United States District Court, E.D. North Carolina, Western Division
MOLLY YATES, individually, next-of-kin, personal representative and widow of BRADLEY YATES, Plaintiff,
TYREE DAVIS, current chief of the Enfield N.C. Police Department, in his individual and official capacity; WILLIE TILLERY, former chief of the Enfield, N.C. Police Department, in his individual and official capacity; WES TRIPP, sheriff of Halifax County, in his individual and official capacity; WILLIE HAMMIEL, officer of the Enfield Police Department in his official and individual capacity; JASON KETTER, Deputy Sheriff of Halifax County, in his official and individual capacity; and SERGEANT CHRISTOPHER BODEN, Deputy Sheriff of Halifax County, in his official and individual capacity Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on motion to dismiss filed by
defendants Christopher Boden (“Boden”), Jason
Ketter (“Ketter”), and Wes Tripp
(“Tripp”) (collectively “sheriff
defendants”). (DE 9). The motion has been fully
briefed, and, in this posture, the issues presented are ripe
for ruling. For reasons noted, the motion is granted.
initiated this action November 6, 2017, in the General Court
of Justice, Superior Court Division, for Halifax County,
North Carolina, asserting federal claims under 42 U.S.C.
§ 1983 (“Section 1983”), claims under the
North Carolina Constitution, and North Carolina common law
claims sounding in negligence and wrongful death. The case
arises from the death of Bradley Yates (“Yates”),
which allegedly occurred as the Halifax County Sheriff's
Department investigated a domestic disturbance at the Yates
residence. According to the complaint, deputies handcuffed
Yates and required him to lay face down on the floor, which
caused or exacerbated breathing problems that led to
clerk of Halifax County Superior Court issued summonses for
defendants Boden, Ketter, and Tripp November 9, 2017. (DE 9-1
at 12, 16, & 20). Plaintiff hired a private investigator
or process server, who delivered a copy of the complaint and
summons to Tripp by hand. (DE 11 ¶ 3; DE 25 at 2).
Defendant Boden was not served personally, but found a copy
of the summons and complain in his work mailbox at the
Halifax County Sheriff's Office. (DE 13 ¶ 3; DE 25
at 2). Defendant Ketter first received notice of this action
via phone call from defendant Tripp, and, in early December,
Ketter was provided a copy of the complaint by defense
counsel during a meeting. (DE 12 ¶ 3). Ketter was not
otherwise served with any process.
sheriff defendants seek dismissal on grounds that they have
not been served with process and that this court, therefore,
lacks personal jurisdiction over them. In support of the
motion, the sheriff defendants rely upon their affidavits and
exemplified file from Halifax County Superior Court
pertaining to this case.
Standards of Review
a district court considers a question of personal
jurisdiction based on the contents of a complaint and
supporting affidavits, the plaintiff has the burden of making
a prima facie showing in support of its assertion of
jurisdiction.” Universal Leather, LLC v. Koro AR,
S.A., 773 F.3d 553, 558 (4th Cir. 2014). Where defendant
disputes jurisdiction through affidavits or otherwise,
plaintiff may not rest on mere conclusory allegations.
See McLaughlin v. McPhail, 707 F.2d 800, 806 (4th
Cir. 1983). Rather, plaintiff must come forward with
affidavits or other evidence to counter defendants'
arguments. See id. (affirming dismissal under Rule
12(b)(2) where, “[a]gainst the defendants'
affidavits, ” a plaintiff “offered nothing beyond
his bare allegations that the defendants had . . .
significant contacts” with the forum state).
“Absent 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).
motion to dismiss under Federal Rule of Civil Procedure Rule
12(b)(4) challenges the sufficiency of process, while Rule
12(b)(5) motions challenge the sufficiency of service of
process. “When the process gives the defendant actual
notice of the pendency of the action, the rules . . . are
entitled to a liberal construction” and “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). Nevertheless, “the
rules are to be followed, and plain requirements for the
means of effecting service of process may not be
ignored.” Id. The plaintiff bears the burden
of establishing that process has been properly served.
Dalenko v. Stephens, 917 F.Supp.2d 535, 542 (E.D.
N.C. 2013); see also Mylan Labs., Inc. v. Akzo,
N.V., 2 F.3d 56, 60 (4th Cir. 1993) (holding the
plaintiff must prove service of process if challenged).
service of process (or waiver of service under Rule 4(d)) is
necessary for the court to exercise personal jurisdiction
over a defendant. See Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 350 (1999). A party may
effect service under Federal Rule of Civil Procedure 4(e)(1)
by “following state law for serving summons in an
action brought in courts of general jurisdiction in the state
where the district court is located or where service is
made[.]” North Carolina law requires that where a party
to be served is a sheriff, service of summons must be
effected by the county coroner, or, if the county has no
coroner, by the clerk of court or the clerk's designee.
N.C. Gen. Stat. § 162-16.
the sheriff defendants were not served in the manner required
by N.C. Gen. Stat. § 162-16, the court lacks personal
jurisdiction to hear claims against them. See Murphy
Bros., 526 U.S. at 350. Plaintiff advances no argument
to the contrary, but requests that any dismissal be without
prejudice. The sheriff defendants take no position regarding
whether dismissal should be with or without prejudice.
Accordingly, while claims ...