Opinion
1:00CV01249
September 26, 2002
MEMORANDUM OPINION and ORDER
Plaintiff Leroy Alfred Calder filed this action against the Stanly County Board of Education (Board), the Board's members, Superintendent Dr. Jeff Moss, and Principal Robert Patterson alleging that he was wrongfully harassed and removed from his position as the men's varsity baseball coach at South Stanly High School. Plaintiff alleges discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; and the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981. plaintiff further claims breach of contract, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent hiring and retention of supervisors by Defendants.
This matter is before the court on Defendants' Motion to Dismiss as to the Board and Dr. Moss for insufficient service of process. For the reasons set forth below, the motion will be granted.
I. FACTUAL BACKGROUND
Plaintiff started teaching at South Stanly High School in 1972 and became the head coach of the men's varsity baseball team during the 1994-95 academic year. plaintiff received a monetary stipend for coaching, and his teams enjoyed success. In March 1999, Plaintiff experienced a mild heart attack that caused him to miss work. This incident was followed by a slight stroke and knee infection in January 2000, and the discovery of blockage in his carotid artery in March 2000; treatment for the latter episode required hospitalization. Plaintiff did not work during his convalescence.
Mr. Patterson, the principal at South Stanly High School, installed an interim head coach of the men's baseball team for the 2000 season in late March or early April 2000. Citing concerns for Plaintiff's health, Mr. Patterson asked Plaintiff to step down as head coach and offered him an assistant coach position under the new head coach, which plaintiff declined.
In July 2000, Defendant filed a charge with the Equal Employment Opportunity Commission (EEOC) against Stanly County Schools alleging discrimination based on age and perceived disability. The EEOC issued a right-to-sue letter on September 15, 2000, and Plaintiff brought this suit on December 15, 2000.
Plaintiff tried to effect service of process on the Board by leaving a copy of the summons and complaint at the office of Mark T. Lowder, the Board's attorney, on April 11, 2001. The same day, 116 days after filing the complaint, plaintiff tried to effect service on Dr. Moss by leaving a copy of the summons and complaint with Vickie A. Lisk, the secretary in Dr. Moss's office. Neither Mr. Lowder nor Ms. Lisk was in fact authorized to accept service of process on behalf of defendants.
II. DISCUSSION
A. Service of Process Generally
A motion under Federal Rule of Civil procedure 12(b)(5) is the appropriate means for challenging the sufficiency of service of process.Plant Genetic Systems, N.V. v. Ciba Seeds, 933 F. Supp. 519, 526 (M.D.N.C. 1996). A court must grant a defendant's 12(b)(5) motion to dismiss if the plaintiff fails to serve a copy of the summons and complaint in satisfaction of Rule 4 of the Federal Rules of Civil Procedure. Link Group Int'l, L.L.P. v. Toymax (H.K.) Ltd., 127 F. Supp.2d 280, 282 (D. Conn. 2000) (citing Cole v. Aetna Life Cas., 70 F. Supp.2d 106, 109 (D. Conn. 1999)). The party on whose behalf service of process is made bears the burden of proving its validity when challenged. Plant Genetic Systems, 933 F. Supp. at 526; 4A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1083 (3d ed. 2002). Although the technical requirements of service of process should be construed liberally so long as the defendant has actual notice of the lawsuit, the mere fact of actual notice does not excuse plain noncompliance with process requirements. Way v. Brass Motors, Inc., 840 F.2d 303, 306 (5th Cir. 1988) (noting that actual notice "is insufficient to satisfy Rule 4's requirements"); Tart v. Hudgins, 58 F.R.D. 116, 117 (M.D.N.C. 1972) (observing that a liberal interpretation of process requirements "does not mean, however, that the provisions of the Rule may be ignored if the defendant receives actual notice"). A dismissal for insufficient process is without prejudice. Fed.R.Civ.P. 4(m).
B. Service on the Board of Education
Defendants move to dismiss Plaintiff's claims against the Board for insufficiency of process. Plaintiff counters that proper service of process on Principal Patterson was sufficient service as to the Board based on agency principles.
To serve process on "a state, municipal corporation, or other governmental organization," a plaintiff may deliver a copy of the summons and complaint to the entity's "chief executive officer," or effect service as required by the defendant's home state. Fed.R.Civ.P. 4(j)(2). North Carolina provides for service of process upon any "county or city board of education":
(i) by personally delivering a copy of the summons and of the complaint to an officer or director thereof, (ii) by personally delivering a copy of the summons and of the complaint to an agent or attorney-in-fact authorized by appointment or by statute to be served or to accept service in its behalf, (iii) by mailing a copy of the summons and of the complaint. addressed to the officer, director, agent, or attorney-in-fact as specified in (i) and (ii), or (iv) by depositing with a delivery service.
