Gulley v. Rex Hospital
ORDER denying 9 Motion to Dismiss and granting 17 Motion to Amend and Re-file the Summons. The court ORDERS that the time for effecting service of process on Defendant be extended until 11/3/2014. The Clerk of Court is DIRECTED to mail a blank copy of summons to Plaintiff, to be prepared and properly addressed to Defendant by Plaintiff. Signed by Senior Judge James C. Fox on 9/11/2014. Copy of order and blank summons mailed to plaintiff via US Mail. (Grady, B.)
UNITED STATES DISTRJCT COURT
EASTERN DISTRJCT OF NORTH CAROLINA
REX HOSPITAL, INC.,
This matter is before the court on Defendant Rex Hospital, Inc.'s Motion to Dismiss [DE-9]
and prose Plaintiff Candice Gulley's Motion for Leave to Amend andRe-file the Summons [DE17]. Each party responded to the other's motion, but no replies were filed within the allotted time.
This matter is ripe for disposition. For the reasons more fully stated below, the Motion to Dismiss
is DENIED and the Motion for Leave is ALLOWED.
I. STATEMENT OF THE CASE
Plaintiff filed the instant Title VII action [DE-l] on March 6, 2014, challenging her
termination of employment by Defendant. The court issued Summons [DE-3] on the same day, and
Plaintiff shortly thereafter attempted to serve Defendant by certified mail. Pl.'s Mem. in Support of
Mot. to Amend [DE-18] at 1. She addressed and sent the Summons to "Rex Hospital," but failed
to include the Complaint in the mailing. !d. at 1-2. On 10 March 2014, a mailroom clerk at Rex
Hospital received and signed for the Summons, and on 13 March 2014, Rex Hospital's legal
department received it. Mem. in Support ofDef.'s Mot. to Dismiss [DE-10] at 2. Plaintiff filed a
ProofofService [DE-5] on March 18,2014.
Defendant seeks dismissal of Plaintiffs claim pursuant to "Federal Rules of Civil Procedure
12(b)(2), 12(b)(4), and 12(b)( 5) for lack of personal jurisdiction, insufficient process, and insufficient
service ofprocess." Mem. in Support ofDef.'s Mot. to Dismiss [DE-10] at 3. Plaintiff, in turn,
seeks leave to have a new summons issued and a reasonable period of time to re-serve Defendant
inaccordancewithapplicable rules of procedure. Pl.'s Mem. in Support ofMot. to Amend [DE-18]
A plaintiff bears the burden of showing that the service of process, and the process itself,
complies with the requirements set forth in Rule 4 oftheFederal Rules of Civil Procedure. Elkins
v. Broome, 213 F.R.D. 273, 275 (M.D.N.C. 2003). The Fourth Circuit has counseled that
[w]hen the process gives the defendant actual notice ofthe pendency ofthe action,
the rules, in general, are entitled to a liberal construction. When there is actual notice,
every technical violation of the rule or failure of strict compliance may not invalidate
the service of process. 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).
Rule 4(c)(1) states, "A summons must be served with a copy of the complaint. The plaintiff
is responsible for having the summons and complaint served within the time allowed by Rule 4(m)
.... " Serving a summons or complaint alone is insufficient, and may serve as grounds for dismissal.
See Cherry v. Spence, 249 F.R.D. 226, 229 (E.D.N.C. 2008) (dismissing action where Plaintiff
served only the first page of his complaint, without a summons).
Rules 4(e) and (h) of the Federal Rules of Civil Procedure provide that service on a
corporation may be made pursuant to the "state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is located or where service is made"
or "by delivering a copy of the summons and of the complaint to an officer, a managing or general
agent, or any other agent authorized by appointment or by law to receive service of process, and if
the agent is one authorized by statute to receive service and the statute so requires, by also mailing
a copy to the defendant." North Carolina Rule of Civil Procedure 4G)(6)(c), in turn, allows for
service on a corporation "[b ]y mailing a copy of the summons and of the complaint registered or
certified mail, return receipt requested, addressed to the officer, director or [authorized] agent."
