Mandizha v. Bank of America Corporation et al

Filing 30

ORDER denying 28 Motion for Reconsideration re 27 Order on Motion for Entry of Default; FURTHER ORDERED that Defendant TEKsystems, having actual notice of this suit brought by a pro se plaintiff, is hereby ORDERED to respond to Plaintiffs complaint within 60 days of the issuance of this Order. Signed by District Judge Robert J. Conrad, Jr on 8/20/2018. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-00258-RJC-DSC
CHARLES MANDIZHA,

)
)
Plaintiff,
)
)
vs.
)
)
BANK OF AMERICA CORPORATION
)
and TEKSYSTEMS,
)
)
Defendants.
)
________________________________________ )

ORDER

THIS MATTER comes before the Court on Charles Mandizha’s (“Plaintiff’s”)

pro se Motion for Reconsideration, (Doc. No. 28), and this Court’s previous Order
denying Motion for Entry of Default, (Doc. No. 27). TEKsystems has filed a Response
in Opposition, (Doc. No. 29), and the matter is ripe for the Court’s consideration.
I.

BACKGROUND
Plaintiff filed his pro se complaint on May 12, 2017. (Doc. No. 1). Plaintiff

attempted to serve Defendant TEKsystems twice. First, Plaintiff sent a Summons to
Megan O’Meara, TEKsystems’ Associate General Counsel. (Doc. Nos. 13 at 1; 31-1
¶¶7–8). Second, Plaintiff sent a Summons to Jerry H. Walters, Jr., TEKsystems’
outside counsel. (Doc. No. 3-1 ¶9). Mr. Walters had previously contacted Plaintiff,
informing him that he failed to properly serve TEKsystems. (Doc. No. 10 at 1). Mr.
Walters attempted to aid Plaintiff by sending a waiver of service form but, rather
than completing that form, Plaintiff sent his second Summons to Mr. Walters by
certified mail. (Doc. No. 7). Plaintiff thereafter filed his Motion for Entry of Default
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as to TEKsystems. (Doc. No. 12). The Court denied this Motion after considering
Plaintiff’s failure to properly serve TEKsystems. (Doc. No. 27). Plaintiff now moves
the Court to reconsider its Order. Plaintiff argues that, as a pro se litigant, he is
“trying his best to get justice in this matter . . . .” (Doc. No. 28 ¶1). Plaintiff states
that he “sent summons to representatives of the two defendants who were not
necessarily officers but were already involved and familiar with the case. Bank of
America responded timely to the summons. Teksystems did not.” (Id. ¶2). Plaintiff
believed that because Mr. Walters had the authority to file a waiver of service, he
also had the authority to receive a Summons on behalf of TEKsystems. (Id. ¶4).
II.

ANALYSIS
Plaintiff correctly points out that pro se litigants are afforded “greater latitude”

than represented litigants “to correct defects in service of process.”

Miller v.

Northwest Region Library Bd., 348 F. Supp. 2d 563, 567 (M.D.N.C. 2004). However,
this greater leeway does not entitle pro se plaintiffs to entry of default. See Norfolk
S. Ry. Co. v. Old Stage Partners, LLC, No. 5:07-CV-457-F, 2008 WL 5220219, at *3
(E.D.N.C. Dec. 12, 2008) (explaining the plaintiff’s burden in showing proper service
and concluding that “[w]ithout proper service being established, this court cannot
allow the Motion for Default.”). Default is an extreme remedy. The Fourth Circuit
has long affirmed its policy against it, preferring claims and defenses to be decided
on their merits. Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d
413, 417 (4th Cir. 2010).
“[T]he rules are there to be followed, and plain requirements for the means of

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effecting service of process may not be ignored.” McCreary v. Vaughan-Bassett
Furniture Co., 412 F. Supp. 2d 535, 537 (M.D.N.C. 2005), report and recommendation
adopted (Jan. 26, 2006) (citing Armco, Inc. v. Penrod–Stauffer Bldg. Sys., Inc., 733
F.2d 1087, 1089 (4th Cir. 1984). The “greater latitude” awarded to pro se litigants
entitles them to more lenient enforcement of the Federal Rules of Civil Procedure,
including service of process.

The Fourth Circuit has liberally construed the

provisions of Rule 4, especially where actual notice is received.

Karlsson v.

Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963). In fact, courts have gone so far as to
excuse inadequate service of process when pro se parties are involved. See Wrenwick
v. Berry Glob. Films, LLC., 3:17-CV-394, 2018 WL 3636572, at *2 (W.D.N.C. July 31,
2018) (declining to invalidate service of process when a pro se plaintiff served an
improper party of an LLC); MJL Enters., LLC v. Laurel Gardens, LLC, No. 2:15cv100,
2015 WL 6443088, at *5 (E.D. Va. Oct. 23, 2015) (disregarding the imperfect service
of a pro se plaintiff when it was calculated to give the defendant actual notice). “While
the Supreme Court has noted that rules concerning service of process must be
“strictly followed,” … it has focused on whether there is a ‘sufficient connection
between the person served and the defendant to demonstrate that service was
reasonably calculated to give the defendant notice of the action against it.’” MJL
Enters., LLC, 2015 WL 6443088, at *5.
While the Court denies Plaintiff’s Motion to Reconsider due to the extreme
circumstances of granting an entry of default, it recognizes that TEKsystems has
actual notice of Plaintiff’s claims against it. Plaintiff attempted to serve TEKsystems

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twice and TEKsystems went so far as to authorize its outside counsel, Mr. Walters,
to provide Plaintiff with a waiver of services form. (Doc. No. 29 at 2). In line with
the above-mentioned leniency to pro se parties, the Court hereby finds service of
process sufficient and ORDERS TEKsystems to otherwise respond to Plaintiff’s
Complaint within 60 days of the issuance of this order.
III.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Motion for Reconsideration, (Doc. No. 28), as to this Court’s
previous Order denying Motion for Entry of Default, (Doc. No. 27), is
DENIED;
2. Defendant TEKsystems, having actual notice of this suit brought by a pro

se plaintiff, is hereby ORDERED to respond to Plaintiff’s complaint within
60 days of the issuance of this Order.
Signed: August 20, 2018

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