LEWIS V. MILLENNIUM SPORTS CLUB, ET AL.

Filing 41

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 09/15/2017. Based upon the evidence presented in this case, Plaintiff failed to properly effectuate service of process on Defendant Nause ef, therefore depriving the Court of personal jurisdiction over him. Alternatively, Plaintiff has failed to plausibly state a claim upon which relief may be granted. For such reasons, IT IS HEREBY RECOMMENDED that Defendant Nauseef's Motion to Dismiss (Docket Entry 19 ) be GRANTED and Plaintiff's Motions for Entry of Default and for Default Judgment (Docket Entries 31 , 34 ) be DENIED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PAUL A. LEìNS,
Plaintiff,
V.

DURHÂM ITELLNESS AND
FITNESS, INC., d/b/a MILLENNIUM
SPORTS CLUB, P,\TRIK CONTE,H
and ROBERTJ. NAUSEEF,
Defendants.

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1,:17CY21.7

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE TUDGE
This mattet is before the Coun on Plaintiff Paul A. Lewis' Motion for Entry of Default
and for DefaultJudgment (Docket Entry 31) putsuant to Rule 55 of the Federal Rules of Civil

Procedure, and Defendant RobertJ. Nauseefs Motion to Dismiss (Docket E.ttry 19) pursuant

to Rules 12þ)Q), (5), and (6) of the Federal Rules of Civil Procedure. The matters ate ripe
for disposition. For the reasons stated herein, it is recommended that Defendant's Motion to
Dismiss be granted and Plaintiffs Motion for Entry of Default and for. DefaultJudgment be
denied.l

I.

PROCEDURAL BACKGROUND

On Match 1,4,2017, Plaintiff filed a Complaint against Durham Wellness and Fitness,
Inc., d,/b/a/ Millennium Spotts Club ("Millennium"), its owner and managet Patdk Conteh,

1

Plaintiffsubmitted additional authority in tegatds to his Motion for Entry of Default and for Default
Judgment. (Docket E ttty 34.) Having been docketed as a motion, the Court will also recommend
that this motion be denied.
1,

and attorney and club member RobertJ. Nauseef, along with an application to proceed inþana
þaaþeris

('IFP').

(Jae

Complaint, Docket Entry 1; IFP Application, Docket F,,ntry 2.) The

Court granted Piaintiffs IFP application (Docket Entry 4) and shortly thereafter, summonses
were issued as to all Defendants (Docket Entry 6). An ,tffidavit of Service as to Defendant
Nauseef was fi.led with the Coun on

April '1,0,2017. (Docket Entry 8.) On

,A.pdl

24,2017,

Defendant Nauseef sought an extension of time to respond to the Complaint (Docket Ent y
11) which the Court granted (seeText Order dated 04/27 /2017).

On May 5,201,J, Plaintiff filed an Amended Complaint against all Defendants.

(A-.

Compl., Docket Etttty 17.) Defendant Nauseef then filed a Motion to Dismiss, and submitted
a cottected

brief in support of his motion on May 20,201,7.

(Jee

Docket Entdes 19,21,.) On

June L2,2017 , Plaintiff filed both a response in opposition to Defendant Nauseef s Motion to

Dismiss Q)ocket Entty 30), and a Motion for Entry of Default and for Default Judgment
against Defendant Nauseef. Q)ocket Entry

31.) Defendant Nauseef filed a response in

opposition to Plaintiffs motion onJune 1,5,2017. (Docket Entry

32) The undersigned

then

held a telephone confetence with all counsel on record on June 22, 2017, at which time
Plaintiffls counsel indicated that she would submit to the Cout additional case law supporting

Plaintiffs position on the Motion for Entry of Default and for Default Judgment, ot
alternatively voluntarily withdraw the pending motion.

(See

Text Order dated 06/22/2017.)

Plaintiff then fi.led a supplemental motion (Docket E.rtry 34), alongwith an amended response

in opposition to Defendant NauseeFs Motion to Dismiss. (Docket Entry 33.) Thereafter,
Defendant Nauseef filed response and reply briefs onJune 28,2017

2

.

(Docket Entries 35,36.)

II.

FACTUAL BACKGROUND

'tccotding to the Complaint, Plaintiffls claims arise from the termination of his
membetship at Millennium, allegedly in violation of Title

Act,42 U.S.C. S 12101 et seq. (Am. Compl.

