Sweeting v. Wells Fargo Bank

Filing 7

ORDER granting 3 Defendant's Motion to Dismiss. This matter shall be dismissed without prejudice. Signed by Chief Judge Frank D. Whitney on 9/7/2017. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:17-cv-00309-FDW
MONIQUE SWEETING,
Plaintiff,
vs.
WELLS FARGO BANK,
Defendant.

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ORDER

THIS MATTER is before the Court on Defendant’s Motion to Dismiss (Doc. No. 3) filed
pursuant to 12(b)(2), 12(b)(4), and 12(b)(5) of the Federal Rules of Civil Procedure. The Court
issued an order, in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), informing
Plaintiff or her right to respond and the burden she carried in responding to Defendant’s motion to
dismiss.1 (Doc. No. 4). Plaintiff responded, and Defendant replied (Doc. No. 6). This matter is
now ripe for ruling. For the reasons that follow, Defendant’s Motion to Dismiss is GRANTED.
BACKGROUND
Plaintiff initiated this action by filing a complaint on May 5, 2017, against Defendant
“Wells Fargo Bank” in state court, specifically in the General Court of Justice, District Court

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The Fourth Circuit did not hold in Roseboro that such notice is required for motions to dismiss. Rather, the Fourth
Circuit’s discussion in Roseboro regarding notice was directed to summary judgment motions. See Roseboro v.
Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (“We agree with the plaintiff, however, that there is another side to the
coin which requires that the plaintiff be advised of his right to file counter-affidavits or other responsive material and
alerted to the fact that his failure to so respond might result in the entry of summary judgment against him.”); see also
Norman v. Taylor, 25 F.3d 1259, 1261 (4th Cir. 1994) (“In Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), this
circuit held that pro se plaintiffs must be advised that their failure to file responsive material when a defendant moves
for summary judgment may well result in entry of summary judgment against them.”). Nevertheless, courts routinely
issue Roseboro notices for motions to dismiss, and the Court did so here.

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Division, County of Mecklenburg. (Doc. No. 1-2). Plaintiff had Civil Summons in this action
issued to “Wells Fargo Bank, 8740 Research Dr., Charlotte NC 28262.” (Doc. No. 1-2, p. 2). The
record indicates Plaintiff attempted to serve a copy of her initial pleadings via Certified Mail, by
mailing the documents to “Wells Fargo Bank, 8740 Research Dr., Charlotte NC 28262.” (Doc.
No. 1-2, p. 6). The record also indicates the Summons and Complaint made their way to
Defendant’s legal department via “Interoffice Delivery” several weeks after Plaintiff had filed her
complaint. (Doc. No. 1-2, p. 7). Defendant subsequently removed this action from state court to
this Court on the basis of federal question jurisdiction. (Doc. No. 1). Defendant now moves to
dismiss based on deficient service of process.
STANDARD OF REVIEW
Defendant argues the Court should dismiss the complaint because of insufficient process
pursuant to Federal Rule of Civil Procedure 12(b)(4) and insufficient service of process pursuant
to Federal Rule of Civil Procedure 12(b)(5), and, consequently, lack of personal jurisdiction under
Federal Rule of Civil Procedure 12(b)(2). Under these rules, “the plaintiff bears the burden of
establishing that the service of process has been performed in accordance with the requirements of
Federal Rule of Civil Procedure 4.” Elkins v. Broome, 213 F.R.D. 273, 275 (M.D.N.C. 2003).
Service of process in this case is controlled by North Carolina law. Fed.R.Civ.P. 4(e)
(“[A]n individual ... may be served in a judicial district of the United States by: (1) following state
law for serving a summons in an action brought in courts of general jurisdiction in the state where
the district court is located or where service is made....”); Fed.R.Civ.P. 4(h) (applying Fed.R.Civ.P.
4(e)(1) to service on corporate defendants). Service on corporate defendants may be effectuated

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by sending the summons and complaint by certified mail addressed to “the officer, director or
agent to be served.” N.C. Gen. Stat. § 1A-1; N.C. R. Civ. P. 4(j)(6)(c).
The proper methods of service on corporations are to either (1) “deliver a copy of
the summons and of the complaint to an officer, a managing or general agent, or to
any other agent authorized by appointment or by law to receive service of process,”
or (2) follow the state law rules for effecting service. Fed.R.Civ.P. 4(h)(1). The
North Carolina Rules of Civil Procedure provide that corporations should be served
by delivering or mailing a copy of the summons and of the complaint to either “an
officer, director, or managing agent of the corporation,” someone who appears to
be in charge of that person's office, or to the person authorized to accept service for
the corporation. N.C. R. Civ. P. 4(j)(6).
Brown v. Blue Cross and Blue Shield of North Carolina, 226 F.R.D. 526, 528 (M.D.N.C. 2004).
Where service of process has given the defendant actual notice of the litigation, “the rules,
in general are entitled to a liberal construction. When there is actual notice, every technical
violation of the rule or failure of strict compliance may not invalidate the service of process.”
Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984); see also
Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 2011) (“The provisions of [Rule 4] should be
liberally construed to effectuate service and uphold the jurisdiction of the court, thus insuring the
opportunity for a trial on the merits.”).
This, however, does not give the Court license to ignore the plain requirements for the
means of effecting service of process contained in the rules. See id. Under North Carolina law, “a
plaintiff who fails to comply with [service of process statutes], even where actual notice occurs,
does not properly serve the defendant.” Shaver v. Cooleemee Volunteer Fire Dep’t., No. 1:07-cv175, 2008 WL 942560, at *2 (M.D.N.C. 2008) (citing Stack v. Union Reg’l Mem'l Med. Ctr., Inc.,
614 S.E.2d 378, 382 (N.C. Ct. App. 2005); Greenup v. Register, 410 S.E.2d 398, 400 (N.C. Ct.

