United States District Court, E.D. North Carolina, Western Division
MEMORANDUM & RECOMMENDATION
KIMBERIA A. SWANK UNITED STATES MAGISTRATE JUDGE
own motion, the court has decided to reconsider the
Memorandum and Recommendation filed October 16, 2018, in
which it was recommended that this action be dismissed
pursuant to Rule 4(m) for failure to file proof that service
has been made upon Defendant or, alternatively, for failure
to prosecute or to comply with this court's prior orders.
For the reasons set forth below, the court reaffirms its
prior recommendation that the action be dismissed.
filed this action on December 27, 2017, but failed to timely
file proof of service as required by Rule 4(m) of the Federal
Rules of Civil Procedure. The court twice extended Plaintiffs
deadline for service, in both instances after the clerk
notified Plaintiff that his time to effect service had
expired. The last extension order, entered August 27, 2018,
determined that Plaintiff had failed to demonstrate good
cause "why, despite the passage of eight months from the
filing of this action, Plaintiff has been unable to serve his
prior employer." (Aug. 27, 2018, Order [DE #15].)
Nevertheless, the court, in its discretion, granted one final
extension of time, through September 28, 2018, for Plaintiff
to serve Defendant. Plaintiff was warned that failure to
effect service by September 28, 2018, may result in dismissal
of his claims pursuant to Rule 4(m) or for failure to
prosecute or to comply with this court's orders.
October 16, 2018, a Memorandum and Recommendation was
submitted in which it was noted that Plaintiff had not filed
proof of service upon Defendant and his deadline (twice
extended) had expired. (Oct. 16, 2018, Mem. &
Recommendation [DE #16].) Accordingly, the undersigned
recommended that the action be dismissed pursuant to Rule
4(m) or for failure to prosecute or to comply with the
court's prior orders directing Plaintiff to file proof
that Defendant had been served. (Id. at 1.)
Plaintiff was advised that he had until November 2, 2018, to
file written objections to the Memorandum and Recommendation.
did not file any written objections or otherwise provide any
explanation for why the court should not dismiss the action.
Instead, on October 23, 2018, Plaintiff filed a return of
service signed by Deputy T. Clodfelter of the Wake County
Sheriffs Office indicating he had served a summons addressed
to United Parcel Service, Inc., upon "Matt Bristow, who
is designated by law to accept service of process on behalf
of United Parcel Service, Inc. on 9/27/18." (Return of
Service [DE #17] at 2.)
December 21, 2018, Defendant United Parcel Service, Inc.
(UPS) made a limited appearance, through counsel, for the
purpose of disputing the sufficiency of service upon UPS.
(Notice Ltd. Appearance [DE #18].) In a declaration made
under penalty of perjury, Matthew Bristow states that he is
employed by UPS as a Human Resources Supervisor at UPS'
human resources building located at 4101 Atlantic Avenue,
Raleigh, North Carolina. (Decl. Matthew Bristow [DE #19-1]
¶2.) Mr. Bristow avers that he is not an officer or
director of UPS, does not manage or supervise any operations
of UPS, is not an agent registered to accept service of
process on behalf of UPS, and has never been authorized by
UPS to accept court papers on its behalf (Bristow Decl.
¶¶3, 6.) He recalls that an individual identifying
himself as a Wake County Deputy Sheriff came to the UPS human
resources building in late September 2018 and that he was
called to the front desk to speak with the deputy. (Bristow
Decl. ¶ 5.) The deputy gave Mr. Bristow some papers and
asked him for his name and business card, which Mr. Bristow
provided. (Id.) Mr. Bristow never told the deputy he
was authorized to accept service of any papers on behalf of
UPS. (Id.) Mr. Bristow declares that a true and
correct copy of the papers he received from the deputy are
attached to his declaration. (Id.) Attached to Mr.
Bristow's declaration are copies of a summons, notice of
self-representation, financial disclosure, and what appears
to be a one-page typewritten and signed statement of alleged
facts underlying Plaintiffs claims which, except for the
signature, appears identical to page five of Plaintiff s
complaint. (See Compl. [DE #1] at 5.) Notably, the
papers attached to Mr. Bristow's declaration do not
include pages one through four, six or seven of Plaintiffs
plaintiff bears the burden of showing that the service of
process, and the process itself, complies with the
requirements set forth in Rule 4 of the Federal Rules of
Civil Procedure." Brissett v. Freemont Inv. &
Loan Corp., No. 4:08-CV-77-F, 2010 WL 3003361, at *2
(E.D. N.C. July 29, 2010). "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.
requires that a summons and copy of the complaint be served
upon each named defendant. Fed.R.Civ.P. 4(c)(1). Rule 4(h)
governs service upon a corporate defendant. Under Rule 4(h),
proper service may be made by following state law for service
"in an action brought in courts of general jurisdiction
in the state where the district court is located or where
service is made" or upon "an officer, a managing or
general agent, or any other agent authorized by appointment
or by law to receive service of process." Fed.R.Civ.P.
4(e), (h). Under applicable North Carolina law, service may
be made upon a corporation by "registered or certified
mail, return receipt requested, addressed to the officer,
director, or agent" authorized by appointment or by law
to be served or to accept service of process on its behalf,
N.C. R. Civ. P. 4(])(6)(c), or by delivery by "a
designated delivery service authorized pursuant to 26 U.S.C.
§ 7502(f)(2)" to an officer, director, or
authorized agent, N.C. R. Civ. P. 4(j)(6)(d).
attempt to serve UPS, as evidenced by the return of service
filed October 23, 2018, is deficient in a number of respects.
First, the summons is addressed to "United Parcel
Service, Inc." and does not name an officer, director,
or agent of UPS. Second, the evidence submitted by UPS
demonstrates that the individual upon whom delivery was made
(Matthew Bristow) is not an officer, director, or managing or
general agent of UPS and has not been authorized by
appointment or by law to accept service of process on behalf
of UPS. Third, a complete copy of Plaintiff s
complaint was not included in the materials provided to
[of process] rules are structed 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." Shaver v. Cooleemee Vol.
Fire Dep't No. 1:07-CV-175, 2008 WL 942560, at *2
(M.D. N.C. Apr. 7, 2008). While pro se litigants are allowed
more latitude than represented parties with respect to the
maintenance of their suits, service of process rules apply
with equal force to represented and unrepresented litigants,
and courts should not overlook such procedural deficiencies,
even if a defendant has actual notice of the suit. See
case, Plaintiff was given numerous opportunities to effect
service upon UPS. Twice the court extended Plaintiffs service
deadline. In each instance, Plaintiff had allowed the time
for service to expire and requested an extension only after
the clerk informed him that his time for service had expired.
The second extension was granted in the court's
discretion in light of Plaintiffs pro se status, the court
having determined that Plaintiff good cause had not been
shown for an extension. This action was filed over a year
ago, and Plaintiff has yet to demonstrate that proper service
has been made upon UPS. On October 16, 2018, the undersigned
recommended that the action be dismissed due to Plaintiffs
failure to comply with Rule 4(m) and this court's orders,
as well as for failure to prosecute. Plaintiff has not
objected to the recommended dismissal, nor has he submitted
any explanation for his failure to follow the rules governing
service or the court's prior orders.
reconsideration of the Memorandum and Recommendation filed
October 16, 2018, in light of evidence subsequently presented
in this case and for the foregoing reasons, it is RECOMMENDED
that this action be dismissed pursuant to Rule 4(m) or for