I1,

III

of the Americans with Disabilities

Docket Etttty 17 at1,.) Plaintiff contends

that he was a member of Millennium for more than twenty years. (Id. 1[ 19.) Due to his
disabilities, Plaintiff would arrive to group fitness classes lateand head to a spotin the ftont

of the class. (1/. 1T1'24-25.) Plaintiff stood in the same positon because it was always available
and because of his heating issues. (Id. 1126.) Defendant Conteh, owner and operator

of

Millennium, allegedly infotmed Plaintiff that he should go to the back of the class or not attend
class

if

he was running

late. (Id. ffi

35,

37)

,{.ftet failing to follow Defendant Conteh's

instructions, Plaintiffs membetship was terminated. Qd.

11

49.)

Priot to filing this Complaint, on September 30,201.6, Plaintiff filed a complaint against
Defendants Conteh and Millennium with the Consumet Protection Division of the
Caroltna Department of Justice ("the

NCDOJ").

Qd.

ll

65;

see

Noth

al¡o Docket Entry 1-4.)

Defendant Nausee{ acting as Miliennium's legal counsel, wrote a letter in response to the

NCDOJ's inquþ into the complaint against Millennium.

(A-.

Compl. ll66;

see

also

Docket

Entry 1-5.) In this letter, Defendant Nauseef wrote that "[t]he manager of the facility had
spoken to fPlaintiff] on at least nine (9) occasions about his harassment of female membets in

the Zumba classes, his interruption and disruption of many of the Zumba classes and his
intimidation and language while on the ptemises." pocket Entry 1-5.) He also stated
Plaintiffs behaviot tesulted in Millennium losing membership and indicated that Plaintiff had

J

never cornmunicatedthathe had a disability, not would it have been a factor in the tetmination

of his membership privileges: (Id.)

Plaintiff alleges that the statements made by Defendant Nauseef in this lettet to the
NCDOJ wete slanderous and defama;tory. (-,\m. Compl. fl 73.) Plaintiff seeks relief from
Defendant Nauseef on three gtounds: defamation, intentional infliction of emotional distress
and

negligentinfliction of emotional distress. (1d.1[1190-108.) He also seeks punitive damages.

(1d.ffi1,09-1,1,2.)

In addition, Plaintiffs A.mended Complaint added a clair-:' of obstuction of justice
against Defendant Nauseef

for

allegedly using his connections

with the Durham County

Sheriff to delibetately evade service of process. (1d.ffi1,1,3-1,22.) Defendant Nauseef was not
petsonally served, r^thet the summons and Complaint were hand delivered to an employee at

his law office by a process server unknown to Defendant Nauseef. (Affìdavit of Roben J.
Nauseef tflf 6, 8, Docket Entry 21, at20.)

III.

DISCUSSION

A. Plaintiffls Motions for Entry of Default

and for DefaultJudgment

Etttty of default is apptopriate where "aparty against whom

a

judgment for affrmative

telief is sought has failed to plead ot otherwise defend." Fed. R. Civ. P. 55(a). ,{.dditionally,
pursuant to Federal Rule of Civil Ptocedute 55(bX2), â court may enter a default judgment
against a ptopetly served defendant
allegations

who fails to plead or otherwise defend against the

in the complaint. Fed. R. Civ. P. 55(bX2). The Fourth Circuit has "repeatedly

exptessed a strong prefetence that, as a genetalmatter, defaults be avoided and that claim and
defenses be disposed

of on their merits."

Co//eton Preþaratory Acad., Inc. u. Hooaer Uniuerca/, Inc.,

4

616 F.3d 41,3,417 (4th Cir. 201,0).

"A court must 'exercise sound judicial disctetion in deciding

whethet to enter default judgment, and 'the moving p^tty is not entitled to default judgment
^s

a

m^ttet of

tþht."

Reytolds Innouations, Inc. u. E-CigaretteDirect

LJ,C,851 F.Supp . 2d 961,962

(IVI.D.N. C. 201,2) (citation omitted).

Hete, Plaintiff has moved for an entry of default and fot default judgment against
Defendant Nauseef

fot failing to answet Plaintiffs Complaint within the twenty-one

period ptescdbed by Federal Rule of Civil Procedure 12(a)(1XAXÐ. (Docket Errtty

Docket Errtty 34.) Plaintiff argues that although Defendant Nauseef filed

a

day

31.; see also

motion to dismiss

within the twenty-one day window, the failure to also file an ansv/er to Plaintiffs alegations
entitles him to a default judgment. (Docket Er,try

31,

at

1,.)

