Locust v. Stroud et al

Filing 17

ORDER denying 15 Motion for Default Judgment. The court DIRECTS plaintiff to complete a separate summons for each named defendant and present the summonses to the clerk's office for issuance on or before December 8, 2017. Plaintiff will then have until February 5, 2018, to effect service on all defendants. The court warns plaintiff that if he fails to effect service by that deadline, the court will dismiss the action without prejudice. Signed by Chief Judge James C. Dever III on 11/21/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:17-CV-110-D

ELDER DEFORRORRA LOCUST,
Plaintiff,
v.
DON F. STROUD, et al.,
Defendants.

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ORDER

On August 14, 2017, Elder Deforrorra Locust ("plaintiff' or "Locust"), proceeding prose,
filed an unsigned form complaint together with numerous exhibits. Compl. [D.E. 1], Exs. [D.E. 1-1
through 1-7]. On September 11, 2017, Locust filed a notice of interlocutory appeal [D.E. 7], which
the clerk transmitted to the United States Court of Appeals for the Fourth Circuit [D.E. 8]. On
September 12,2017, Locustfiledpurportedproofs of service [D.E. 9-10]. On September 19,2017,
Locust filed a motion for entry of default as to Christopher Lander, who Locust did not name as a
defendant in his original complaint [D.E. 15]. 1
Locust's proofs of service are defective in numerous ways. Locust must present the
summonses to the clerk who then must sign, seal, and issue the summonses for service on the
defendants. See Fed. R. Civ. P. 4(a)-(b). "A summons which is not signed and sealed by the Clerk
ofthe Court does not confer personal jurisdiction over the defendant." Ayres v. Jacobs & Crumplar.
P.A., 99 F.3d 565,569 (3dCir. 1996); see Omni Capitallnt'l.. Ltd. v. RudolfWolff& Co., 484 U.S.
97, 104 (1987); Lathon v. UNC-Fayetteville State Univ., No. 5:07-CV-105, 2008 WL 60396, at *1
1

Although Locust captioned his request as one "for judgment default[,]" [D.E. 15] 1, the
court construes the motion as one seeking entry of default. See Fed. R. Civ. P. 55(a).

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(E.D.N.C. Jan. 2, 2008) (unpublished). Locust "is responsible for presenting the summons to the
clerk and serving it on the defendants." Trupei v. United States, 304 F. App'x 776, 780 (11th Cir.
2008) (per curiam) (unpublished).
The court lacks personal jurisdiction over the defendants until Locust effects proper service
of process or obtains waivers of service under Rule 4(d).

See,~'

Murphy Bros .. Inc. v. Michetti

Pipe Stringing. Inc., 526 U.S. 344, 350 (1999). Locust's proofs of service indicate that-to the
extent he served any defendant rather than a party he did not name as a defendant in his complaint
-he did so personally. See [D.E. 9] 1; [D.E. 10] 1-4; [D.E. 15] 1-5; [D.E. 15-1] 1-2.2 However,
only a ''person who is at least 18 years old and not a party may serve a summons and complaint."
Fed. R. Civ. P. 4(c)(2); see also N.C. Gen. Stat.§ lA-1, Rule 4(a) ("The complaint and summons
shall be delivered to some proper person for service."). Thus, Locust may not personally attempt to
serve defendants, including by personally placing the summons and complaint in the mail. See, ~'
Constien v. United States, 628 F.3d 1207, 1213-14 (lOth Cir. 2010); Reale v. Wake Cty. Human
Servs., No. 5:11-CV-682-D, 2013 WL 2635181, at *2 (E.D.N.C. June 12, 2013) (unpublished);
Thomas v. Nelms, No. 1:09-CV-491, 2013 WL 593419, at *1-2 (M.D.N.C. Feb. 14, 2013)
(unpublished); Knotts v. Univ. ofN.C. Charlotte, No. 3:08-CV-478, 2011 WL 650493, at *8-9

