CMBS LLC et al v. DAVIE COUNTY et al

Filing 10

MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 3/31/2021; that Defendant's Motion to Dismiss, (Doc. 7 ), is GRANTED and that all claims against Defendant Davie County Sheriff J.D. Hartman are DISMISSED WITHOUT PREJUDICE. A judgment reflecting this Memorandum Opinion and Order will be entered contemporaneously herewith. (Sheets, Jamie)

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

CMBS LLC, FISH GAME KINGS,
and NLG SOFTWARE, LLC,
Plaintiffs,
v.
DAVIE COUNTY1 and
SHERIFF J.D. HARTMAN,
Defendants.

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1:20CV71

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiffs originally filed this action in state court;
thereafter, Defendants removed the case to this court. (Doc. 1;
Exs. 1, 2.) The Complaint alleges Plaintiffs “create, vend,
operate and maintain software at three (3) businesses in Davie
County,” (Complaint (“Compl”) (Doc. 3) ¶ 5), and names as
Defendants Davie County and Davie County Sheriff J.D. Hartman
(“Hartman”), in his official capacity. (Id. ¶ 4.) Plaintiffs
seek declaratory and injunctive relief arising out of the
construction and validity of the “Sweepstakes and Gambling

on January 13, 2020, prior to removal, Plaintiffs filed a
Notice of Voluntary Dismissal as to Defendant Davie County.
(Doc. 1, Ex. 1 at 67.)
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Criminal Statutes with the meaning of N.C. General Statute
1-254” as well as related determinations. (Id. at 7-9.)
Hartman has moved to dismiss the Complaint “because the
plaintiffs have not served the defendant with process and the
time for serving a summons has expired.” (Doc. 7 at 1.) The
motion was filed on April 13, 2020; Plaintiffs have not filed a
response to the motion to dismiss. The motion to dismiss is
ripe. After careful review, this court finds the motion to
dismiss should be granted.
I.

FACTS
Plaintiffs filed their Complaint in state court on

January 13, 2020. (Doc. 1, Ex. 1 at 3.) A summons was issued to
defendants Davie County and Hartman on that same day. (Id.,
Ex. 1 at 1; Doc. 4.) However, it appears that on January 13,
2020, prior to removal, Plaintiffs filed a Notice of Voluntary
Dismissal as to Defendant Davie County. (Id., Ex. 1 at 67.) In
light of the dismissal, this court finds the only named
defendant in this matter is Davie County Sheriff J.D. Hartman.
On January 23, 2020, Hartman removed the case to this court.
(Doc. 1.)
Defendant alleges jurisdiction based upon diversity and
federal question, 28 U.S.C. §§ 1332, 1441(b). (Doc. 1 at 2.)
This case has now been pending for more than a year and nothing
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has been filed to indicate service of process has been effected
as to Hartman.
Defendant has filed the affidavit of E. Edward Vogler, Jr.
(“Vogler”), county attorney for Davie County. (Doc. 9 ¶ 2.)
Vogler describes the fact that Plaintiffs’ counsel delivered a
copy of the complaint, but that neither defendant has been
served process in this case. (Id. ¶ 3.)
II.

ANALYSIS
28 U.S.C. § 1448 provides in part that:
In all cases removed from any State Court . . .
in which any one or more of the defendants has not
been served with process or in which the service has
not been perfected prior to removal, or in which
process served proves to be defective, such process or
service may be completed or new process issued in the
same manner as in cases originally filed in such
district court.

28 U.S.C. § 1448.
When a case is removed to federal court, a
plaintiff may be afforded additional time to complete
service or to obtain issuance of new process if, prior
to the case’s removal, “service of process has not
been perfected prior to removal,” or “process served
proves to be defective.” 28 U.S.C. § 1448. Federal
Rule of Civil Procedure 4(m) dictates that the
plaintiff serve process within 120 days or be subject
to a dismissal of her federal action without
prejudice.
Rice v. Alpha Sec., Inc., 556 F. App’x 257, 260 (4th Cir. 2014).
In this case, the record reflects Hartman has not been served
with process before removal or following removal.
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Under federal law, the time for service has long passed.
Fed. R. Civ. P. 4(m) (requiring service within 90 days unless
good cause exists for the failure to serve). (See Doc. 4.) Under
North Carolina law, a summons must be served on a defendant
“within 60 days after the date of the issuance of summons.” N.C.
Gen. Stat. § 1A-1, Rule 4(c). If a defendant is not served
within 60 days, then under North Carolina law the plaintiff may
secure an endorsement for an extension of time or an alias or
pluries summons, but all within 90 days after the issuance of
the summons. N.C. Gen. Stat. § 1A-1, Rule 4(d).
Rule 4(m) of the Federal Rules of Civil Procedure instructs
the court to dismiss without prejudice “on motion or on its own”
the action against the defendants who have not been served
within 90 days following the filing of the complaint. Fed. R.
Civ. P. 4(m).
It appears to the court that Plaintiffs have failed to
comply with the provision of Fed. R. Civ. P. 4(m), and it does
not appear Plaintiffs have complied in a timely fashion with
service of the summons under North Carolina law. This court
therefore finds that dismissal without prejudice of Plaintiffs’
claims against Hartman is required. See Fed. R. Civ. P. 4(m).

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IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss,
(Doc. 7), is GRANTED and that all claims against Defendant Davie
County Sheriff J.D. Hartman are DISMISSED WITHOUT PREJUDICE.
A judgment reflecting this Memorandum Opinion and Order
will be entered contemporaneously herewith.
This the 31st day of March, 2021.

__________________________________
United States District Judge

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