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Diede v. UNC Healthcare

United States District Court, E.D. North Carolina, Western Division

July 17, 2018

ANNMARIE DIEDE, Plaintiff,
v.
UNC HEALTHCARE, et al., Defendants.

          ORDER

          W. EARL BRITT SENIOR U.S. DISTRICT JUDGE

         This matter is before the court on the motion to dismiss filed by defendant Rajai Hussari (“Hussari”).[1] (DE # 42.) Also before the court is the second motion to dismiss filed by defendant The University of North Carolina Health Care System (“UNCHCS”). (DE # 53.) The issues raised have been fully briefed and are now ripe for disposition.

         I. FACTS

         Plaintiff initiated this action by filing a pro se complaint and a motion for leave to proceed in forma pauperis on 2 September 2016. (DE # 1.) Plaintiff's complaint seeks relief for alleged violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., by supervisors and employees of UNCHCS while plaintiff was employed by UNCHCS. (Compl., DE # 4, at 2.) The complaint also alleges that Hussari subjected plaintiff to a number of intentional torts, including assault and battery. (Id. at 4-5.) On 20 January 2017, Magistrate Judge Robert T. Numbers, II granted plaintiff's motion for leave to proceed in forma pauperis and ordered that plaintiff's complaint be filed. (DE # 3.) In the same order, Judge Numbers provided a memorandum and recommendation on frivolity review pursuant to 28 U.S.C. § 1915(e)(2), in which he recommended dismissal of some of plaintiff's claims. (Id.) On 24 February 2017, the court adopted, in its entirety, the reasoning in Judge Number's memorandum and recommendation and dismissed some of plaintiff's claims. (DE # 7.)

         On 26 April 2017, UNCHCS filed its first motion to dismiss, raising arguments for dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6). (DE # 12.) On 24 January 2018, the court entered an order granting, in part, and denying, in part, UNCHCS's motion to dismiss. (DE # 38.) Accordingly, the only claims remaining before the court are plaintiff's Title VII claims for hostile work environment and retaliation against both UNCHCS and Hussari, and plaintiff's claim of assault against Hussari.

         II. ANALYSIS

         Hussari now moves to dismiss plaintiff's claims against him for insufficient process pursuant to Federal Rule of Civil Procedure 12(b)(4), and for lack of personal jurisdiction based on insufficient service of process pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5). (DE # 42.) UNCHCS also filed a motion to dismiss, raising the same arguments for dismissal. (DE # 53.)

         A. Standards of Review

         “Failure to properly serve a defendant prevents a court from obtaining personal jurisdiction over the defendant and entitles the defendant to dismissal under Rule 12(b)(2).” Fordham v. Doe, No. 4:11-CV-32-D, 2011 WL 5024352, at *3 (E.D. N.C. Oct. 20, 2011) (citation omitted). When a defendant challenges the court's jurisdiction under Rule 12(b)(2), “the plaintiff bears the burden [of] making a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge.” Consulting Eng's Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009). Similarly, when a defendant seeks dismissal for insufficient process or insufficient service of process under Rules 12(b)(4) and 12(b)(5), the plaintiff bears the burden of establishing that proper service of process was performed and that the process itself was proper. Brissett v. Freemont Inv. & Loan Corp., No. 4:08-CV-77-F, 2010 WL 686547, at *2 (E.D. N.C. Feb. 24, 2010) (citing Elkins v. Broome, 213 F.R.D. 273, 275 (M.D. N.C. 2003)). “In determining whether the plaintiff has satisfied his burden, the technical requirements of service should be construed liberally as long as the defendant had actual notice of the pending suit.” Elkins, 213 F.R.D. at 275. “When there is actual notice, every technical violation of the rule or failure of strict compliance may not invalidate the service of process. But the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored.” Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984).

         B. Hussari's Motion to Dismiss

         In his motion to dismiss, Hussari asserts that plaintiff's claims against him should be dismissed because he has not been properly served, and therefore, the court lacks personal jurisdiction over him. (Def.'s Supp. Mem., DE # 43, at 11.) Hussari specifically contends that plaintiff has failed to effect service because plaintiff initially provided the U.S. Marshals Service with the incorrect address to serve him, and there is no evidence that he ever received a copy of the complaint. (Id. at 7-8.) He further argues that, despite having notice and the opportunity to correct the erroneous address, plaintiff did not make a reasonable effort to serve him before the time within which to do so had expired. (Id. at 5.)

         Federal Rule of Civil Procedure 4 prescribes the methods by which an individual may be served in a civil action. Pursuant to Rule 4, service may be accomplished “by delivering a summons and complaint to the individual personally, by leaving a summons and complaint at the individual's house or other place of abode with someone of suitable age and discretion who resides there, by serving the individual's authorized agent, or by serving the individual in compliance with the law of the state where the federal court is located.” Pitts v. O'Geary, 914 F.Supp.2d 729, 733-34 (E.D. N.C. 2012) (citing Fed.R.Civ.P. 4(e)). The North Carolina Rules of Civil Procedure permit service “[b]y mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.” N.C. Gen. Stat. § 1 A-1, Rule 4(j)(1)(c). Service of process can be effected by mailing the summons and complaint to a defendant's place of employment. Moore v. Cox, 341 F.Supp.2d 570, 573 (M.D. N.C. 2004). However “[s]ervice of process cannot be effected upon [d]efendant by serving at his place of employment individuals who are not authorized to accept service of process.” Elkins, 213 F.R.D. at 276 (citations omitted).

         Once the sufficiency of process is challenged, the plaintiff bears the burden of establishing that the service of process complies with the requirements set forth in Rule 4. Elkins, 213 F.R.D. at 275. In North Carolina, a return of service showing service on its face raises a rebuttable presumption of valid service. See Granville Med. Ctr. v. Tipton, 586 S.E.2d 791, 796 ( N.C. Ct. App. 2003). A defendant may rebut this presumption of valid service with the “affidavits of more than one person showing unequivocally that proper service was not made upon the person of the defendant.” Grimsley v. Nelson, 467 S.E.2d 92, 94 ( N.C. 1996).

         Following an initial review pursuant to 28 U.S.C. § 1915, this court ordered the Clerk to issue the summons provided by plaintiff. (DE # 7, at 2.) On 24 February 2017, the summons was issued by the Clerk and delivered to the U.S. Marshals Service for service to Hussari at 101 Manning Drive, Chapel Hill, NC 27514. (DE # 8, at 3.) The Marshals Service filed a return of service, indicating service “To Agent” at the address plaintiff provided on 6 March 2017. (DE # 15.) A subsequent filing of the same return of service on 24 October 2017 shows that the envelope containing the summons and complaint was “return[ed] to sender” as undeliverable on 23 October 2017. (DE # 19, at 3.) Thus, even though the summons and ...


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