Plaintiffls atgument is unfounded and runs contr
Fedetal Rules of Civil Ptocedute

.

See

^ry

to procedure prescribed in the

Fed. R. Civ. P. 12(Q$). Under Rule 12(a)(4),

if p^rty
^

files a pre-ânswer motion, the paty's ansv/er is not due until fourteen days after notice of the

coutt's denial of the motion, and the "timely filing of a motion to dismiss suspend[s] [the
party's] obligation to file an answer." Nþric,k u. U.5.,559 Fed. App". 245,246 (4th Cir. 201,4);
¡ee al¡o

Ca¡tillo u. School Bd. of Broward Coangt Fla., 645 Fed. Appx . 966 (1,1,th Cir. 2016). This

Cout had not ded on Defendant Nauseefls pending and timely filed Motion to Dismiss,
thetefote no answet to Plaintiffs Amended Complaint is yet due. Thus, the Coutt should
deny Plaintiffs Motions fot E.ttty of Default and fot DefaultJudgment. Milh u.I-,ocklear,No.

5:1,2-CT-3007-FL, 201,4WL 41,623g1,,at x3 (E.D.N.C. Aug. 20,201,4)(unpublished) ("Because
defendant timely tesponded to plaintiffs complaint by fìling a motion to dismiss, plaintiffs

5

motions fot entry of default ate [denied]."). The Cout will now address Defendant Nauseefs

Motion to Dismiss.

B. Defendant NauseePs Motion to Dismiss
Defendant Nauseef argues that dismissal is appropriate pursuant to Federal Rule of

Civil Ptocedutes 12þ)(2) and (5) for lack of petsonal judsdiction based on ân insufficient
service of ptocess. "Befote a

fedenlcourt may exercise personâl jurisdiction over a defendant,

the procedural tequirement of service of summons must be satisfied." Omni Capitallnt'|, Ltd.

V. Radoþ lY/olf dz Co., Ltd.,484 U.S. 97, 1,04 (1987) (internal quotations omitted). Plaintiff
bears the bruden

of establishing that the service of process has been performed in accordance

with the tequirements of Fedetal Rule of Civil Procedute 4. Plant Genetic
Seeds,933 F. Supp. 579, 526 (À4.D.N.C. 1996) (citation

51s.,

N.V.

u. Ciba

omitted). "In determining whether the

plaintiff has satisfied his butden, the technical tequitements of service should be constued
liberally as long as the defendant had actual notice of the pending suit." Elkins

u. Broome,2'1.3

F.R.D. 273,275 (À4.D.N.C.2003) (citing Karls¡on u.Røbinoøit7,318 F.2d 666,668-69 (4th Cir.
1'963)). "\ühen there is acítaI notice, everT technical violation of the rule or failure of stdct

compliancemay notinvalidate the service of process. But the rules are there to be followed,
and plain tequitements

fot the means of effecting service of ptocess may not be ignored."

Annco, Inc. y. Penrod-Starffir Bldg.

S1ts.,

1nc.,733 F.2d 1087, 1039 (4th Cir. 1934).

Hete, Defendant Nauseef argues that this Court lacks personal jurisdictional over him
because

Plaintiff failed to obtain effective service of process. (Docket Entry

Federal Rule

of Civil Ptocedure 4(e) ptovides that

21,

at 5-7.)

service upon an individual may be

accomplished by eithet personally deliveting a copy of the sununons and the complaint to the

6

individual, "leaving a copy of each at the individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there," or delivering them to "^fl agent
authodzed by appointment or by law to teceive service of ptocess." Fed. R. Civ. P. 4(e). The

rule also provides that service of process may be accomplished pursuant to the laws of the
state in which the district court resides.

fot all ptactical

process are vittually identical

Elkins,213 F.R.D .

^t

Id. "North

Catolina's tequirements fot service

purposes with the tequitements

of

of Rule 4."

27 5.

