CitiFinancial Servicing, LLC v. Poythress et al
ORDER granting in part and denying in part 10 Motion for Default Judgment. The court construes the Application as a motion for entry of default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. Default is entered as to Dorman S. Po ythress and Sharon A. Keyes only; and the Plaintiff shall file a motion for leave to file an amended complaint with the correct name of Carteret Urgent & Family Care Center, along with a proposed summons, no later than March 9, 2017. Counsel should read the order in its entirety for further information. Signed by Senior Judge James C. Fox on 2/23/2017. (Edwards, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
CITIFINANCIAL SERVICINGS, LLC,
DORMAN S. POYTHRESS, SHARON A.
KEYES, as Personal Representative of the
Estate of Edith Mary Aliberti, CARTERET
URGENT & FAMILY CARE CENTER
and UNITED STATES OF AMERICA, by
and through its agency the Internal Revenue
Before the court is Plaintiffs Application to Court for Entry of Default Judgment as to
Defendants Dorman S. Poythress, Sharon A. Keyes, and Carteret Urgentcare Center, P.A.
("Application") [DE 10]. The court construes the Application as a motion for entry of default
pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.
Plaintiff initiated this action by filing a complaint in Craven County Superior Court,
naming as defendants Dorman S. Poythress, Sharon Keyes, as personal representative of the
Estate of Edith Mary Aliberti, Carteret Urgent & Family Care Center, and the United States of
America, by and through its agency the Internal Revenue Service. In the complaint, Plaintiff
seeks, inter alia: (1) an order and judgment to reform the legal description in the a deed of trust;
(2) a judgment declaring Poythress owns the property subject to Plaintiffs deed of trust; (3) a
judgment that Aliberti's lien has been satisfied/canceled of record; and (4) a judgment that the
liens of the United States of America and Carteret Urgent & Family Care Center are subordinate
to Plaintiffs deed of trust. See Compl. [DE 1-2]. The United States filed a Notice of Removal
[DE 1] in this court on July 11 , 2016 pursuant to 28 U.S.C. §§ 1442(a) and 1444, and after
receiving an extension of time, timely filed its answer [DE 8] on August 9, 2016. To date,
Poythress, Keyes and Carteret Urgent & Family Care Center have not entered an appearance in
Attached to Plaintiffs Application is an affidavit of service advising of the purported
service on Poythress, Keyes and Carteret Urgent & Family Care Center. [DE 9] . Upon review,
the court finds Plaintiff effected proper service on Poythress and Keyes in accordance with N.C.
Gen. Stat.§ 1A-1 , Rule 4(1)(d) and filed proof of that process in accordance with N.C. Gen. Stat.
§ 1-75.10(a). See Deborah Hatcher Aff. Serv. ("Hatcher Aff.")
3-6 & Exs. 1-2 [DE-9]; see
also Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 350 (1999) (explaining proper
service of process is necessary for the court to exercise personal jurisdiction over a defendant).
As both Poythress and Keyes failed to appear, "plead or otherwise defend," default shall be
entered as to these defendants. FED. R. C!V. P. 55(a).
The court finds, however, that Plaintiff has not effected proper service on Carteret Urgent
& Family Care Center due to the discrepancy between defendant's name listed on the complaint
and in the affidavit of service. Cf Compl. (identifying defendant as "Carteret Urgent & Family
Care Center") with Hatcher Aff. (identifying defendant as "Carteret Urgentcare Center, P.A. ").
Although service of process is not defective "simply because the complaint misnames the
defendant in some insignificant way," Morrel v. Nationwide Mut. Fire Ins. Co., 188 F.3d 218,
224 (4th Cir. 1999), the discrepancy between the names in the complaint and the affidavit of
service does not amount to a mere misnomer. Cf id. (holding that service of process was valid
where plaintiff failed to include the abbreviation "Inc." after a defendant's name) .
For the foregoing reasons, it is ORDERED as follows:
(1) Plaintiffs Application [DE 10] is ALLOWED IN PART and DENIED IN PART;
(2) Default is entered as to Dorman S. Poythress and Sharon A. Keyes only; and
(3) Plaintiff shall file a motion for leave to file an amended complaint with the correct name
of Carteret Urgent & Family Care Center, along with a proposed summons, no later than
March 9, 2017.
This the 23rd day of February, 2017.
Senior United States District Judge
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