Kelly v. Conner et al

Filing 21

ORDER granting 7 Motion to Dismiss, Defendant Kerl is dismissed without prejudice; granting 10 Motion to Dismiss, Defendant Conner is dismissed without prejudice;; granting 17 Motion to Dismiss, Defendant North Carolina Private Protective Services Board is dismissed without prejudice; granting 20 Motion to Amend complaint as to remaining defendants. Signed by Senior Judge Graham Mullen on 12/21/2012. (blf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-00448-GCM

JUSTIN SHERILL KELLY,

)
)
Plaintiff,
)
)
vs.
)
)
SARAH H. CONNER et al.,
)
)
Defendants.
)
____________________________________)

ORDER

THIS MATTER comes before the Court on Defendant Kerl’s Motion to Dismiss1 [Doc.
No. 7]; Defendant Sarah Conner’s Motion to Dismiss2 [Doc. No. 10]; Defendant North Carolina
Private Protective Services Board’s Motion to Dismiss3 [Doc. No. 17].

The Court has

considered all of the motions as well as Plaintiff’s opposition to each. Also before the Court is
Plaintiff’s Motion to Amend Complaint. [Doc. No. 20].4
Plaintiff brings this action against Defendants pursuant to 42 U.S.C. § 1983 for
deprivation of his Fourth and Fourteenth Amendment rights and under North Carolina state law
for various torts and alleged RICO violations. Plaintiff filed this action in Mecklenburg County

1

Although Defendant Kerl labeled his motion pursuant to Rule 12(b)(6), the Court notes that the grounds
in support of the motion are pursuant to Rule 12(b)(4), therefore the Court will consider the motion to dismiss
pursuant to Rule 12(b)(4).
2

Defendant Conner moved to dismiss pursuant to Rule 12(b)(1), (b)(2), (b)(4) and (b)(6).

3

Defendant North Carolina Private Protective Services Board moved to dismiss pursuant to Rule 12(b)(1),
(b)(2), (b)(4), (b)(5) and (b)(6).
4

Plaintiff contends that all defendants except North Carolina Private Protective Services Board, consented
to his request to amend his complaint. [Doc. No. 20-2 at 3].

1

Superior Court on March 23, 2012 and summons was issued as to each moving Defendant on
March 23, 2012. On July 23, 2012, Defendant Kerl filed a Notice of removal of this matter to
this Court. [Doc. No. 1]. Each moving party is asking that this Court dismiss this action against
them based on Plaintiff’s failure to serve process on them within the time provided under the
North Carolina Rules of Civil Procedure.
ANALYSIS
Under the North Carolina Rules of Civil Procedure, a civil action is commenced with the
filing of a complaint and civil summons. The complaint and civil summons must be served upon
the opposing party within sixty (60) days of the issuance of the original summons. N.C. Gen.
Stat. 1A-1, Rule 4(c). The summons may be kept alive by obtaining an extension or by the filing
of an alias and pluries summons which must be done within ninety (90) days of the issuance of
the original summons. N.C. Gen. Stat. § 1A-1, Rule 4(d)(1). Such alias and pluries may be reissued indefinitely until service is completed upon the defendant. Id. If a defendant has not been
served with a summons within (60) days of the issuance of the summons and an alias and pluries
summons is not obtained within (90) days of the issuance of the original summons, the summons
as well as the complaint is deemed to have expired. Lackey v. Cook, 40 N.C. App. 522, 528
(1979).
North Carolina Rule of Civil Procedure 4(e) provides as follows:
Summons-Discontinuance. When there is neither endorsement by the
clerk nor issuance of alias and pluries summons within the time specified
in Rule 4(d), the action is discontinued as to any defendant not therefore
served with summons within the time allowed.