N.C. R. Civ. P. 4(j)(5)(c). These specified requirements "'must be complied with or there is no valid service.'" Long v. Cabarrus Cty. Bd. of Educ., 52 N.C. App. 625, 626, 279 S.E.2d 95, 96 (1981) (quotingBroughton v. DuMont, 43 N.C. App. 512, 514, 259 S.E.2d 361, 363 (1979)). The federal rule "does not provide any alternative to delivery upon the chief executive other than service under state law." 4B Wright Miller § 1109 n. 5.
Here, Plaintiff attempted to serve the Board by personally delivering a copy of the summons and complaint to Mr. Lowder, the Board's attorney. (Defs.' Mot. Dismiss Ex. A (Lowder Aff.) at 2.) Plaintiff's method of service failed the first prong of the rule because Mr. Lowder is not the chief operating officer of the Board. To satisfy North Carolina law under the rule's second prong, Plaintiff's personal delivery must have been made to an officer or director of the Board, or to an attorney-in-fact or agent "authorized . . . to be served or to accept service" for the Board. N.C. R. Civ. P. 4(j)(5)(c). Mr. Lowder was neither an officer or director of the Board, nor an agent authorized to accept service for the Board. (Defs.' Mot. Dismiss Ex. A (Lowder Aff.) at 1.) This attempt at service clearly failed to comply strictly with plain statutory requirements and thus was insufficient.
Plaintiff neither disputes the facts of service nor claims that the attempted service of process complied with statutory requirements. Instead, Plaintiff asserts that because the principal of a high school acts as an agent of the Board in its educational functions, service of process on Mr. Patterson was sufficient service for all of the defendants. As noted above, however, the rule requires an agent to be authorized by appointment or by law to accept service. Fed.R.Civ.P. 4(j)(2); N.C. R. Civ. P. 4(j)(5)(c). Plaintiff does not assert that Mr. Patterson was so authorized. In addition, the North Carolina rule "does not provide for substituted personal process on any persons other than those named" in the statute. Johnson v. City of Raleigh, 98 N.C. App. 147, 150, 389 S.E.2d 849, 851 (1990). Accordingly, the court finds Plaintiff's argument to be without merit.
Because personal service was undertaken without regard to the clear requirements for service of process, Defendants' Motion to Dismiss will be granted as to the Board.
C. Service on Dr. Moss
Defendants also move to dismiss the complaint against Superintendent Moss for insufficient service of process. Plaintiff again responds that because Mr. Patterson was served properly, Dr. Moss should remain in the lawsuit under agency principles.
Personal service of process on an individual must be effected by (1) delivering a copy of the summons and complaint to the defendant or a person of suitable age and discretion then residing at the defendant's home, or (2) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. Fed.R.Civ.P. 4(e). Alternatively, a plaintiff may comply with the law of the state in which the district court is located. Id. North Carolina's requirements mirror the federal rule so closely that the two may be viewed as identical for all practical purposes. See N.C. R. Civ. P. 4(j)(1). State law construes these requirements rigidly, and "the prescribed procedures must be followed strictly." Greenup v. Register, 104 N.C. App. 618, 620, 410 S.E.2d 398, 400 (1991).
Here, Plaintiff did not serve Dr. Moss personally. (Defs.' Mot. Dismiss Ex. B (Moss Aff.) at 1.) Instead, plaintiff attempted to effect service on Dr. Moss by delivering an envelope to Dr. Moss's secretary, Ms. Lisk, who was not authorized to accept service on his behalf. (Defs.' Mot. Dismiss Ex. C (Lisk Aff.) at 1, 2.) Plaintiff did not (1) personally deliver the documents to Dr. Moss or to an appropriate person at his home; or (2) personally deliver the documents to an agent authorized to accept service for Dr. Moss. Therefore, Plaintiff's effort at personal delivery failed to satisfy the technical requirements of the rule, regardless of which prong the court applies. In light of this fact, service of process was insufficient.
Plaintiff's counsel again argues that because Mr. Patterson was served properly, "all defendants should remain as defendants under this lawsuit." (Pl.'s Resp. at 3.) Although Plaintiff cites numerous statutes suggesting that Mr. Patterson and Dr. Moss stand in an agency relationship for the purpose of educating children, none of these laws authorize a school principal to accept service of process on behalf of a school superintendent. Absent this authorization, in law or fact, sufficient service on Mr. Patterson does not effect sufficient service on Dr. Moss.
Accordingly, Defendants' Motion to Dismiss as to Dr. Moss will be granted.
IT IS ORDERED that Defendants' Motion to Dismiss is granted without prejudice as to Defendants Stanly County Board of Education and Dr. Jeff Moss [6].