshold matter, an employment relationship between the plaintiff and defendant. See Deal v. State Farm Cnty. Mut. Ins. Co., 5 F.3d 117, 118 n. 2 (5th Cir.1993). Here, only Roly’s is alleged to be plaintiff’s employer. Aaron’s and Tuesday Morning are alleged to be Roly’s customers, while Page and Bailey are employees of Aaron’s and Tuesday Morning, respectively. Absent any employment relationship between plaintiff and Aaron’s, Page, Tuesday Morning, or Bailey, plaintiff cannot assert claims against those defendants pursuant to Title VII or the ADEA.

 

2. Claims Pursuant to 42 U.S.C. § 1981

It is unclear if plaintiff intended to assert her race discrimination and retaliation claims under § 1981 against Aaron’s, Page, Tuesday Morning, and Bailey.FN2 Section 1981 provides that all persons shall have the right “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property….” 42 U.S.C. § 1981(a). To establish a claim pursuant to § 1981 requires plaintiff to show that: (1) she is a member of a racial minority; (2) the defendant intended to discriminate against her on the basis of race; and, (3) the discrimination concerned one or more of the activities enumerated in the statute-in this case, the making and enforcing of a contract. Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir.1997); Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir.1994). Unlike Title VII or the ADEA, 42 U.S.C. § 1981 does not limit claims only to statutory “employers.”

 

FN2. Plaintiff also asserted a claim of hostile and abusive work environment pursuant to Title VII and 42 U.S.C. § 1981, but that claim appears directed solely against Rolando Garcia.

 

In the employment context, the Fifth Circuit has recognized a right of recovery under § 1981 against individual defendants under certain circumstances; for example, where an individual defendant was “essentially the same as the State for the purposes of the complained-of conduct.” Foley v. Univ. of Houston Sys., 355 F.3d 333, 337–38 (5th Cir.2003) (internal quotation marks omitted) (discussing cases). However, the court has found no Fifth Circuit case expanding race discrimination and retaliation claims under § 1981 in the employment context to third parties who are not in some form of employment relationship with the plaintiff as employer, coworker, or supervisor. Nor does it appear likely that the Fifth Circuit would recognize such a claim. See, e.g., Bellows, 118 F.3d at 274; James v. Parish, 421 F. App’X 469, 470 (5th Cir.2011).FN3

 

FN3. The court recognizes that this unpublished decision is not binding precedent. Nevertheless, the court finds its holding instructive in this action.

 

*3 Even if the Fifth Circuit were to do so, however, plaintiff has failed to allege sufficient factual allegations against Aaron’s, Page, Tuesday Morning, or Bailey to sustain a claim pursuant to § 1981. As to Page, plaintiff alleged that he made her wait four to six hours at the loading docks before loading her truck, refused to allow her to use the women’s restroom in the main office, and made derogatory comments concerning female drivers. Plaintiff also alleged that Page sent an email to Justice and other Roly’s employees asking that they not send plaintiff to pick up loads due to complaints about her. No facts are alleged to show that any of the aforementioned actions were taken with an intent to discriminate against plaintiff because of her race.FN4

 

FN4. Instead, it appears plaintiffs allegations against Page are that he took all of the described actions because of her gender.

 

Similarly, the allegations against Bailey stem from a dispute between plaintiff and dispatchers at Tuesday Morning, Bailey’s employer, concerning plaintiff’s purported failure to follow that company’s policies and procedures pertaining to picking up and dropping off loads. Plaintiff admitted she wrote to Tuesday Morning’s human resource department questioning that company’s policies and procedures, even though Tuesday Morning was not her employer. Bailey informed Justice in an email that plaintiff was not following procedures for picking up empty trailers, and asked that plaintiff not return to Tuesday Morning because she was “obnoxious, rude, had a bad attitude, and … was accusative.” Compl. at 14. Nothing is alleged to show that Bailey ever did or said anything to plaintiff that could be construed as an intent to discriminate against plaintiff because of her race.FN5

 

FN5. Plaintiff claims that Page allowed male drivers of other races to load their trucks on time without making them wait; as to Bailey, plaintiff alleged that male drivers of other races refused to take or pick up loads or empty trailers from Tuesday Morning, but were not disciplined. These broad, conclusory assertions have no factual support in the complaint and are insufficient to establish any discriminatory treatment towards plaintiff on the basis of race. See Dickerson v. O’Neill, 73 F. App’x 84, *2 (5th Cir.2003) (per suriam) (conclusory assertions, or labels and conclusions, insufficient to state a claim of discrimination under § 1981); Malik v. Continental Airlines, Inc., 305 F. App’x. 165, 169 (same).

