Scott v. North Carolina Department of Revenue
Filing
18
ORDER deferring ruling on 12 Motion to Dismiss ; granting 15 Motion for Extension of Time for Service of Process. Signed by Magistrate Judge David S. Cayer on 3/25/2014. (eef)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:13-CV-00294-MOC-DSC
DORIS KIMBERLY SCOTT,
Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF
REVENUE,
Defendant.
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MEMORANDUM
AND ORDER
THIS MATTER is before the Court on the “Defendant’s Motion to Dismiss,” Doc. 12,
filed January 21, 2014 and “Plaintiff’s Motion for Extension of Time to Serve Complaint,” Doc.
15, filed February 7, 2014 and the parties’ associated briefs and exhibits, Docs. 13, 14, 16 and
17.
This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1), and these Motions are now ripe for consideration.
Having fully considered the arguments, the record, and the applicable authority, the Court
will treat Defendant’s Motion to Dismiss for insufficient service and insufficient service of
process as a motion to quash and grant the Motion. Additionally, the Court grants Plaintiff’s
Motion for Extension of Time to Serve Complaint. The Court will defer ruling on Defendant’s
Motion to Dismiss under Rule 12(b)(6) unless and until service is perfected, as discussed below.
I. PROCEDURAL AND FACTUAL BACKGROUND
This is an action seeking legal, equitable and declaratory relief under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the common law and
public policy of the State of North Carolina. Plaintiff’s claims arise from alleged unlawful
discrimination based upon retaliation and wrongful termination of her employment by Defendant
North Carolina Department of Revenue.
On May 14, 2013, Plaintiff filed her Complaint, within ninety (90) days of receipt of the
EEOC Right-to-Sue Notice, alleging unlawful discrimination based upon retaliation and
wrongful termination of her employment. Plaintiff seeks monetary and injunctive relief. On
September 6, 2013, copies of the Summons and Complaint were received by Defendant’s Chief
Executive Officer, Lyons Gray. On January 21, 2014 Defendant filed this Motion to Dismiss
asserting lack of subject matter jurisdiction, lack of personal jurisdiction, improper service and
failure to state a claim upon which relief can be granted.
II. DISCUSSION
“Where a motion to dismiss is filed based on insufficient process or insufficient service
of process, affidavits and other materials outside the pleadings may be properly submitted and
considered.” El v. Max Daetwyler Corp., No. 3:09-cv-415, 2011 WL 1769805, *8 (W.D.N.C.
May 9, 2011) aff'd, 451 Fed. Appx. 257 (4th Cir. Oct. 20, 2011).
[T]he party on whose behalf service is made has the burden of establishing its
validity when challenged; to do so, he must demonstrate that the procedure
employed satisfied the requirements of the relevant portions of Rule 4 and any
other applicable provision of law.
Id. (quoting Light v. Wolf, 816 F.2d 746, 751 (D.C.Cir.1987)). Where the procedural
requirements for sufficient process and service of process are not satisfied, a court lacks personal
jurisdiction over the defendant. Id. (citing Gorman v. Ameritrade Holding Corp., 293 F.3d 506,
514 (D.C. Cir. 2002)).
Defendant contends that Plaintiff's Complaint should be dismissed because of insufficient
process and insufficient service of process. A court cannot exercise personal jurisdiction over a
defendant until he has been served with a summons. Omni Capital Int'l v. Rudolph Wolff & Co.,
Ltd., 484 U.S. 97, 104 (1987). Actual notice of a lawsuit is insufficient to confer jurisdiction
over the person of a defendant, and improper service of process, even if it results in notice, is not
sufficient to confer personal jurisdiction. Bowman v. Weeks Marine, Inc., 936 F.Supp. 329,
336–37 (D.S.C. 1996) (citing Mid–Continent Wood Prods., Inc. v. Harris, 936 F.2d 297 (7th
Cir.1991)), abrogated on other grounds by, Murphy Bros., Inc. v. Michetti Pipestringing, Inc.,
526 U.S. 344 (1999)).
If it appears that effective service can be made and the delay resulting from ineffective
service has caused no prejudice to the defendant, the Court may quash the service rather than
dismiss the action. Belcher v. Walz, No. 1:12cv00031, 2012 WL 4458190, at *2 (W.D. Va.
