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Swanson v. Gaston County Sheriff's Department

United States District Court, W.D. North Carolina, Charlotte Division

May 13, 2019

BENJAMIN GODWIN SWANSON, Plaintiff,
v.
GASTON COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court on the second Motion to Dismiss or Quash filed by Defendants Cauthran, Becton, and Nolan pursuant to Rules 12(b)(2), 12(b)(4), and 12(b)(5) of the Federal Rules of Civil Procedure, (Doc. No. 36), alleging insufficient service of process of the summons and Amended Complaint. Also pending is Plaintiff's Second Amended Complaint, (Doc. No. 41), in which he seeks to add two new Defendants, Deputy Rogers and Officer Webber.

         I. BACKGROUND

         Plaintiff is a pro se inmate of the Mecklenburg County Jail who filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. The Amended Complaint passed initial review on Plaintiff's allegations of retaliation against Defendants Cauthran, Becton, and Nolan. (Doc. No. 11). The Clerk of Court electronically issued summons forms to the U.S. Marshal for service on Defendants on September 7, 2018. (Doc. Nos. 18). Summons forms were returned executed and were filed with the Court on September 18, 2018. (Doc. Nos. 21-23). The Proof of Service forms attached to the Summons forms indicate that each of the Defendants was served when the U.S. Marshal delivered the Summonses to Sergeant Lomick of the Gaston County Sheriff's Office on September 12, 2018. (Doc. No. 21 at 3); (Doc. No. 22 at 3); (Doc. No. 23 at 3).

         Defendants filed their first Motion to Dismiss or Quash on October 1, 2018, (Doc. No. 24), arguing that the summonses that were returned as to Defendants Beckton, Cauthran, and Nolan, (Doc. Nos. 21, 22, 23), should be quashed because the Marshals' Returns of Service indicate on their face that no personal service was made, and none of them have been personally served. The Motion to Dismiss or Quash was granted in part and denied in part, and the U.S. Marshal was instructed to use reasonable efforts to effectuate service on Defendants Beckton, Cauthran, and Nolan. (Doc. No. 31).

         Summonses were returned executed for Defendants Beckton, Cauthran, and Nolan in January 2019. (Doc. Nos. 33-35).

         Plaintiff filed a “Supplemental Complaint, ” (Doc. No. 41), that is construed as a Second Amended Complaintdated January 27, 2019 that was docketed on February 7, 2019.

         Defendants Beckton, Cauthran, and Nolan have now filed a second Motion to Dismiss or quash on February 11, 2019. (Doc. No. 37). They argue that no service has been made on any individual Defendant, that the summonses should be quash, and that the Amended Complaint should be dismissed for failure to obtain timely service. The first time service was attempted, all of the Defendants were served at the Sheriff's Office but there was no personal service. The second time service was attempted, the returns suggest that the envelopes were delivered to someone other than any Defendant. Defendants Beckton, Cauthran, and Nolan have filed affidavits stating that they have not received the summons or Amended Complaint and that they have not authorized anyone at the Gaston County Sheriff's Office to accept service their behalf or receive their mail. (Doc. Nos. 36-1, 36-2, 36-3). Alternatively, Defendants Beckton, Cauthran, and Nolan move the Court for a 21-day extension of time to file Answers to the Amended Complaint.

         The Court issued a Roseboro[1] Order to Plaintiff on February 13, 2019, advising him of the importance of responding to Defendants' Motion. (Doc. No. 38). Plaintiff has filed a Response, (Doc. No. 40), arguing that he is pro se and indigent, and relied upon the U.S. Marshals Service to properly and timely serve Defendants in this matter.

         II. MOTION TO DISMISS AND QUASH

         “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). A motion may be brought to dismiss for lack of personal jurisdiction, insufficient process, and insufficient service of process may be brought pursuant to Rules 12(b)(2), 12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure. Once the sufficiency of service is challenged, the plaintiff bears the burden of establishing that service of process has been accomplished in a manner that complies with Rule 4. See, e.g., Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F.Supp. 519, 526 (M.D. N.C. 1996).

         Rule 4(e) of the Federal Rules of Civil Procedure provides as follows:

Unless federal law provides otherwise, an individual - other than a minor, an incompetent person, or a person whose waiver has been filed - may be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in the courts of general jurisdiction in the state where the district is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of ...

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