Kelley et al v. Enviva, LP et al

Filing 29

ORDER GRANTING IN PART AND DENYING IN PART 14 Defendants' Motion to Dismiss. This action is stayed until the plaintiff demonstrates or obtains effective service. Nothing in this order prevents the defendants from renewing their motion to dismiss at the appropriate time. Signed by US District Judge Terrence W. Boyle on 9/24/2014. Copy mailed to pro se plaintiff, via US Mail, to P.O. Box 624, Swansboro, NC, 28584. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:14-CV-126-BO

JAMES KELLEY d/b/a KELLEY
ENGINEERING,

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Plaintiff,
V.

ENVIVA, LP, JOHN KEPPLER, NORB HINTZ,
ENVIV A PELLETS AHOSKIE, LLC, ENVIV A
PELLETS NORTHAMPTON, LLC, ENVIVA
PELLETS SOUTHAMPTON, LLC,
ENVIVA HOLDINGS, LP, "JOHN DOE"
CORPORATION(S) AND/OR
PARTNERSHIP(S),
Defendants.

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ORDER

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This matter is before the Court on defendants' motion to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(2), (4), and (5). [DE 14]. The motion is ripe for adjudication. For
the reasons stated herein, defendants' motion is DENIED IN PART and GRANTED IN PART.

BACKGROUND
Pro se plaintiff, James Kelley, filed a complaint in Onslow County Superior Court on
August 12, 2013. Defendants removed the case to this Court on September 11, 2013, and filed a
motion to dismiss due to lack of personal jurisdiction, and insufficiency of process and service of
process. [Kelley v. Enviva, LP, No. 7:13-CV-197-BO (E.D.N.C.)]. After giving plaintifftime to
perfect service, the Court dismissed plaintiffs complaint without prejudice on April 1, 2014.
On May 13, 2014, plaintiff filed another complaint against defendants in the Onslow
County Superior Court. The 2014 complaint is virtually identical to the 2013 complaint except

that the 2014 complaint names Enviva Holdings as an additional party. Plaintiff served the
summonses and complaints by mail. Defendant Hintz received a copy of the summons and
complaint on May 17, 2014. On the same date, defendant Keppler received a copy ofthe
complaint and summons naming both Keppler individually and CT Corporation Systems, the
registered Virginia agent for Enviva Pellets Southampton (Southampton). On May 20, 2014, CT
Corporation, the registered North Carolina agent for Enviva, Enviva Pellets Ahoskie, Enviva
Pellets Northampton, and Enviva Holdings, notified Enviva's corporate office that it received
plaintiffs complaint and summonses naming these defendants. No process was received by the
registered North Carolina agent for Southampton. In the initial filing, plaintiff provided no
evidence of return receipt as to any defendant.
Defendants removed the case to this Court on June 12, 2014, based on diversity
jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. [DE 1]. One week later, defendants
filed the instant motion to dismiss or to stay. [DE 14]. In his response, plaintiff attached proofs of
service as to all defendants save Southampton, as well as an affidavit from one Martha Kelley,
which stated that she personally served defendants with the summons and complaint. [DE 20].

DISCUSSION
Plaintiffs attempts at service prior to removal of an action are governed by the law and
procedural rules of the state under which service is made. Morton v. Meagher, 171 F. Supp. 2d
611, 613-14 (E.D. Va. 2001) (citing Brazell v. Green, 67 F.3d 293 (4th Cir. Sept. 29, 2995)
(unpublished)). Here, plaintiff was required to comply with North Carolina law because this
action was originally filed in North Carolina state court. In North Carolina, although defective
service of process may give the defending party actual notice of the proceedings, such notice
does not give the court jurisdiction. Fulton v. Mickle, 518 S.E.2d 518,521 (N.C.App. 1999).

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To comply with North Carolina law, "there must be the issuance of summons and service
of process by one of the statutorily specified methods." Agbemavor v. Keteku, 629 S.E.2d 337,
339 (N.C.App. 2006) (internal citation omitted). Serving process by mail can be accomplished
"[b]y mailing a copy ofthe summons and ofthe complaint, registered or certified mail, return
receipt requested, addressed to the party to be served, and delivering it to the addressee[,]" or by
"mailing a copy of the summons and of the complaint by signature confirmation as provided by
the United States Postal Service, addressed to the party to be served, and delivering it to the
addressee." N.C. Gen. Stat.§ 1A-1, Rule 4(j)(l)(c). Service must be made by someone who "is
not less than 21 years of age, who is not a party to the action, and who is not related by blood or
marriage to a party to the action .... ". N.C. Gen. Stat. §1A-1, Rule 4(h)(l). Without proper
service, the Court lacks jurisdiction. See Fulton, 518 S.E.2d at 519 (requiring "strict compliance"
with the requirements of service by mail).
Plaintiffs attempts at service are again deficient. There is no evidence of return receipt
for defendant Southampton, despite the fact that plaintiff provided return receipts for all other
defendants. [DE 20, ex. 2]. Thus, plaintiff has failed to meet the proper service requirements as
to Southampton for the third time. 1 Plaintiff also presented an affidavit from Martha Kelley, who
stated that she mailed the summons and complaint to the remaining defendants. [D.E. 20, ex. 3].
Plaintiff has not presented evidence that Ms. Kelley is over the age of 21 and unrelated to
plaintiff by blood or marriage.
The Court is inclined to stay this action to allow plaintiff to demonstrate effective service
in order to avoid a default ruling, as the Fourth Circuit has "repeatedly expressed a strong
preference that, as a general matter ... claims and defenses be disposed of on their merits," and
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Plaintiff had two opportunities to perfect service against Southampton in the 20 13 lawsuit and
one chance in this 2014 lawsuit.
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the FED. R. CIV. P. 4(m) deadline has not passed. Colleton Preparatory Acad., Inc. v. Hoover
Because defendants removed this case on June 12, 2014, plaintiffhas 120 days from that date to
obtain or demonstrate effective service on defendants. Eccles v. Nat 'l Semiconductor Corp., 10
F. Supp. 2d 514, 519 (D. Md. 1998). Although service has not been perfected yet, 28 U.S.C. §
1448 provides that when service has not been perfected prior to removal, as here, "such service
may be completed or new process issued in the same manner as in cases originally filed in such
district court." Accordingly, if plaintiff chooses to re-serve the remaining defendants, it must be
done in accordance with the Federal Rules of Civil Procedure prior to the 120 day deadline. !d.
(stating that federal law applies after removal). Given the history of this case and the plethora of
issues related to service, plaintiff is put on notice that the Court will carefully scrutinize any
requests for extensions pursuant to FED. R. Civ. P. 4(m).
CONCLUSION

For the foregoing reasons, defendants' motion to dismiss [DE 14] is DENIED IN PART
and GRANTED IN PART. This action is STAYED until plaintiff demonstrates or obtains
effective service. Nothing in this order prevents defendants from renewing their motion to
dismiss at the appropriate time.
SO ORDERED.
This the

l l day of September, 2014.

UNITED STATES DISTRICT JUDGE

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