North Carolina law requires a strict construction ofthe service of process statutes, and, thus, proper
service is not effectuated if the statute is not followed, even ifthe defendant has actual notice of the
complaint. Stackv. Union Reg'l Mem 'l Med Ctr., Inc., 614 S.E.2d 378,382 (N.C. Ct. App. 2005).
Without proper service of process, this court is deprived of personal jurisdiction over a defendant.
See Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998).
Rule 4(m) of the Federal Rules of Civil Procedure prescribes a 120-day period after the filing
of the complaint during which a plaintiff must effect service. Rule 4(m), however, also states that
a court must extend the time for service if the plaintiff shows good cause for failure to effect service.
See also Fed. R. Civ. P. 4(m) advisory committee's note (explaining that Rule 4(m) "explicitly
provides that the court shall allow additional time ifthere is good cause for the plaintiffs failure to
effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the
consequences of an application ofthis subdivision even ifthere is no good cause shown") (emphasis
added). Courts have authorized extensions of time where a pro se plaintiff has made a reasonable
effort to effect service. See, e.g., Hammad v. Tate Access Floors, Inc., 31 F. Supp.2d 524, 528
(D.Md. 1999). Additionally, Rule 4(a)(2) provides that a "court may permit a summons to be
amended." See Moses v. North Carolina Dept. OfTransp., No. 2:07 -CV-52-BR, 2008 WL 2330980,
at * 2 (E.D.N.C. June 5, 2008).
Plaintiff's service on Defendant
The record shows that Plaintiff has not properly served Defendant. Specifically, she failed
to satisfy Rule 4(c)(1) by not serving Defendant with both the Summons and Complaint.
Additionally, she did not comply with North Carolina Rule of Civil Procedure 4G)( 6)(c) because she
failed to address the Summons and Complaint to an "officer, director or agent" of Rex Hospital,
instead addressing it to only "Rex Hospital." [DE-5].
The court notes that pro se plaintiffs attempting to comply with service of process rules are
entitled to more latitude than litigants represented by counsel. See, e.g., Moore v. Agency forInt 'I
Dev., 994 F.2d 874, 876 (D.C. Cir. 1993); Wright v. North Carolina State Univ., No. 5:98-CV644BR3, 1998 WL 937273, at *5 (E.D.N.C. Nov. 18, 1998). In this case, Plaintiff's improper service
of the Summons and Complaint does not justify dismissal of her claim. See Moses, 2008 WL
2330980, at *2 (allowing the plaintiff to amend the summons to direct delivery to an authorized
agent). Pursuant to Rule 4(a)(2), Plaintiff will be allowed to amend her summons to direct delivery
to an authorized agent of Rex Hospital. Plaintiff has shown no lack of diligence, as she made a good
faith effort to serve Defendant almost immediately after the summons was issued. See Johnson v.
BAC Home Loans Servicing, LP, No. 5:10-CV-271-F, 2011 WL 223874, at *4 (E.D.N.C. January
21, 2011) (allowing additional time to effectuate proper service where the plaintiff made reasonable
efforts to serve the defendant). Additionally, she filed the instant Motion for Leave to Amend and
Re-file the Summons on May 19,2014, well within the 120-daytime limit prescribed by Rule 4(m).
Accordingly, for good cause shown, or, alternatively, in this court's discretion, the court
ORDERS that time for effecting service of process be extended until November 3, 2014. Plaintiff
may obtain a reissued summons from the Clerk of Court. Plaintiff is advised to consult Rule 4 ofthe
Federal Rules of Civil Procedure and the applicable North Carolina Rules of Civil Procedure for the
requirements of properly completing summonses and for service of process. Plaintiff also is advised
that the failure to effect proper service by November 3, 2014 may result in the dismissal of this
Based on the foregoing, Plaintiffs Motion to Amend andRe-file the Summons [DE-17] is
ALLOWED. The court ORDERS that the time for effecting service of process on Defendant be
extended until November 3, 2014. The Clerk of Court is DIRECTED to mail a blank copy of
summons to Plaintiff, to be prepared and properly addressed to Defendant by Plaintiff. Defendant's
Motion to Dismiss [DE-9] is DENIED without prejudice.
This the_)}_ day of September, 2014.
Senior United States District Judge
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