Olavarria v. Christian

Filing 9

ORDER DENYING WITHOUT PREJUDICE 6 Plaintiff's Motion for Preliminary Injunction. Plaintiff is ordered to effect proper service on the defendant within 21 days of the date of entry of this order or he shall be required to demonstrate why this action should not be dismissed for failure to prosecute. The plaintiff has permission to refile the Motion for Preliminary Injunction once proper service has been effected. Signed by US District Judge Terrence W. Boyle on 5/2/2014. Copy of order maield to plaintiff via US Mail. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-15-BO
REINALDO OLAV ARRIA
Plaintiff,
v.
LORI CHRISTIAN
Defendant.

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ORDER

This cause comes before the Court on plaintiff's motion for preliminary injunction
pursuant to Rule 65 ofthe Federal Rules of Civil Procedure.
BACKGROUND
Plaintiff, who is proceeding prose, filed this action on January 8, 2014, alleging claims
for violations of his civil rights under the United States Constitution. Plaintiff alleges that
defendant, a district court judge in Wake County, North Carolina, entered a temporary order in
March 2013 which substantially impairs his rights. In his motion for preliminary injunction,
plaintiff seeks an order barring Judge Christian from presiding over any district court matters
involving plaintiff, as well as specific remedies regarding plaintiff and his minor children.
DISCUSSION
At the outset, the Court finds that service of the complaint in this matter fails to comply
with Rule 4 ofthe Federal Rules of Civil Procedure. Rule 4(c) requires that the summons and
complaint must be served in order to effect proper service, and service is only proper where duly
issued summons and a properly filed complaint are served. J 0. Alvarez, Inc. v. Rainbow
Textiles, Inc., 168 F.R.D. 201,202 (S.D.Tx. 1996). Plaintiff's proof of service ofthe complaint
reflects that service was personally effected by a process server on January 6, 2014. As noted

above, the complaint in this action was filed on January 8, 2014, and summons were issued the
same day. Thus, it appears that Judge Christian was served prior to the issuance of summons and
prior to the filing of the complaint, and service by plaintiff was therefore ineffective.
Absent valid service of process, the Court lacks personal jurisdiction over a defendant.
Id. at 203; see also Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999)
(court may not ordinarily exercise power over a party in the absence of service of process);
Koehler v. Dodwell, 152 F .3d 304, 306 (4th Cir. 1998) ("failure to obtain proper service on the
defendant deprives the court of personal jurisdiction over the defendant"). Absent personal
jurisdiction over defendant, the Court cannot entertain plaintiffs request for preliminary
. .

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InJUnctiOn.

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CONCLUSION
Accordingly, the Court holds that service on defendant in this matter fails to satisfy Rule
4 ofthe Federal Rules of Civil Procedure. Plaintiff is ORDERED to effect proper service on
defendant within twenty-one days of the date of entry of this order or he shall be required to
demonstrate why this action should not be dismissed for failure to prosecute. Further, as the
Court lacks personal jurisdiction over defendant at this time, plaintiffs motion for preliminary
injunction [DE 6] is DENIED WITHOUT PREJUDICE with permission to refile once proper
service has been effected.
SO ORDERED,

this~ day of May, 2014.

r~LE¥
UNITED STATES DISTRICT JUDGE

1

Additionally, a court may not enter a preliminary injunction absent notice. Fed. R. Civ. P.
65(a)(l).
2