Plaintiff argues that Defendant Nauseef received propet service when

^

copy of the

summons and the complaintwete hand deliveted to an employee of his law fum by the process
server on

a

daywhen Defendant Nauseef was not present at his office. (Docket Entry 30 at

3.) In making this argument, Plaintiff

relies upon the holdingtn Storel u. Hailey in which the

North Carohna Coutt of Appeals found sufficient service of process when
complaint and summons were left with

^

^

copy

of the

pattner at the law office where the defendant's

âttorn€y and appointed tesident process agent wotked. 114 N.C. App. 173,1,80,441. S.E.2d

602,606 (1,994). That court's reasoning centeted on the fact that the registered agent was in
a pattnetship

wrth the attorney who actually received the documents, and pursuant to Notth

Carolina Rule of Civil Ptocedure 40(7)(a), service on a general or limited partnership can be
can be accomplished by deliveting a copy

partner. Id.,

44'1,

S.E.2d

^t

of the summons and complaint to any general

606.

Storel is distingurshable

from the case at hand because there is no evidence to

suggest

that the individual employee who took the summons and complaint from Plaintiffs ptocess
server was Defendant Nauseefs process agent

7

ot his law pattnet.

(See AfÇtdavit

of Service,

Docket Entry 8 at 1.) The Affidavit of Service metely states that the process server delivered
"Summons to Robet Nauseef at

1,21,

E Patish Street, Durham, NC. 27701." (d.) Under

North Carolina law, to demonstate sufficient ptoof of petsonal service when a defendant

is

not personally served with the complaint and summons, the process server must "state in such
afftdavttwhen, whete and with whom such copy was left." N.C.G.S.

S

1-75.10(b). "The filing

of an afîtdavtt of service that complies with the tequitements set out in [N.C.G.S. S 1-75.10]
creates a rebuttable presumption

of valid service." Kahiha

u.

Brunson,234 N.C. App. 142,1,47,

758 S.E.2d 648,652 Q01,4) (emphasis added).

Here, rather than state the name

of the employee who took the complutt

and

summons and the time at which they were delivered, the Affidavit erioneously implies that
personal sewice was effectuated petsonally and ditectly upon Defendant Nauseef. (Docket

Etttry 8 at 1.) As such, Plaintiff has failed to comply with the service of ptocess tequirements.
Thetefote, this Court lacks personal judsdiction ovet Defendant Nauseef and the Amended
Complaint should be dismissed against him.

See e.g.,

Friedman

u.

Estate of Presrcr,929 F.2d

1,1,51,,

1158 (6th Cu.1,991);RoylI-^øæ PaþerIØorks,Inc. a. Pest-Gaard Pr0d.,Lnc.,240F.2d81,4,816 (5th

Clr. 1957)
stahlte

("[]t

is settled law that, without personal service of process in accordance with

of the United States or the law of the

state

in which the suit is filed, the court

a

[i]s

without jurisdiction to render a personal judgment against [defendant].").

On altetnative gtounds, Defendant Nauseef atgues that dismissal is
putsuant to Federal Rule of Civil Procedute 12þ)(6).,

t

apptopriate

a modon to dismiss putsuant to Rule

Neithet Plaintiffs response nor his amended response to Defendant Nauseefs Motion to Dismiss

addtess the 12þ)(6) grounds fot dismissal set forth in Defendant's Motion to dismiss. (Jea Docket
Entdes 30, 33.) Fot the reâsons set forth tn Kinetic Concepts, Inc. a. ConaaTec Inc., No. 1:08CV918,201.0

I

12þ)(6) tests the sufficiency of the complaint. Edwards u. Citjt of Goldsbom, 178 F.3d 231,243
(4th Cit. 1,999). A complaint that does not "contain sufficient facttal matter, accepted âs true,

to 'state

a claim

to relief that is plausible on its f^ce"' must be dismissed. Ashcroft

u.

Iqbal, 556

U.S. 662, 678 Q009) (quoting BellAtlantic u. Twombþ,550 U.S. 544, 570 Q007)). ",{. claim has

facial plausibility when the plaintiff pleads factual content that allows the coutt to dtaw the
reasonable inference that the defendant is liable for the misconduct." Id.; rce also Simmons
United Mortg. and Laan Inu., I

I (,

u.

634 F.3d 754,768 (4th Cir. 201,1) ("Or a Rule 12(bX6)

motion, a complaint must be dismissed if

it does not allege enough facts to state a claim to

telief that is plausible on its face.") (citations and quotations omitted). The "court accepts all
well-pled facts as

tue

and construes these facts in the light most favotable to the plaintiff,"

but does not consider "legal conclusions, elements of a cause of action, and bare assertions
devoid

of

factual enhancementt]

.

