United States District Court, Middle District of North Carolina
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
In this employment discrimination case, Defendant John Umstead Hospital (“JUH”), a former institution of the State of North Carolina, moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(5). (Doc. 35.) Plaintiff Waldo Fenner, proceeding pro se, opposes the motion. (Doc. 39.) For the reasons stated below, JUH’s motion will be granted and the case will be dismissed.
Fenner filed his complaint on December 21, 2009, alleging he was terminated and retaliated against by JUH and Defendant Susan Regier, Unit Director of Nursing at JUH, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). (Doc. 2.) On March 18, 2013, this court, adopting the Recommendation of the United States Magistrate Judge, dismissed the Title VII claim against Regier on the ground that she was not an “employer” under Title VII. (Docs. 14, 19.) In addition, the court found that Fenner had failed to properly serve JUH with the summons and complaint and allowed him until May 1, 2013, to perfect service of process on JUH. (Doc. 19 at 1–2.) On June 14, 2013, JUH, claiming that Fenner failed to properly effect service, filed the instant motion to dismiss along with an answer. (Docs. 35, 37.)
JUH claims that service was defective because its registered agent for service of process, Emery E. Milliken, did not receive a copy of the summons along with the complaint, as required by Federal Rule of Civil Procedure 4. Its position is supported by the affidavit of Rose Thompson, the Administrative Secretary for Legal Affairs at the North Carolina Department of Health and Human Services (the “Department”), who was responsible for opening Milliken’s mail. (Doc. 35–1 ¶¶ 3–6.) Thompson states that she received a copy of the complaint in this case via certified mail on April 8, 2013, but that the summons was not included in the envelope. (Id. ¶ 8.) She affixed an intake stamp on the complaint and then logged and filed it according to Department procedures. (Id. ¶ 9.) Another employee of the Department, Susan Broadwell, testifies in her affidavit that as part of her official duties she examined the log, which contained an entry indicating that the complaint had been served on Milliken but no entry concerning the summons. (Doc. 35–2 ¶¶ 7–8.)
JUH also argues that attempted service on J. Michael Hennike, Chief Executive Officer of Central Regional Hospital (“CRH”), was ineffective for two reasons. First, Hennike is not a proper party to be served; he is an officer of CRH, a separate corporate entity from JUH. Second, JUH relies on the affidavit of Kelly Breedlove, Executive Assistant to Hennike, which states that on April 8, 2013, she opened an envelope addressed to Hennike that contained only a copy of the complaint (and not a summons) in this case. (Doc. 35-3 ¶¶ 6–7.) Consequently, JUH argues that service of process on it was defective.
Fenner claims that he properly served the summons on JUH by serving Milliken and Hennike as agents. In support, he relies on proofs of service that appear on page two of each summons and state that Fenner served the summonses on each person on April 8, 2013. (Doc. 28.) The proofs of service are each dated April 16, 2013, and signed by Fenner. (Id.) Attached to the proofs of service are two United States Postal Service certified mail– return receipts: the Milliken receipt is stamped received by the “mail service center” on April 8, 2013; the Hennike receipt is signed as received by Larry D. Williams on April 8, 2013. (Id.)
Finally, Fenner argues that JUH’s motion to dismiss is untimely because it was filed over a month after the time to perfect service of process had expired and over two months after he alleges proper service occurred. (Doc. 39 at 1.)
Where service is challenged, the plaintiff bears the burden of proving that service was proper. Elkins v. Broome, 213 F.R.D. 273, 275 (M.D. N.C. 2003). Fenner claims that he properly served JUH by two different methods: service on Hennike, and service on Milliken.
A. Service on Hennike
JUH argues that Hennike is not a proper person to accept service of process on behalf of JUH. JUH has provided admissible evidence that Hennike is the Chief Executive Officer of a separate entity, CRH, in Butner, North Carolina. (Doc. 35-3 ¶ 3.) There is no evidence on the record that Hennike was an officer of JUH. Hennike was also not listed as JUH’s registered agent. (Doc. 35-1 ¶ 10.)
JUH was a hospital formerly under the control of the North Carolina Department of Health and Human Services. (Doc. 35–1 ¶ 10.) Under North Carolina law, the Department of Health and Human Services is considered an “agency of the State.” N.C. Gen. Stat. § 1A-1, Rule 4(j)(4)(d) (defining “agency of the State” to include “every . . . department . . . of the State of North Carolina.”). Federal Rule of Civil Procedure 4(j)(2) provides two ways to serve a state or local government or “any other state-created governmental organization”: a plaintiff may either “deliver a copy of the summons and of the complaint to its chief executive officer, ” or “serv[e] 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.P. 4(j)(2)(A)– (B) (emphasis added). Under North Carolina Rule of Civil Procedure 4(j)(4)(a), service on a state agency is made by serving its process agent. Service may be made by certified mail, return receipt requested. N.C. Gen. Stat. § 1A-1, Rule 4(j)(4)(a). Under the federal rules and North Carolina rules, both the summons and complaint must be served. Fed.R.Civ.P. 4(c)(1); N.C. Gen. Stat. § 1A-1, Rule 4(j)(4)(a).
Based on the above, Fenner has not established that Hennike was authorized to accept service on behalf of JUH. He was not JUH’s registered agent, nor is there any evidence that he was an officer of JUH. Therefore, ...