 

To state a claim of retaliation under § 1981 requires a showing that plaintiff engaged in protected activity, she suffered an adverse employment action, and a causal connection between the two. Foley, 355 F.3d at 339. Here, the only protected activity alleged by plaintiff is that she filed with the EEOC two charges of discrimination, which she attached to the complaint. Neither of the charges identifies or names Page, Aaron’s, Bailey, or Tuesday Morning in any manner, nor do either of the charges allege anything against any of those defendants. Also absent from the complaint is any contention that Page, Aaron’s, Bailey, or Tuesday Morning were aware that plaintiff filed such charges. Hence, plaintiff has failed to allege any protected activity that could form the basis of a retaliation claim against Page, Aaron’s, Bailey, or Tuesday Morning.

 

To the extent plaintiff intended to assert any claims pursuant to 42 U.S.C. § 1981 against Page, Aaron’s, Bailey, or Tuesday Morning, those claims are dismissed.

 

III.

Service on Remaining Defendants

The result of the foregoing discussion is that the only defendants remaining in this action are Roly’s, Rolando, and Justice.

 

The court finds that, pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure, plaintiff is entitled to have process served on Roly’s, Rolando, and Justice by the United States Marshal for the Northern District of Texas. Rochon v. Dawson, 828 F.2d 1107, 1109–10 (5th Cir.1987). The court further finds that, in order to serve the process, the Marshal will need one form 285 and two summons forms to be filled out by plaintiff for each of the defendants, Roly’s, Rolando, and Justice. The court is directing the Clerk to provide those forms to plaintiff, who is to fill them out and return them to the clerk. The clerk will then forward the forms, along with a copy of this order and the complaint attached to each, to the United States Marshal for the Northern District of Texas for service.

 

*4 The court ORDERS that the clerk mail to plaintiff appropriate and sufficient summons forms to facilitate service of the summons and complaint on Roly’s, Rolando, and Justice.

 

The court further ORDERS that: Plaintiff shall (a) complete the forms and return them to the clerk by May 29, 2014, and (b) at the same time, provide the clerk a document providing the name and title of the person to whom the process can be delivered in order to accomplish effective service of process on Roly’s, Rolando, and Justice, and the address or addresses at which such persons can be located by the United States Marshal for service of process on Roly’s, Rolando, and Justice. Failure of plaintiff to timely do the things described in the immediately preceding sentence in this order could result in the dismissal of this action without further notice.

 

The court further ORDERS that, upon receipt of the items described in the immediately preceding paragraph of this order, the clerk shall issue the proper number of summons, with a copy of this order and the complaint attached to each, for service on Roly’s, Rolando, and Justice, and shall deliver them, along with the document described in the (b) part of the immediately preceding paragraph of this order, to the United States Marshal for the Northern District of Texas for service on Roly’s, Rolando, and Justice.

 

The court further ORDERS that, upon receipt of such process papers by the United States Marshal for the Northern District of Texas, the Marshal shall serve them on Roly’s, Rolando, and Justice.

 

The court further ORDERS that all claims and causes of action asserted by plaintiff, Dianne Mclntyre, against defendants Iliana, Page, Aaron’s, Bailey, and Tuesday Morning in the above captioned action be, and are hereby, dismissed with prejudice.

 

The court determines that there is no just reason for delay-in, and hereby directs, entry of final judgment as to such dismissals.

 

The court further ORDERS that plaintiff’s claim pursuant to 42 U.S.C. § 1983 be, and is hereby, dismissed as to all defendants.