August 30, 2012). “Where ‘the first service of process is ineffective, a motion to dismiss
should not be granted, but rather the Court should treat the motion in the alternative, as one to
quash the service of process and the case should be retained on the docket pending effective
service.’ Id. (quoting Vorhees v. Fischer & Krecke, 697 F.2d 574, 576 (4th Cir.1983)). The
case should only be dismissed when there is no reasonable likelihood that the plaintiff will be
able to achieve proper service on the defendant. Id. (citing Umbenhauer v. Woog, 969 F.2d 25,
31 (3rd Cir.1992)).
The Federal Rules of Civil Procedure provide two methods for service of a summons
and complaint on a state-created governmental organization such as the North Carolina
Department of Revenue:
by (A) delivering a copy of the summons and of the complaint to its chief
executive officer; or (B) serving a copy of each in the manner prescribed by
that state's law for serving a summons or like process on such a defendant.
Fed.R.Civ.Pro. 4(j)(2). The North Carolina Rules of Civil Procedure provide that an agency
of the State may be served:
By personally delivering a copy of the summons and of the complaint to the
process agent appointed by the agency in the manner hereinafter provided; by
mailing a copy of the summons and of the complaint, registered or
certified mail, return receipt requested, addressed to said process agent; or by
depositing with a designated delivery service authorized pursuant to 26
U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to
the process agent, delivering to the addressee, and obtaining a delivery
receipt.
N.C. Rules of Civil Pro. 4(j)(4). The process agents for the North Carolina Department of
Revenue upon whom process may be served are Chief Operating Officer Jeff Epstein and
General Counsel Daniel Garner at P.O. Box 871, Raleigh, North Carolina 27602. These
names and addresses are listed on the website of the North Carolina Attorney General and
are considered public records.
Plaintiff attempted service by mailing the Summons and Complaint to the chief
executive officer of the Department, Secretary Lyons Gray, by certified mail return receipt
requested. The mail was addressed to the physical address of the Department at 501
North Wilmington Street in Raleigh. Plaintiff offers the certified mail receipt stamped
with the name of Felix Desantis, Director of the Mail Services Center in Raleigh, as proof
of service.
According to Mr. Desantis’ Affidavit, in accordance with the standard operating
procedures for mail addressed to a street address in Wake County occupied by a State
entity, this mail was directed to the State's Mail Service Center for processing. Mail that
requires a signature is stamped by various employees with the date and the signature of
Felix Desantis.
The Mail Service Center receives more than 300 mail receipts for
signature each business day.
After processing, the mail is transferred to the proper
department. According to Mr. Desantis’ Affidavit, last year the Center handled over 30
million pieces of mail and the Department of Revenue received approximately 6 million
pieces of mail. Mr. Desantis is not a process agent for the Department of Revenue.
Furthermore, according to Secretary Gray’s Affidavit, the Summons and Complaint were
not delivered to h i m .
He was out of the office for major surgery from August 5 until
September 9, 2013, when he returned on a part-time basis.
The Court finds that service of process and process are not proper in this case. Under
Federal Rule of Civil Procedure 4(j)(2)(A), delivering a copy of the Summons and Complaint to
Defendant’s chief executive officer would have been proper service. However, “the word
‘delivering’ in Rule 4(j) indicates that personal service should be made upon that particular
individual.” 4B Fed. Prac. & Proc. Civ. § 1109 (3d. ed. 2013)(collecting cases). By mailing the
Summons and Complaint by certified mail return receipt requested and addressed to Secretary
Gray, Plaintiff did not comply with Rule 4(j)(2)(A).
However, it appears reasonably likely the Plaintiff will be able to achieve proper service
on the Defendant according to the methods prescribed by Rule 4 of the Federal Rules of Civil
Procedure. Consequently, the Court will treat Defendant’s Motion to Dismiss as a motion to
quash the service of process. The Court will grant the motion to quash the service of process on
the Defendant. Additionally, the Court will grant Plaintiff’s Motion for Extension of Time to
Serve Complaint. Plaintiff shall have 14 days from the date of this Order to perfect service and
service of process on Defendant and to file proof of service with the Court.
Defendant has alternatively moved to dismiss the Complaint for failure to state a claim
under Rule 12(b)(6). The Court will defer ruling on this portion of the Motion until service is
properly effected.
SO ORDERED.
Signed: March 25, 2014
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