Petitlubin v. Fayetteville Kia

Filing 10

ORDER denying 8 Motion for Entry of Default - The motion for entry of default is DENIED without prejudice to renew within 30 days. Any renewed motion for entry of default must be supported by evidence that the defendant was served with process under federal or North Carolina law. Signed by Julie Richards Johnston, Clerk of Court on 5/12/2016. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5:16-CV-5-FL
MASCELINE PETITLUBIN,
Plaintiff,
v.
FAYETTEVILLE KIA,
Defendant.

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ORDER

This matter is before the court on the plaintiff’s motion for entry of default [D.E. 8]. For
the reasons set forth below, the motion is DENIED without prejudice.
Rule 55 of the Federal Rules of Civil Procedure provides: “When a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P.
55(a). The plaintiff correctly states that defendant has failed to file an answer or otherwise appear
in this action in this court. The plaintiff has not, however, shown by affidavit or otherwise that
defendant was properly served. Without being properly served, a defendant has no obligation to
file an answer or appear in this action. See Maryland State Firemen’s Ass’n v. Chaves, 166
F.R.D. 353, 354 (D. Md. 1996) (“It is axiomatic that service of process must be effective under
the Federal Rules of Civil Procedure before a default or a default judgment may be entered
against a defendant.”), Henderson v. Los Angeles Cnty., No. 5:13-CV-635-FL, 2013 WL
6255610, at *1 (E.D.N.C. Dec. 4, 2013) (explaining that “a defendant’s duty to respond to a
complaint only arises upon proper service of process” and therefore a “plaintiff must show, by
affidavit or otherwise, that proper service of process has been effected before default may be
entered”); see also Fed. R. Civ. P. 12(a)(1)(A).

In the complaint, plaintiff alleges that defendant Fayetteville Kia “is a North Carolina
business entity.” Compl. [D.E. 1] ¶ 5. The affidavit of service filed by the plaintiff states that the
defendant was served by certified mail addressed as follows:
Fayetteville Kia
2012 Skibo Road
Fayetteville, NC 28314

Aff. of Service [DE-7]. This manner of service does not appear to comply with any of the
possible requirements for service of process under either federal or North Carolina law. See Fed.
R. Civ. P. 4(h) (providing inter alia, that a corporation, partnership, or other unincorporated
association may be served by delivering a copy of the summons and the complaint to an officer
or agent authorized by law to receive process or by following state law); N.C. Gen. Stat. § 1A-1,
Rule 4(j)(6)-(8) (providing the manner in which corporations, partnerships, or unincorporated
associations may be served).
Notably, under North Carolina law, service upon either a corporation, partnership or
unincorporated association by certified mail all requires the mail to be addressed to a specified
individual, normally an officer, director, managing agent, or partner. Here, the service indicates
that the summons and complaint were addressed only to “Fayetteville Kia.” See Choice Hotels
Int’l v. Amcee Enter., Inc., No. 5:13-CV-200-F, 2014 WL 3778932, at *2 (E.D.N.C. July 31,
2014) (determining that the plaintiff had failed to show proper service on a corporation where the
summons and complaint were directed solely to the corporate defendant, without specifying any
officer, director, or agent of the corporation). Additionally, proper service under North Carolina
requires certified mail to be with “return receipt requested.” There is no indication in the
affidavit of service that the certified mail was “return receipt requested.” On this record, the
clerk cannot find that the plaintiff effected proper service.

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Without being properly served, the defendant has no obligation to appear or file an
answer in this action. Accordingly, the motion for entry of default [D.E. 8] is DENIED without
prejudice to renew within 30 days. Any renewed motion for entry of default must be supported
by evidence that the defendant was served with process under federal or North Carolina law.

SO ORDERED. This the 12th day of May, 2016.

______________________________
Julie Richards Johnston
Clerk of Court

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