United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
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.
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).
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).
were returned executed for Defendants Beckton, Cauthran, and
Nolan in January 2019. (Doc. Nos. 33-35).
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.
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.
Court issued a Roseboro 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
MOTION TO DISMISS AND QUASH
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).
4(e) of the Federal Rules of Civil Procedure provides as
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 ...