in the Court of Appeals 15 January 2019.
by Plaintiff from order entered 22 March 2018 by Judge A.
Graham Shirley in Durham County Superior Court No. 17CVS3530.
Office of Saprina Brown Taylor, by Saprina Brown Taylor, for
Office of Robert E. Ruegger, by Robert E. Ruegger, for
plaintiff's attempts to find and serve a defendant do not
meet the due diligence standard described by Rule 4(j1) of
the North Carolina Rules of Civil Procedure, service of
process by publication is improper and dismissal is
Denise Angelista Henry ("Plaintiff") brought suit
against Defendant Elena Nicole Morgan ("Defendant")
for negligence. Plaintiff appeals from the trial court's
order granting Defendant's motion to dismiss for lack of
service of process, insufficiency of process, and
insufficiency of service of process. After careful review of
the record and applicable law, we hold that the trial court
did not err in granting Defendant's motion and affirm.
AND PROCEDURAL HISTORY
record and the trial court's undisputed findings of fact
reveal the following:
On 18 July 2014, Plaintiff and Defendant were involved in a
motor vehicle accident. Plaintiff filed a complaint alleging
negligence on 17 July 2017, and a civil summons was issued.
The summons listed Defendant's address as 2931
Springsweet Lane, Apartment 17, Raleigh, North Carolina, and
service was attempted at that address by the Wake County
Sheriff's Office. The summons was returned unserved on 31
August 2017, with a deputy sheriff's note indicating that
after several attempts he was unable to locate Defendant.
times relevant to this case, Defendant has resided at 4021
Bella Park Trail, Apartment 5, Raleigh, North Carolina.
Defendant's driver's license, issued 1 July 2016,
reflects this fact.
August 2017, Plaintiff's attorney participated in the
mediation of an unrelated case with an attorney retained by
Defendant. During this meeting, the attorneys discussed
Plaintiff's difficulty serving Defendant. Plaintiff's
attorney told Defendant's attorney that she would
"keep him posted regarding service," but did not
ask for Defendant's address.
endorsement of the original summons and complaint was issued
and, on 18 September 2017, Plaintiff's attorney sent a
copy to Defendant's attorney and Defendant's
insurance carrier. In these communications, Plaintiff did not
ask for Defendant's address, but instead informed
Defendant's attorney that Defendant would be served by
attorney conducted a Google search and determined that
Defendant may have still resided in Raleigh, North Carolina
at that time. The record reflects no evidence of any
additional attempt by Plaintiff to locate Defendant. Notice
of service of process by publication was published in ...