United States District Court, W.D. North Carolina, Statesville Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on a Motion to Dismiss
filed by Defendants Maria Oxford, Rick Jackson, and Philip
Stover pursuant to Rule 12 of the Federal Rules of Civil
Procedure and Rules 7.1 and 7.2, of the Local Rules of Civil
Procedure, (Doc. No. 46), alleging insufficient service of
process and lack of personal jurisdiction.
is a pro se North Carolina prisoner alleging that he
received deliberately indifferent care for a cancerous ear
tumor while he was incarcerated at the Brown Creek
Correctional Institution. (Doc. No. 24). The Court conducted
initial review pursuant to 28 U.S.C. § 1915(e)(2)(B)
and, on September 21, 2017, allowed the case to proceed
against Defendants Rick Jackson, Maria Oxford,  Phillip Stover,
and Vicki Coffey. (Doc. No. 29). The Court ordered Plaintiff
to fill out and return summons forms for the U.S. Marshal to
effectuate service of process. Plaintiff complied and, on
October 3, 2017, the Clerk of Court electronically issued the
summons forms to the U.S. Marshal for service on Defendants.
(Doc. No. 30). On October 25, 2017, summons forms were
returned unexecuted as to Oxford, Jackson, and Coffey, and
executed as to Stover. (Doc. Nos. 33-36). The Court
instructed the U.S. Marshal to use reasonable efforts to
effectuate service on Defendants Oxford, Jackson, and Coffey
on October 31, 2017, and the summons forms were reissued
conventionally to the U.S. Marshal for service. (Doc. Nos.
37-38). The summons forms were returned executed on
Defendants Oxford, Jackson, and Coffey on November 7, 2017.
(Doc. Nos. 40-42).
Jackson, Oxford, and Stover filed the instant Motion to
Dismiss on December 27, 2017. (Doc. No. 46). They argue that
Plaintiff's claims against them should be dismissed for
lack of jurisdiction, insufficiency of process, and
insufficiency of service; none of them has been personally
served and more than 120 days has expired since Plaintiff
filed the Amended Complaint. Each of these Defendants has
filed an affidavit in support of dismissal. Defendant Maria
Oxford states that she resigned from her employment at
Lanesboro C.I. on March 9, 2015. (Doc. No. 47-1). The
Complaint was delivered to Lanesboro on November 7, 2017, and
appears to have been signed for by Correctional Officer
Coletrane, who was not authorized to accept service on her
behalf. Defendant Oxford did not sign for the summons and
Compliant and, to date, has never been personally served with
a copy of the summons or Complaint. Defendant Rick Jackson
retired from Lanesboro on September 1, 2009. (Doc. No. 47-2).
The summons and complaint were delivered to Lanesboro around
November 2, 2017, and were signed by Correctional Officer
Coletrane, who was not authorized to accept service for him.
Defendant Jackson did not sign for the summons and complaint
and has never been personally served with the summons or
Complaint. Defendant Phillip Stover, M.D. retired on December
31, 2014. (Doc. No. 47-3). Around October 13, 2017, a summons
and Complaint were delivered to his former place of
employment at the North Carolina Medical Board in Raleigh.
Someone at the Medical Board who was not authorized to accept
service for him forwarded the summons and Complaint to him
via Federal Express on October 17, 2017. Defendant Stover has
never been personally served with the summons or complaint.
Court issued a Roseboro Order to Plaintiff on
January 2, 2018, advising him of the importance of responding
to Defendants' motion. (Doc. No. 50). Plaintiff has filed
a Response, (Doc. No. 51), arguing that he is pro se
and indigent, and relied upon the U.S. Marshals Service to
properly and timely serve Defendants in this matter.
Defendants have filed a Reply. (Doc. No.
STANDARD OF REVIEW
waiver or consent, a failure to obtain proper service on the
defendant deprives the court of personal jurisdiction over
the defendant.” Koehler v. Dodwell, 152 F.3d
304, 306 (4th Cir. 1998). A motion may be brought
to dismiss for lack of personal jurisdiction, insufficient
process, and insufficient service of process may be brought
pursuant to Rules 12(b)(2), 12(b) (4) and 12(b)(5) of the
Federal Rules of Civil Procedure. Once the sufficiency of
service is challenged, the plaintiff bears the burden of
establishing that service of process has been accomplished in
a manner that complies with Rule 4. See,
e.g., Plant Genetic Sys., N.V. v. Ciba
Seeds, 933 F.Supp. 519, 526 (M.D. N.C. 1996).
4(e) of the Federal Rules of Civil Procedure provides as
Unless federal law provides otherwise, an individual - other
than a minor, an incompetent person, or a person whose waiver
has been filed - 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 the courts of general
jurisdiction in the state where the district is located or
where service is made; or (2) doing any of the following: (A)
delivering a copy of the summons and of the complaint to the
individual personally; (B) leaving a copy of each at the
individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e).
4(j)(1) of the North Carolina Rules of Civil Procedure
prescribes the manner by which service may be effectuated in
North Carolina, directing that service upon a natural person
shall be as follows:
a. By delivering a copy of the summons and of the complaint
to the natural person or by leaving copies thereof at the
defendant's dwelling house or usual place of abode with
some person of ...