. unwarranted inferences, unreasonable conclusions, ot

Ltd.

a.

Conwmerffiirlczry 1nc.,591 F.3d 250,255 (4th Cir. 2009)

arguments." Nemet

Cheurolet,

(citations omitted).

In other words, the standard requires a pla:nttff to articulate facts, that,

when accepted as true, demonsttate the plaintiff has stated a clakn that makes it plausible he
is entitled to telief. Francis u. Giaconelli,588 F.3d 186, 1,93 (4th Cir. 2009) (quoting lqbal, 556
U.S. at 678, and.Twombþ,550 U.S.

at

557),.

In the instant matter, Defendant Nauseefs Motion to Dismiss should also be granted
because

Plaintiffs Amended Complaint fails to state any claims fot which telief may be

WL1,667285, at x6-8 &nn.1.2,13 ${.D.N.C. Apr. 23,201,0) (unpublished), Plaintiffs failure to address
Defendant Nauseefs argument tegatding Rule 12þ)(6) is tantamount to a concession that generally
wartants telief putsuant to Local Rue 7.3(<). Nevertheless, the Court will addtess this atgument on
the merits.
9

granted. Plaintiffs first claim against Defendant Nauseef is fot defamation under North
Carchna law, which requires that a plainlff ,"allege that the defendant caused irj,rry to the

plaintiff by making false, defam^tory statements of ot concerning the plaintiff, which wete
published to a third person." Bo1æ dz hley PIJ-C u. Cooper, 153 N.C.Á.pp. 25,29, 568 S.E.2d

893,897 Q002) (citation omitted). According to the Complaint, Defendant Nauseef made
libelous statements about Plaintiff which were published to the NCDOJ. (Am. Compl. tltj91-

92.) \)7hile the Court must tteat the allegations of the Complaint

as true when detetmining

the sufficiency of the Complaint, such allegations must nevertheless entitle Plaintiff to relief
under some legal theory.
(S.D.\X/.Va. 1968)

See l-nuender

a. Unind Mine lØorþ.ers of Am., 285 F.Supp. 869,

("It is axiomatic that a complaint may be dismissed for failure to

87

4

state a

claim . . . [*h.t] the disclosute of facts . . . necessatily defeatfs] the claim.").
The statements made by Defendânt Nauseef in his letter were in response to an inquiry
by the NCDOJ into the allegations made against his client, Millennium. (Docket Entry 1-5.)

As such, the statements v/ere made in the course of a judicial proceeding and therefore
"absolutely privileged and will not support a civil action for defamation, even

malice." McManawal

u.

LDS Famiþ

Serus., 1nc.,208

if

are

made with

N.C. ,\pp. 569 (table) ,201,0 WL 54201,48,

at*9 (Dec. 21,,201,0) (quoting/anesu. Coward,193 N.C. App.233,6665.8.2d877,879 (2008).

Notth Catolina courts have adopted a broad definition of "judicial proceedings," and have
construed the term to cover quasi-judicial ptoceedings where public administtative offices
"investigate facts, ot ascettain the existence

of facts, and draw conclusions from them, as a

basis fot thek official action." Angel u. IYard,43 N.C. App. 288, 293,258 S.E.2d 788,792
(1,979) (quoting Black'¡ L.aw Dictionary 1.41.1,

(4th ed. rev. 1968)). The NCDOJ (Consumer

10

Protection Division) is precisely this type

of

entity, as

it

ptovides a fotum

to

conduct

investigations when complaints ate lodged against North Catolina businesses.3 Therefore, so

long as Defendant Nauseefs statements made in his letter to the Division ate "suffìciently
telated" to the soutce of the complaint, they are absolutely privileged.

See e.g.,

Harrnan u. Belk,

165 N.C. App. 819, 825,600 S.E.2d 43,48 Q00a); Scott a. Statesuille Pþwood dv Veneer C0.,240

N.C. 73, 76,81. S.E.2d 746,1,49 (1954). The Court concludes that the statements dfuectly telate

to the termination of Plaintiffs membership at Miliennium, which was the ptecise reason
Plaintiff filed his complaint with the Consumet Protection Division. (Am. CompI.I65;
also

see

Docket Entry 1,-4.) Because the allegations in the defamation claim fall within the scope

of absolute immunity for statements made in judrcial proceed,ings, the Court should gtant the
motion to dismiss with tespect to this claim.

