NATIONAL ALLIANCE FOR ACCESSIBILITY, INC., et al v. HIGH POINT DEVELOPMENT LIMITED PARTNERSHIP

Filing 28

MEMORANDUM ORDER signed by JUDGE THOMAS D. SCHROEDER on 10/31/2012, that Plaintiffs' motion for an extension to serve Defendant 1924 Holdings (Doc. 24 ) is GRANTED, and Plaintiffs shall have thirty (30) days from the entry of this Order within which to effect service. FURTHER, that Defendant High Point Development's motion to dismiss and for sanctions (Doc. 25 ) is DENIED. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NATIONAL ALLIANCE FOR
ACCESSIBILITY, INC., a Florida
not for profit corporation,
and DENISE PAYNE,
Individually,

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Plaintiff,
v.
HIGH POINT DEVELOPMENT LIMITED
PARTNERSHIP, a North Carolina
Domestic Corporation, and 1924
HOLDINGS LLC, a North Carolina
Limited Liability Company,
Defendant.

1:11-cv-918

MEMORANDUM ORDER
This

action

is

one

of

many

in

this

court

in

which

Plaintiffs National Alliance for Accessibility, Inc. (“NAA”) and
Denise Payne (“Payne”) seek declaratory and injunctive relief
against owners and operators of public facilities for alleged
violations of the Americans with Disabilities Act of 1990, 42
U.S.C. §§ 12101 et seq. (2006 & Supp. 2012) (“ADA”).

Before the

court is the second motion of Plaintiffs for an extension of
time to effect service on Defendant 1924 Holdings LLC (“1924
Holdings”)

(Doc.

Development
dismiss

the

24)

Limited
action

and the

motion

Partnership
and

for

of

Defendant

High

Point

(“High

Point

Development”)

sanctions

(Doc.

25).

For

to
the

reasons set forth below, the court grants Plaintiffs’ motion to
extend the time to serve the amended complaint and denies High
Point Development’s motion and related request for sanctions.
I.

BACKGROUND
From her home state of Florida, Payne, who is disabled, and

the organization she founded, the NAA, seek to promote equality
for disabled individuals through ADA litigation.
12.)

(Doc. 9 ¶¶ 5,

Payne alleges that in July 2010 and October 2011, she

visited the Oak Hollow Mall in High Point, North Carolina, which
she alleges Defendants own, and observed several violations of
the ADA.

(Id. ¶¶ 7-10.)

Plaintiff filed this action, alleging ADA violations, on
October 27, 2011.

(Doc. 1.)

with

and

the

summons

High Point Development was served

complaint

in

December

2011,

respond timely, and default was entered against it.

failed

to

(Doc. 8.)

Plaintiffs learned that High Point Development sold the Oak
Hollow Mall and filed an amended complaint naming Defendant 1924
Holdings, the alleged new owner, on January 3, 2012.

(Doc. 9.)

High Point Development also moved for, and was granted (with
Plaintiffs’ consent), an order setting aside the default against
it.

(Docs. 14, 18.)
Plaintiffs attempted service on Defendant 1924 Holdings but

learned that its registered agent listed by the North Carolina
Secretary of State, William Duncan, was deceased and had not
2

been replaced.

Consequently, Plaintiffs were unable to effect

service and sought an extension to do so.

(Doc. 19.)

The court

entered an Order extending until March 24, 2012, the time to
serve 1924 Holdings (Doc. 21), but the deadline passed without
service.
On May 10, 2012, Plaintiffs moved to extend again the time
for serving 1924 Holdings.

(Doc. 24.)

Plaintiffs assert that

they attempted service but were “unable” to identify an officer
or

registered

agent

by

March

24,

2012.

(Doc.

24

¶

9.)

According to Plaintiffs, on March 14, 2012, the property manager
for the Oak Hollow Mall informed them that the new registered
agent

could

be

contacted

at

High

Point

University,

and

that

“Plaintiff [sic] eventually made contact with a Denny Bolton at
High Point University” who confirmed that he would be assuming
the role of the registered agent but declined to provide an
address,

noting

rather

that

the

N.C.

Secretary

website would be updated with the information.
Plaintiffs

assert

that

they

checked

the

N.C.

of

State’s

(Id. ¶ 11.)
Secretary

of

State’s website “[o]n several occasions” after this conversation
but

that

“no

updated

information

was

available”

before

the

expiration of the extension and they were unable to determine
the officers of 1924 Holdings.

(Id. ¶¶ 9, 12.)

Defendant High Point Development has produced a copy of the
N.C.

Secretary

of

State’s

website
3

showing

that

on

March

22,

2012, 1924 Holdings filed a Statement of Change of Registered
Office

and/or

Registered

Agent

(“Registered

Agent

Filing”)

naming Denny G. Bolton as 1924 Holdings’ registered agent and
providing an address of 833 Montlieu Avenue, High Point, North
Carolina 27262.

(Doc. 26-1.)

signed

Bolton,

by

Mr.

as

The Registered Agent Filing is
registered

agent,

and

Seth

M.

Huffstetler, 1924 Holdings’ Organizer, and is dated March 12,
2012.

(Id.)

Defendant High Point Development now moves to dismiss the
complaint

as

against

1924

Holdings

on

three

grounds:

(1)

Plaintiffs’ failure to serve 1924 Holdings within 120 days, as
required

by

Federal

Rule

of

Civil

Procedure

4(m),

(2)

Plaintiffs’ failure to submit a brief with its motion for an
extension of time to serve the complaint on 1924 Holdings, in
violation

of

Local

Rule

7.3,

and

(3)

Plaintiffs’

failure

to

confer with Defendants’ counsel prior to filing its motion, in
violation of Local Rule 6.1(a).
II.