2

Locust's complaint names as defendants Don F. Stroud, RL Daughty, and OCG Leroy.
See [D.E. 1] 1. However, Locust has filed documents indicating that he attempted to serve process
on non-parties, Christopher Lander, Keith Boom, Duke Energy, and J Best, in addition to the named
defendants. See [D.E. 9] 6; [D.E. 10] 1, 5; [D.E. 15] 3, 5. If Locust wants to name additional
defendants, he must file an amended complaint and present summonses for the newly-named
defendants. Cf. Santiago v. Crown Heights Ctr. for Nursing & Rehab., No. 15-CV-4381 (DLI)
(CLP), 2016 WL 754410, at *4-5 (E.D.N.Y. Feb. 24, 2016) (unpublished); Pendergrass v. N.C.
Dep't ofPub. Safety, No. 3:13-CV-129-RJC, 2014 WL 4441460, at *2 (W.D.N.C. Sept. 9, 2014)
(unpublished). Locast's ''failure to properly name Defendants on the summons and to ensure that
a separate summons was issued for each defendant resulted in insufficient process." Coleman v.
Bank ofNew York Mello!!, 969 F. Supp. 2d 736, 744 (N.D. Tex. 2013).
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(W.D.N.C. Feb. 10, 2011) (unpublished); Pricev.Hous.Auth. ofNewOrleans,No. CIV.A. 09-4257,
2010 WL 2836103, at *1 (B.D. La. July 16, 2010) (unpublished).3
Although proceeding pro se, Locust must comply with the Federal Rules of Civil Procedure.
See,~'

Baldwin Cty. Welcome Ctr. v. BroiD1,466 U.S. 147, 151-52 (1984) (per curiam). The

court enjoys some discretion in enforcing Rule 4 when there is actual notice, but ''the rules are there
to be followed, and plain requirements for the means of effecting service of process may not be
ignored." Armco. Inc. v. Penrod-Stauffer Bldg. Sys.. Inc., 733 F.2d 1087, 1089 (4th Cir. 1984).
"[C]ourts generally allow prose plaintiffs a chance to remedy technical insufficiencies in
service of process." Thomas, 2013 WL' 593419, at *1; see Knotts, 2011 WL 650493, at* 9. The
court directs the .clerk to send Locust summons forms and a copy of this order. Locust must
complete a separate summons for each named defendant and present the summonses to the clerk's
office for issuance. Locust shall present the completed summonses to the clerk's office for issuance
with a signature and seal on or before December 8, 2017. Locust will then have until February 5,
2018, to effect service. The court warns Locust that if he fails to effect service by that deadline, the
court will dismiss the action without prejudice. See Fed. R. Civ. P. 4(m).
As for Locust's motion for entry of default, the court denies the motion. An entry of default
shall be made when "a party against whom a judgment for affirmative relief is sought has failed to
plead or otherwise defend." Fed. R. Civ. P. 55(a). Locust seeks entry of default against someone
who has not been named as a defendant. See [D.E. 15]. Moreover, a defendant is not required to
answer until after the defendant has been served with the summons and complaint. See Fed. R. Civ.

3

Locust states that he attempted to serve defendants Leroy and Stroud, along with nonparties, by certified mail. See [D.E. 15] 3; [D.E. 15-1] 4. Locust, however, has not produced any
certified mail receipts. See,~' Hunter v. Hunter, 69 N.C. App. 659, 663, 317 S.E.2d 910, 912
(1984); cf. Moore v. Cox, 341 F. Supp. 2d 570,573 (M.D.N.C. 2004).

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P. 12(a). Because no defendant has been served with the summons and complaint, no answer is due.
Thus, the court denies the motion.

In sum, the court DENIES plaintiff's motion for entry of default

[D~E.

15]. The court

DIRECTS the clerk to send plaintiff summons forms and a copy of this order. The court DIRECTS
plaintiff to complete a separate summons for each named defendant and present the summonses to
the clerk's office for issuance on or before December 8, 2017. Plaintiff will then · have until
February 5, 2018, to effect service on all defendants. The court warns plaintiff that if he fails to
effect service by that deadline, the court will dismiss the action without prejudice. See Fed. R. Civ.
P. 4(m).
SO ORDERED. This Ll day ofNovember 2017.

Chief United States District Judge

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