United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Duke Energy
Carolinas, LLC's (“Defendant's”), Motion
to Quash Service of Process and Dismiss the Plaintiff's
Complaint, (Doc. No. 6); Defendant's Memorandum in
Support, (Doc. No. 7); Rodney Felder's
(“Plaintiff's”) Response in Opposition, (Doc.
No. 9); Defendant's Reply, (Doc. No. 13); and the
Magistrate Judge's Memorandum and Recommendation
(“M&R”), (Doc. No. 15), recommending the
Court grant Defendant's Motion without prejudice.
Plaintiff has filed a timely objection, (Doc. No. 16), to
which Defendant has filed a reply. (Doc. No. 18). The Motion
is now ripe for the Court's consideration.
party has objected to the Magistrate Judge's statement of
the factual and procedural background of this case.
Therefore, the Court adopts the facts as reproduced below.
alleges discrimination based upon race, age and retaliation
by his employer Defendant Duke Energy Carolinas, LLC. On
September 30, 2016, the Equal Employment Opportunity
Commission issued Plaintiff a right to sue letter. See Doc.
1. On December 21, 2016, Plaintiff filed his pro se
Complaint against Defendant. The Summons for Defendant was
issued on December 21, 2016. Plaintiff never sought or
obtained a waiver of service from Defendant. On or about
December 21, 2017, Plaintiff attempted to serve the Summons
and Complaint on Defendant by U.S. Mail to “Duke Energy
filed this Motion pursuant to Rules 12(b)(4) and 12(b)(5) of
the Federal Rules of Civil Procedure to quash service of
process and dismiss the Complaint with prejudice.
STANDARD OF REVIEW
district court may assign dispositive pretrial matters,
including motions to dismiss, to a magistrate judge for
“proposed findings of fact and recommendations.”
28 U.S.C. § 636(b)(1)(A) & (B). The Federal
Magistrate Act provides that a district court “shall
make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made.” Id. § 636(b)(1)(C)
Flush; Fed.R.Civ.P. 72(b)(3). However, “when objections
to strictly legal issues are raised and no factual issues are
challenged, de novo review of the record may be dispensed
with.” Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982). De novo review is also not required
“when a party makes general or conclusory objections
that do not direct the court to a specific error in the
magistrate judge's proposed findings and
recommendations.” Id. “General
objections include those that merely restate or reformulate
arguments a party has made previously to a magistrate judge.
Examining anew arguments already assessed in the M & R
would waste judicial resources; parties must explain
why the M & R is erroneous, rather than simply
rehashing their prior filings.” Wiggins v.
Colvin, No. 1:12-cv-196, 2014 WL 184414, at *1 (W.D.
N.C. Jan. 15, 2014) (citations, alterations and internal
quotation marks omitted).
when no objection is filed, “a district court need not
conduct a de novo review, but instead must ‘only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.'”
Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72,
advisory committee note). The Court construes arguments of a
pro se defendant broadly rather than narrowly.
Orpiano, 687 F.2d at 48.
argues that dismissal is appropriate pursuant to Federal Rule
of Civil Procedure 12(b)(4) for a facially defective summons
and Rule 12(b)(5) for insufficiency of service. “Rule
12(b)(4) concerns the sufficiency of the form of the process,
rather than the manner or method by which it is served. Rule
12(b)(5), on the other hand, challenges the mode of delivery
or the lack of delivery of the summons and complaint.”
Davies v. Jobs & Adverts Online, Gmbh, 94
F.Supp.2d 719, 721 n.5 (E.D. Va. 2000) (citing 5A Wright
& Miller, Fed. Prac. & Proc. § 1353 (2d 1990)).
A plaintiff bears the burden of establishing that service of
process has been perfected in accordance with the
requirements of Rule 4. Scott v. Maryland State Dep't
of Labor, 673 Fed.Appx. 299, 303 (4th Cir. 2016) (citing
Dickerson v. Napalitano, 604 F.3d 732, 752 (2d Cir.
M&R, the Magistrate Judge recommended the Court grant
Defendant's Motion without prejudice. The Magistrate
Judge found that dismissal pursuant to Rule 12(b)(4) was
proper because the summons was not directed to “an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process.” (Doc. No. 15 at 2-3) (citing Fed.R.Civ.P.
4(h)(1)). The Magistrate Judge also found that dismissal
pursuant to Rule 12(b)(5) was proper because service of
process did not comply with the time requirements of Rule
4(m) and no “good cause” was shown for
Plaintiff's failure to meet the time requirements. (Doc.
No. 15 at 3-4). The Court agrees.
service is made upon a corporate defendant, Rule 4(h)(1)
requires that the summons be directed to “an officer, a
managing or general agent, or any other agent authorized by
appointment or by law to receive services of process.”
Here, Plaintiff directed his Summons to Duke Energy
Carolinas, LLC. (Doc. No. 2). Plaintiff did not direct the
summons and complaint to a single corporate officer despite
the public availability of their names and addresses on the
North Carolina Secretary of State's website. Therefore,
Plaintiff's summit is defective on its face and quashed
pursuant to Rule 12(b)(4).
4(m) provides that if a plaintiff does not effectively serve
process within ninety days of filing a complaint, the court
“must dismiss the action without prejudice against that
defendant or order that the service be made within a
specified time.” If, however, “the plaintiff
shows good cause for the failure, the court must extend time
for service for an appropriate period.” Fed.R.Civ.P.
4(m). In determining whether “good cause” exists,
the district court analyzes the following factors: (1)
whether the delay in service was outside the plaintiff's
control; (2) whether the defendant was evasive; (3) whether
the plaintiff acted diligently or made reasonable efforts;
(4) whether the plaintiff is pro se or in forma pauperis; (5)
whether the defendant will be prejudiced; or (6) whether the
plaintiff asked for an extension of time. Scott v. Md.
State Dep't of ...