United States District Court, W.D. North Carolina, Charlotte Division
Cogbum, Jr. United States District Judge.
MATTER comes before the Court on Intervenor Maxim
Healthcare Services, Inc.'s Motion to Dismiss and Motion
to Quash Service as to Defendants Vanscoten and Patch, (Doc.
se Plaintiff filed this civil rights suit pursuant to 42
U.S.C § 1983. The Complaint passed initial review on
claims against several individuals including Defendants Randy
Vanscoten and Susan Patch. (Doc. Nos. 1, 9). The U.S. Marshal
was unable to serve Defendants Patch and Vanscoten despite
repeated efforts and the Court ordered Plaintiff to submit
new summons forms after service failed. See (Doc.
Nos. 15, 17, 31, 32, 33, 36, 37). On January 29, 2019, new
summonses were returned executed for Defendants Patch and
Vanscoten. (Doc. Nos. 38, 39). Maxim, the former employer of
Defendants Patch and Vanscoten, filed a Motion to Intervene
for Limited Purposes to protect its interests and on behalf
of those Defendants, which was granted. (Doc. Nos. 40, 42).
has now filed the instant Motion to Dismiss and Motion to
Quash Service, arguing that this action should be dismissed
as to Defendants Patch and Vanscoten without prejudice
pursuant to Rules 4(m), 12(b)(2), and 12(b)(5) of the Federal
Rules of Civil Procedure. The Court entered an Order pursuant
to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), notifying Plaintiff of the
importance of responding to the Motion and cautioning him
that the failure to respond would likely result in Maxim
being granted the relief it seeks. (Doc. No. 47). Plaintiff
did not file a Response and the time for doing so has
motion pursuant to Rule 12(b)(5) of the Federal Rules of
Civil Procedure is the appropriate means of challenging the
sufficiency of service of process. The plaintiff bears the
burden of establishing that the service of process has been
performed in accordance with the requirements of Rule 4 of
the Federal Rules of Civil Procedure.
4(e), which governs the service of process upon individuals
located in the United States, provides that service may be
accomplished by either (1) delivering a copy of the summons
and complaint to the defendant personally or to a person of
suitable age and discretion then residing at the
defendant's home or usual place of abode or (2)
delivering a copy of the summons and complaint to an agent
authorized by appointment or by law to receive service of
process. Fed.R.Civ.P. 4(e)(2)(A)-(C). Rule 4(e) also provides
that service of process may be accomplished pursuant to the
law of the state in which the district court sits.
Fed.R.Civ.P. 4(e)(1). North Carolina's requirements for
service of process are virtually identical for all practical
purposes with the requirements of Rule 4. See N.C.
St. R. Civ. P. 4(j)(1).
4(m) of the Federal Rules of Civil Procedure requires a
plaintiff to serve a summons and complaint on each defendant
within 90 days after the complaint is filed. Fed.R.Civ.P.
4(m). The service period in Rule 4(m) is tolled while the
district court considers an in forma pauperis
complaint. Robinson v. Clipse, 602 F.3d 605, 608
(4th Cir. 2010). When a plaintiff is proceeding
in forma pauperis, the district court must order the
U.S. Marshals Service to effect service. Fed.R.Civ.P.
4(c)(3). The real purpose of service of process is to give
notice to the defendant, however, “actual notice”
is not the controlling standard. Mining Energy, Inc. v.
Dir., Office of Workers' Comp. Programs, 391 F.3d
571, 576 (4th Cir. 2004); see Karlsson v.
Rabinowitz, 318 F.2d 666, 669 (4th Cir.
4(m) requires an extension of the service period when the
plaintiff can show “good cause” for the failure
to serve. Fed.R.Civ.P. 4(m); see also Fed.R.Civ.P.
6(b)(1)(B) (when an act must be done within a specified time,
a court may, for good cause, extend that time on motion made
after the time has expired if the party failed to act because
of excusable neglect). The question of what constitutes
“good cause” is determined on a case-by-case
basis within the discretion of the district courts based on
factors including whether: “1) the delay in service was
outside the plaintiff's control, 2) the defendant was
evasive, 3) the plaintiff acted diligently or made reasonable
efforts, 4) the plaintiff is pro se or in forma
pauperis, 5) the defendant will be prejudiced, or 6) the
plaintiff asked for an extension of time under Rule
6(b)(1)(A). Scott v. Md. State Dep't of Labor,
673 Fed.Appx. 299 (4th Cir. 2016). If a plaintiff
fails to effect service within the time required, the
district court must dismiss the action “or order that
service be made within a specified time.” Fed.R.Civ.P.
Complaint in the instant case was signed on February 28, 2018
and docketed on March 6, 2018. (Doc. No. 1). Maxim argues
that Defendants Patch and Vanscoten have not been served
because the purported service involves an unsigned signature
confirmation card was addressed and delivered to the North
Carolina Division of Prisons in Raleigh. The North Carolina
Department of Public Safety has represented that it did not
and does not employ Defendants Vanscoten and Patch and, even
if that was their workplace, the record is insufficient to
establish service of process. See Doc. Nos. 15, 33).
Maxim further argues that this suit should be dismissed, or
service should be quashed, because more than 90 days have
elapsed since the Complaint was filed, including tolling,
Defendants Patch and Vanscoten and all reasonable efforts to
exhaust these Defendants have been exhausted, and there is no
evidence that those Defendants have actual notice of this
Court agrees that service has not been effectuated on these
Defendants and that dismissal is warranted. The record
reveals that the returned summonses are insufficient to
establish service of process on Defendants Patch and
Vanscoten in accordance with Rule 4. Further, more than 90
days have expired since the Complaint was filed, including
tolling, and Defendants Patch and Vanscoten have not been
served. The Court issued a Roseboro Order which
provided Plaintiff the opportunity to respond to Maxim's
Motion and cautioned him that the failure to respond may
result in the relief that Maxim seeks. However, Plaintiff has
failed to respond and thus has not disputed Maxim's
assertion that service was sufficient and has not asserted
that good cause exists to extend the time for service under
Motion to Dismiss this action as to Defendants Patch and
Vanscoten will therefore be granted in ...