Background
Plaintiffs Glenn and Rhonda Larkins sued multiple corporate defendants for injuries sustained when a derrick tipped over during maintenance. They filed suit on the final day of the statute of limitations but did not complete service of process until approximately fifty days later. The district court dismissed the case, finding the plaintiffs insufficiently diligent in effecting service due to delays in forwarding citations and following up with the process server.
The court’s reasoning
The Fifth Circuit applied Texas law, which permits service outside the limitations period if the plaintiff is diligent. The court held that the district court applied a standard higher than required by Texas law. The record showed that the plaintiffs forwarded citations within days, the process server faced confusion regarding multiple similarly named entities, and the plaintiffs’ law firm was distracted by a courthouse fire and trial in an unrelated case. The court concluded that these factors created a genuine fact question regarding diligence that precluded dismissal as a matter of law.
Texas law requires ordinary diligence—not the highest degree of diligence.
Sharp v. Kroger Texas L.P., 500 S.W.3d 117, 120 (Tex. App.—Hous. [14th Dist.] 2016)
What it means going forward
The ruling reinforces that plaintiffs are not strictly liable for process server delays and that courts must view diligence claims through a fact-intensive lens rather than dismissing cases based on minor or explained delays.