ANALYSIS
Rule 4(m) of the Federal Rules of Civil Procedure provides:
If a defendant is not served within 120 days
after the complaint is filed, the court – on motion or
on its own after notice to the plaintiff – must
dismiss the action without prejudice against that
defendant or order that service be made within a
specified time. But if the plaintiff shows good cause
for the failure, the court must extend the time for
service for an appropriate period.

4

Fed. R. Civ. P. 4(m).
serve

1924

complaint,

Holdings
but

they

Plaintiffs acknowledge that they did not
within
argue

120
they

days
have

of

the

been

filing

diligent

efforts to locate that Defendant’s registered agent.

of
in

the

their

High Point

Development argues that good cause has not been shown.
The court need not decide whether good cause exists so as
to mandate an extension to serve 1924 Holdings, because even
without it the court has the discretion to order that service be
made within a specified time.
F.

Supp.2d

590,

596-97

Lane v. Lucent Techs., Inc., 388

(M.D.N.C.

2005);

see

also DiPaulo

v.

Potter, 570 F. Supp. 2d 802, 806-07 (M.D.N.C. 2008) (noting that
the current Rule 4(m) does not require a showing of good cause).
The record demonstrates that Plaintiffs attempted to serve 1924
Holdings, only to find that its registered agent listed with the
Secretary

of

State

was

deceased.

Plaintiffs

investigated

further to determine the identity of the new registered agent
and learned it was Mr. Bolton.

Plaintiffs contacted Mr. Bolton

sometime after March 14, 2012, but before March 24, 2012, to
determine the address at which to serve him, but he declined to
give it at that time and deferred to the fact that it would soon
be listed on the Secretary of State’s website.

However, it is

apparent from High Point Development’s evidence that even before
this conversation Mr. Bolton had already signed the Registered
Agent Filing, subsequently filed with the Secretary of State,
5

which provided the information Plaintiffs requested and needed
to effect service (indeed, the address for the registered agent
did not change).
the

Secretary

of

While Plaintiffs presumably could have checked
State’s

website

between

March

14

and

the

expiration of the extension on March 24 to determine whether the
Registered Agent

Filing

had

been

posted, 1

it

is

nevertheless

clear that at the time of his conversation with Plaintiffs Mr.
Bolton

possessed

the

service

information

Plaintiffs

sought.

Further, while the Registered Agent Filing bears a note it was
filed March 22, 2012, only two days before the expiration of the
Plaintiffs’ extension, there is no evidence in the record as to
when it was posted on the website.
Under these circumstances, the court, in its discretion, is
not inclined to order dismissal but rather will extend the time
for

serving

the

amended

complaint

on

1924

Holdings

30

days

following the date of this Order.

1

To be sure, Plaintiffs could have served the Secretary of State once
they discovered that Mr. Duncan was deceased. Under applicable North
Carolina law, when a limited liability company such as 1924 Holdings
“shall fail to appoint or maintain a registered agent in [North
Carolina], or whenever its registered agent cannot with due diligence
be found at the registered office,” the N.C. Secretary of State “shall
be an agent of the limited liability company upon whom any process,
notice, or demand may be served.” N.C. Gen. Stat. § 57C-2-43(b); see
id. §§ 55D-30, 55D-31, 55D-33(b).
But where Mr. Bolton informed
Plaintiffs that he was to assume the position of 1924 Holdings’
registered agent, Plaintiffs’ failure to serve the Secretary of State
in lieu of waiting for the registered agent’s address and in light of
Plaintiffs’ discussion with Mr. Bolton was not unreasonable.

6

It is true that Plaintiffs have failed to file a brief with
their motion and allegedly failed to consult with High Point
Development before filing their motion.

While the court does

not condone the former violation of the local rules, the issue
is

admittedly

straightforward. 2

As

to

the

latter

alleged

violation, Plaintiffs claim they did consult with High Point
Development,

which

took

the

position

it

was

a

disinterested

bystander.

Even consent by Defendant High Point Development

would not have avoided Plaintiffs’ motion for an extension of
time to serve the complaint because High Point Development does
not

speak

for

Defendant

1924

Holdings

ultimately one for the court to decide.

and

the

issue

is

High Point Development

has not identified any prejudice to it, either from the failure
to

follow

Plaintiffs,

any
who

local

rule

or

from

have

filed

scores

the
of

delay

cases

in

service. 3

nationwide,

are

cautioned to observe this court’s local rules in all actions in
this district.
III. CONCLUSION
For the foregoing reasons,
2

By way of contrast, no brief is required (unless otherwise directed
by the court) for a motion requesting an extension of time filed
before the expiration of the period prescribed.
M.D.N.C. LR
7.3(j)(2).
Here, Plaintiffs filed their second motion for extension
of time (Doc. 24) after the period set out in a previous order.

3

Because High Point Development opposes Plaintiffs’ motion to extend
the time to serve 1924 Holdings, the court presumes that High Point
Development would have held the same position during any meet and
confer.

7

IT IS ORDERED that Plaintiffs’ motion for an extension to
serve

Defendant

1924

Holdings

(Doc.

24)

is

GRANTED,

and

Plaintiffs shall have thirty (30) days from the entry of this
Order within which to effect service.
IT

IS

FURTHER

ORDERED

that

Defendant

High

Point

Development’s motion to dismiss and for sanctions (Doc. 25) is
DENIED.

/s/
Thomas D. Schroeder
United States District Judge
October 31, 2012

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