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App. 1991); Broughton v. Dumont, 259 S.E.2d 361, 363 (N.C. Ct. App. 1979)). Although Plaintiff
is proceeding pro se, she is held to the same standards regarding service of process:
The filing of a lawsuit is a serious event.... Service rules are structured to ensure
due process and uniformity in the application of procedures which alert those
receiving a corporation's mail that the enclosed lawsuit demands prompt attention.
These rules apply equally to litigants proceeding with or without counsel. Service
of process is not freestyle, and courts are directed not to overlook procedural
deficiencies just because actual notice occurred.
*5 Shaver, No. 1:07-cv-175, 2008 WL 942560, at *2 (citing Stack, 614 S.E.2d at 382; Hoyle v.
United Auto Workers Local Union 5285, 444 F.Supp.2d 467, 474 (W.D.N.C. 2006)). The
Supreme Court has explained the Rules of Civil Procedure apply to all parties before the Court,
including pro se litigants in civil cases:
Our rules of procedure are based on the assumption that litigation is normally
conducted by lawyers. While we have insisted that the pleadings prepared by
prisoners who do not have access to counsel be liberally construed, see Haines v.
Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Estelle v. Gamble, 429
U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), and have held that some
procedural rules must give way because of the unique circumstance of
incarceration, see Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245
(1988) (pro se prisoner's notice of appeal deemed filed at time of delivery to prison
authorities), we have never suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by those who proceed
without counsel. As we have noted before, “in the long run, experience teaches that
strict adherence to the procedural requirements specified by the legislature is the
best guarantee of evenhanded administration of the law.” Mohasco Corp. v. Silver,
447 U.S. 807, 826, 100 S.Ct. 2486, 2497, 65 L.Ed.2d 532 (1980).
McNeil v. United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 1984, 124 L. Ed. 2d 21 (1993)
(emphasis added). Bearing these principles in mind, the Court turns to the merits of Defendant’s
arguments.

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ANALYSIS
Here, Defendant argues personal jurisdiction is lacking because Plaintiff failed to properly
serve Defendant. The burden to prove that process has been executed in accordance with Rule 4
of the Federal Rules of Civil Procedure is on Plaintiff. Plant Genetic Systems v. Ciba Seeds, 933
F.Supp. 519, 526 (M.D.N.C. 1996).
The uncontested record shows Plaintiff neither addressed the Summons and Complaint to
nor attempted to serve process upon an appropriate officer, director, managing agent, or authorized
agent of Defendant Wells Fargo Bank. Indeed, Plaintiff failed to designate any individual in the
summons to be served on Defendant’s behalf. Summons issued to a corporation without the
identification of an officer, director, or managing or authorized agent is defective on its face. Lane
v. Winn-Dixie Charlotte, Inc., 609 S.E.2d 456, 460 (N.C. Ct. App. 2005) (“A review of the
summons demonstrates that plaintiffs failed to designate any person authorized by Rule 4(j)(6) to
be served on behalf of the corporate defendant in violation of the clear requirements of the rule.
Accordingly, the summons was defective on its face.”).
Similarly, without directing that service be made on a specific person, Plaintiff’s purported
service on “Wells Fargo Bank” fails to comply with the service requirements of Rule 4(j) of the
Federal Rules of Civil Procedure. Moreover, although Rule 4(j) also permits service “in the
manner prescribed by [North Carolina] law for serving a summons or other like process upon any
such defendant,” Plaintiff did not comply with the applicable North Carolina law for the same
reasons. See N.C. R. Civ. P. 4(j)(6).
In light of the insufficient process and insufficient service of process, this Court never
obtained personal jurisdiction over Defendant. See, Mabee v. Onslow Cnty. Sheriff's Dep't, 620
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S.E.2d 307, 308 (N.C. Ct. App. 2005) (affirming dismissal of complaint because “This Court has
unequivocally stated that when a statute prescribes the manner for proper notification, the
summons must be issued and served in that manner. The requirements regarding adequate service
of process must be construed strictly and the prescribed procedure must be followed strictly such
that if the necessary procedures are not adhered to there is no valid service. Finally, although
defective service may be sufficient to give the party actual notification of the proceedings, such
actual notice does not give the court jurisdiction over the party. (quotations and citations omitted)),
disc. rev. denied, 629 S.E.2d 854 (N.C. 2006).
For the reasons above, the Court grants the motion to dismiss the complaint pursuant to
Rule 12(b)(2), 12(b)(4), and 12(b)(5) of the Federal Rules of Civil Procedure. See Faircloth v.
Sampson Cty. Sch., No. 7:10-CV-29-D, 2010 WL 5173601, at *1–2 (E.D.N.C. Dec. 10, 2010)
(dismissing complaint pursuant to Fed. R. Civ. P. 12(b)(2), 12(b)(4), and 12(b)(5)).
CONCLUSION
This court is mindful of the requirement that pro se filings “however unskillfully pleaded,
must be liberally construed.” Noble v. Barnett, 24 F.3d 582, 587 n. 6 (4th Cir. 1994). Nonetheless,
Plaintiff has offered the court no explanation for the deficiencies raised by Defendant; nor has
Plaintiff requested additional time to cure the defects noted herein.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (Doc. No. 3) is
GRANTED, and this matter shall be dismissed without prejudice.
IT IS SO ORDERED.
Date Signed: September 7, 2017

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