This rule makes clear that once an original summons or an alias and pluries summons has

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expired, the action is deemed to have terminated. Lackey, 40 N.C. App at 527-28. Here,
Defendants Kerl and Conner were served with the summons and complaint on June 25, 2012 (94
days after issuance of the summons) and Defendant Board was served on June 20, 2012 (89 days
after issuance of the summons). Plaintiff agrees that this is the date that he served Defendants
Kerl and Conner and that he did not serve these Defendants within (60) days of the issuance of
the summons in state court. [Doc. No. 12 at 3]. Plaintiff also agrees that he did not obtain an
alias and pluries summons as to the moving Defendants within (90) days of the issuance of the
original summons which would have kept his original summons alive. [Doc. No. 12-1 at 2-10].
Therefore, the summons and complaint as to the moving Defendants has expired and the action
must be dismissed without prejudice.5 Plaintiff asserts that on September 7, 2012, he filed an
additional alias and pluries summons, which allows him an additional 60 days to serve the
defendants.6 [Id., Doc. No 14 at 5]. In this instance the action is deemed to commence on the
date of such summons, not the date of initial filing. N.C. Gen. Stat. § 1A-1, Rule 4(d)-(e). This
Court agrees, however, at this point, it is clear that Plaintiff did not serve the moving defendants
within 60 days of the issuance of the original summons, nor did he obtain an alias and pluries
summons within 90 days of the issuance of the original summons. Therefore, notwithstanding
Plaintiff’s September 7, 2012 filing for alias and pluries summons against the Defendants, the
original summons has expired and the action must be dismissed without prejudice as to the

5

Furthermore, even under the Federal Rules of Civil Procedure (although no summons was issued in
federal court), 120 days has passed since this case was removed to federal court and therefore, this Court may
dismiss without prejudice under the Federal Rules of Civil Procedure as well.
6

Although he filed an alias and pluries summons on September 7, 2012, Plaintiff has still not served the
moving defendants. The Court notes that more than 60 days has elapsed since September 7, 2012 when Plaintiff
filed an alias and pluries summons.

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moving Defendants.7
IT IS, THEREFORE ORDERED:
(1)

Defendant Kerl’s Motion to Dismiss is GRANTED [Doc. No. 7] and Defendant
Kerl is dismissed without prejudice;

(2)

Defendant Conner’s Motion to Dismiss [Doc. No. 10] pursuant to Rule 12(b)(4) is
GRANTED and Defendant Conner is dismissed without prejudice;

(3)

Defendant Conner’s Motion to Dismiss [Doc. No. 10] pursuant to Rule 12(b)(1),
(b)(2), (b)(5) and (b)(6) is dismissed as moot based on this Court’s ruling;

(4)

Defendant North Carolina Private Protective Services Board’s Motion to Dismiss
[Doc. No. 17] pursuant to Rule 12(b)(4) is GRANTED and Defendant North
Carolina Private Protective Services Board is dismissed without prejudice;

(5)

Defendant North Carolina Private Protective Services Board’s Motion to Dismiss
pursuant to Rule 12(b)(1), (b)(2), (b)(5) and (b)(6) is dismissed as moot based on
this Court’s ruling.

(6)

Defendants Kerl, Conner and North Carolina Private Protective Services Board
are dismissed without prejudice;

(7)

Plaintiff’s Motion to Amend Complaint [Doc. No. 20] is GRANTED as to the
remaining defendants.

7

Plaintiff contends that he mailed a request to waive issuance of summons to defendants under Federal
Rule of Civil Procedure 4(d) on August 21, 2012 and that since defendants have not returned said waiver, each shall
bear the expenses associated with such service. The Court notes that Defendants Kerl and Conner filed their current
motions contesting service on August 21, 2012 and September 9, 2012 respectively, which is within the thirty days
referenced in the Rule within which to return the waiver. Defendant Board filed its motion on October 16, 2012,
which is beyond the “at least thirty days” referenced in the Rule within which to return the waiver but is not an
“unreasonable” amount of time within which to contest service especially given that Defendant Board contested
service in state court prior to the removal of this case to federal court.

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SO ORDERED.
Signed: December 21, 2012

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