United States District Court, W.D. North Carolina, Charlotte Division
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. (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.
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 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.
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.
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 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).
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
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-cv-175, 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. 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