     Case: 11-20543     Document: 00511840685         Page: 1     Date Filed: 05/01/2012




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                            FILED
                                                                            May 1, 2012
                                     No. 11-20543                          Lyle W. Cayce
                                   Summary Calendar                             Clerk


TAASHEANA QUINN, individually and on behalf of her minor child, S.M.,

                                                  Plaintiffs-Appellants
v.

MAURICE MILLER,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-3983


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Plaintiffs-appellants Taasheana Quinn (“Quinn”), individually and on
behalf of her minor child, S.M., appeal the district court’s dismissal without
prejudice of her lawsuit against defendant-appellee Maurice Miller (“Miller”).
We AFFIRM.




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-20543

             FACTUAL AND PROCEDURAL BACKGROUND
      On October 21, 2010, Quinn filed a lawsuit alleging that Miller failed to
stop at a stop sign while driving and, as a result of his negligence, injured Quinn
and her minor child. On February 16, 2011, Quinn filed notice reflecting that
Miller was personally served at “8700 Broadway, Houston, TX 77061-2262" on
February 15, 2011. On March 23, 2011, Miller filed a motion to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(5) asserting that
personal service was improper. Miller submitted an affidavit attesting that he
had not lived at 8700 Broadway for over a year and a half. Miller’s motion also
sought to dismiss the complaint on grounds that the claim was vague and that
the exemplary damages and attorney’s fees sought were not authorized under
Texas law.
      On the same day the motion was filed, the district court conducted a pre-
trial conference, during which the grounds for Miller’s motion to dismiss were
discussed. The district court expressed that it was inclined to grant Miller’s
motion on the ground of improper service but the court was reluctant to dismiss
the case immediately. Instead, since Quinn conceded that exemplary damages
and attorney’s fees were unavailable and offered to redraft her complaint, the
district court, during the conference, ordered Quinn to file an amended
complaint within two weeks and to serve the amended complaint on Miller
within one month.
      Quinn did not file an amended complaint within two weeks and on April
18, 2011, the district court issued a written order, stating in pertinent part:
             It is hereby ORDERED that on or before April 26,
             2011, Plaintiff Taasheana Quinn shall file either an
             opposition to Defendant Maurice Miller’s Rule 12
             Motion (“Motion”) [ Doc. #6] or an Amended Complaint
             addressing the issue raised in the Motion. Plaintiff is
             cautioned that failure to comply with this Order will
             result in the Motion being granted. It is further

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                                       No. 11-20543

              ORDERED that Defendant shall file any Reply by May
              6, 2011.

(emphases in original). On April 29, 2011, citing Quinn’s failure to file an
opposition to Miller’s motion or an amended complaint, the district court granted
Miller’s motion to dismiss for insufficient service of process and dismissed the
case without prejudice.
       Quinn filed concurrent motions for leave to file an amended complaint and
for reconsideration, as well as a new complaint “for the exact same accident.”
Quinn claimed that she never received the April 18, 2011 order and stated that
her failure to abide by the court’s deadline was due to “a clerical error or
computer problem and the electronic filing systems.” The motion for leave to file
an amended complaint was stricken because it lacked “both a Certificate of
Service and a Certificate of Conference.” The district court also denied the
motion for reconsideration on the basis that Quinn failed to establish any
manifest error in law or fact by the court.
                                     DISCUSSION
       A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency
of the service of process.         The party making service has the burden of
demonstrating its validity when an objection to service is made. Carimi v. Royal
Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). We review a
district court’s dismissal under Rule 12(b)(5) for abuse of discretion. Lindsey v.
United States R.R. Ret. Bd., 101 F.3d 444, 445 (5th Cir. 1996).
       On appeal, Quinn argues that the district court erred in granting Miller’s
motion to dismiss for insufficient service of process and dismissing her case
without prejudice.1       At the pre-trial conference, the district court heard


       1
         Quinn also argues that the district court erred in dismissing her case for failure to
state a claim upon which relief can be granted pursuant to Rule 12(b)(6). It is apparent from
the district court’s order that Rule 12(b)(6) was not the grounds upon which Quinn’s case was

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                                    No. 11-20543

arguments regarding the sufficiency of Quinn’s service of process.           After
reviewing the submission of the process server, which stated that Miller was
personally served at “8700 Broadway,” and Miller’s affidavit, which attested that
he no longer lived at that address, the district court found Miller’s affirmation
persuasive. However, rather than grant Miller’s motion at that time, the district
court provided Quinn with an opportunity to amend her complaint within two
weeks and to serve the amended complaint upon Miller within one month.
Despite Quinn’s failure to amend her complaint within two weeks of the original
oral order, the district court again, this time in a written order, ordered Quinn
to file an amended complaint or opposition to Miller’s motion and provided a new
deadline. The district court also notified Quinn that failure to comply with its
order would result in dismissal of her case. Quinn again failed to respond to the
court’s order and for that reason, her case was dismissed. Accordingly, the
district court did not abuse its discretion in dismissing Quinn’s case pursuant to
Rule 12(b)(5).
      Quinn now argues that she was misled by the district court’s scheduling
order, which ordered that amendments to pleadings be filed by May 6, 2011.
However, the district court clearly explained the meaning of the deadlines to the
parties at the pre-trial conference. After setting forth the deadlines for Quinn
to amend her complaint to remove exemplary damages and attorney’s fees, the
district court summarized, “[s]o it’s a month for the service, two weeks for the
amendment and then I’m going to give a little bit longer period of time for final
amendments in case there’s a need to do further amendments.” Later, the court
further explained, “[s]o I’m going to say the – May 6th is your deadline for
adding new parties and amending. That means you do need to determine if
there’s anybody else out there because it will be very hard to add new parties or



dismissed so we do not address such argument.

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                                   No. 11-20543

get amendments after these dates.” Throughout the conference, the district
court consistently ordered Quinn to submit an amended complaint, redrafted to
reflect the discussions at the conference, within two weeks and stated that May
6, 2011 was the deadline to make any further amendments.
      Quinn also argues for the first time on appeal that she should have been
afforded additional time to perfect service under Federal Rule of Civil Procedure
4(m) because her claims against Miller may be otherwise time-barred and there
is no clear record of delay or evidence of contumacious conduct. See Millan v.
USAA Gen. Indem. Co., 546 F.3d 321, 325-27 (5th Cir. 2008). Even if Quinn’s
failure to adhere to the district court’s orders did not constitute a clear record of
delay, “arguments not raised before the district court are waived and cannot be
raised for the first time on appeal.” Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d
864, 877 (5th Cir. 2009).
      For the foregoing reasons, the district court’s dismissal order is
AFFIRMED.




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