Opinion
1:01CV724
July 8, 2002
MEMORANDUM ORDER
Defendant Jackie Barham filed a Motion to Dismiss [Doc. # 6] and a Motion to Strike Affidavits of Service and Renewed Motion to Dismiss [Doc. # 14] pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure. Defendant's first Motion to Dismiss [Doc. # 14] is MOOT. The Court has reviewed the documents filed with respect to the Motion to Strike Affidavits of Service and Renewed Motion to Dismiss and has determined that more information may be required from the parties before a ruling will be made. As discussed further below, Defendant Barham will have ten (10) days from the filing of this Order to submit further documents or case law required by this Court. Plaintiff will then have ten (10) days to respond to Defendant's submission.
I.
On July 24, 2001, Plaintiff Tomesha Williamson filed this action alleging employment discrimination and other causes of action against her former employer Galloway Buick and two persons employed by Galloway at times during Plaintiff's employment, Defendants Jackie Barham and William Edmundson. Sometime prior to September 13, 2001, service was attempted upon Defendants Barham and Edmundson by mailing copies of the Summons and Complaint to Galloway Buick, the former employer of Barham and Edmundson. At that time, neither Mr. Barham nor Mr. Edmundson signed for delivery of the Summons and Complaint. In their first motion to dismiss, Defendants Barham and Edmundson moved for dismissal under Rule 12(b)(5) for improper service, arguing in their motion that they no longer worked for Galloway Buick, they did not live on the premises and service was not accepted by anyone authorized by them to receive service on their behalf. Plaintiff argued that the motion to dismiss was not ripe because 120 days had not yet passed since the filing of the complaint. According to Plaintiff, she had until on or about November 24, 2001 to properly serve the Defendants. Because Defendants filed a renewed motion to dismiss after 120 days had passed, their original motion to dismiss is MOOT.
Plaintiff attempted service again on November 20, 2001, by mailing Affidavits of Service to Galloway Buick, and Barham and Edmundson again alleged that they did not personally sign for delivery of the Summons and Complaint and did not authorize anyone there to do so on their behalf. The return receipt was signed by Myanda LaFone, and Plaintiff submitted an Affidavit of Service to this Court on November 20, 2001 stating that service was effective. On December 13, 2001, Defendants Barham and Edmundson moved to strike the Affidavits of Service and renewed their motion to dismiss. Plaintiff did not respond to the motion to strike or motion to dismiss. On or about April 15, 2002, Plaintiff attempted service again on Defendant Edmundson at a different address. Plaintiff submitted a new Affidavit of Service as to William Edmundson on April 23, 2002 . Defendant Edmundson answered Plaintiff's complaint on May 7, 2002 and withdrew his motion to dismiss. As of the date of this Order, no showing has been made to this Court that Plaintiff has successfully served Defendant Barham.
II.
Defendant Barham contends that the Plaintiff's case should be dismissed under Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficiency of service because Plaintiff Williamson's attempts at service have not been effective and more than 120 days have passed since the complaint was filed in this matter on July 24, 2001. Defendant also contends that Plaintiff has not provided just cause for the delay in service, as required by Rule 4(m).
While some disagreement among the district courts in this Circuit exists as to a court's discretion in extending time for service absent a showing of good cause, the Fourth Circuit has held that a district court must find good cause for the delay in service in order to grant an extension of time in which to effect proper service. Mendez v. Elliot, 45 F.3d 75 (1995) (stating that district courts must find good cause in order to excuse a plaintiff's failure to effect service within 120 days); see Hammad v. Tate Access Floors. Inc., 31 F. Supp.2d 524 (D. Md. 1999) (calling Mendez into question in light of Henderson v. United States, 517 U.S. 654, 116 S.Ct. 1638 (1996), where the Supreme Court interpreted Rule 4(m) to mean that courts have discretion to enlarge the 120-day period ""even if there is no good cause shown'").
Rule 4 of the Federal Rules of Civil Procedure dictates the manner in which a Plaintiff may serve defendants. Rule 4(e) allows service by personal service as outlined in Rule 4(e)(2) or pursuant to the law of the state in which the district court is located. The Federal Rules allow service of an individual by mail only if the Defendant has waived service. Fed.R.Civ.P. 4(e). In North Carolina, a plaintiff may serve an individual by registered or certified mail, or by depositing the summons and complaint with a designated delivery service, return receipt requested and delivering to the addressee. N.C. R. Civ. P. 4(j)(1)(c). In this case, Plaintiff mailed the summons and complaint by registered mail to Defendant Barham's former place of employment. This method of service is not recognized by either the Federal Rules of Civil Procedure or the North Carolina Rules of Civil Procedure.
Defendant Barham has challenged Plaintiff's manner of service because Plaintiff attempted service at Barham's former place of employment. Plaintiff's attorney filed an Affidavit of Service as to Jackie Barham on July 27, 2001, attaching a return receipt signed by Myanda LaFone. In North Carolina, when the plaintiff files an affidavit with the court stating that a copy of the summons and complaint were sent by registered or certified mail, return receipt requested, that the copies were received as evidenced by an attached receipt or other evidence of delivery, and that the receipt or other evidence is attached, a presumption of service exists. N.C. Gen. Stat. § 1-75.10(4); Fender v. Deaton. 503 S.E.2d 707 (N.C.App. 1998) (citing N.C. Gen. Stat. § 1-75.10(4)). Defendant contends that the Affidavit should be struck and his Motion to Dismiss granted because he was no longer an employee at Galloway Buick when service was attempted and he did not authorize anyone at Galloway Buick to accept service on his behalf. Therefore, according to Defendant, the 120 days in which Plaintiff could bring her claims against Defendant Barham, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, have expired, and Plaintiff has not provided good cause for the delay.
Defendant has not provided an affidavit stating that the facts as contained in his brief are correct. While the effectiveness of Plaintiff's service upon the Defendant is in serious question, the case law in North Carolina, combined with the statute, suggests that the facts of the case must be taken into consideration, especially when the Plaintiff files an Affidavit of Service with the Court. Fender, 503 S.E.2d at 709-11 (discussing North Carolina cases involving service of process by mail and evaluating the facts of each case as determinative in the outcome and noting that N.C. Gen. Stat. § 1-75.10(4) states that the "affidavit together with the return receipt signed by the person who received the mail if not the addressee raises a presumption that the person who received the mail and signed the receipt was an agent of the addressee . . . "). If it is Defendant's contention that no factual showing must be made, he must submit authority supporting this position.
If further affidavits need to be filed to support the facts as alleged in the Defendant's brief, Defendant should submit these affidavits. Defendant shall provide this information to the Court within ten (10) days of the filing date of this Order and shall serve the same on the Plaintiff. Plaintiff will then have ten (10) days to respond to the Defendant's submission.