See e.g., MaTTucco a.

North Carolina Bd. Of Medical

Examinen,3l N.C. App.47,51,,228 S.E.2d 529,532(1,976) (extendingabsoluteptivilege ftom
defamation to communications with the Board of Medical Examinets in the petformance

of

theit quasi-judicial duties).
The Court should also dismiss Plaintiffs claims for intentional or negligent infliction

of emotional distress and punitive damages against Defendant Nauseef. As these claims arise

ftom the same conduct Plaintiff alleged in his defamation claim, allowing these claims to
ptoceed would undermine the public policy grounds for allowing ptotection
made

in judicial ptoceedings. See McMaruaway 2010 lfl,

Qr{otth Carolina

immunity

3

See

fot

Cout of

statements

Appeals recognizing that

in judicial proceedings to

it

54201.48,

at *'1.0 (citation omitted)

"has pteviously applied absolute

claims

for

bttp:/ /www.ncdoj.gouf Consumer.a:px Qast visited September 1,4,2017).
"t1

of statements

negligence

ot

intentional

infliction of emotional disffess, where those claims arise out of stâtements made in the course
of judicial proceedings and those statements wete also the basis of a defamation claim");

Jones,

193 N.C. App. at 235, 666 S.E.2d at 880 ("Were plaintiff allowed to pursue the additional
claims . . ., the privilege we have held protects defendant from an action fot defamation would
be eviscetated, and the public policy providing advocates the security to zealously pursue cases

on behalf of their clients would be completely undermined."). Furthermore, these claims
allege metely conclusory statements

of law and arc devoid of any specific facts pertaining to

the nature of Plaintiffs severe mental and emotional anguish. (See Am. Compl. lJI 96-108.)
Thetefore, the,\mended Complaint fails to assert any factsthat would make these claims fot
relief plausible on its face. Iqbal,556 U.S. at678;Twombþ,550 U.S.

^t570.

Plaintiffs final claim for relief stems ftom the allegation that Defendant Nauseef
influenced the Durham County Shedff to avoid effectuating service of process upon him.
(Am. Compl.

I'1T

1,1,3-1,22.)

To state a cIaím fot common law obstruction of justice, Plaintiff

must allege that an action was "intentionally undeftaken by the defendant for the purpose

of

obstucting, impeding, or hindeting the plaintiffs ability to seek and obtain alegaltemedy. . . ."
Blac/<barn u. Carbone,208

N.C. App. 519, 527,703 S.E.2d 788,795 (2010). The Amended

Compliant metely alleges that the Durham County Sheriff did not serve Defendant Nauseef
based on his connections

to the orgatizatton. (Am. Compl.

n20.) It does not expand

upon

Defendant Nauseefs alleged connections nor does it claim any affitmative action to obsttuct

or impede justice on the patt of Defendant Nauseef, which is a bedrock element of the
conunon law tott of obsttuction of justice. Blackburn,z08 N.C. App.
795;

see

at 527,703 S.E.2d at

alto Broughton u. McClatcþt I\ewspapers, 1nc.,161 N.C. App. 20, 33, 588 S.E.2d 20,30

1,2

Q003) ("p]laintiff presented no evidence that her

case

was

in some way

judicially

prevented, obstructed, impeded ot hindered by the acts of defendants. Thete is no evidence
as

to the disposition of that action or

^rLy

showing that fdefendant's conduct] advetsely

impacted that case."). As such, this claim against Defendant Nauseef should also be dismissed.

IV.

CONCLUSION

Based upon the evidence presented in this case, Plaintiff tailed to ptopetly effectuate

service

of

process

on Defendant Nauseef, therefote depdving the Court of

petsonal

jurisdiction over him. Alternatively, Plaintiff has failed to plausibly state a claim upon which

relief may be granted. For such reasons,

IT IS HEREBY RECOMMENDED

that

Defendant Nauseefs Motion to Dismiss (Docket E.rtty 19) be GRANTED and Plaintiffs
Motions fot Entry of Default and fot DefaultJudgment (Docket Entdes 31,,34) be DENIED.

U
September 75,2077
Dwham, Notth Caroltna

1,3

oe L. Webstet
States Magistrate Judge