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Oppenheimer v. Griffin

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

May 22, 2019

DAVID OPPENHEIMER, Plaintiff,
v.
JAMES SEAN GRIFFIN and JENNIFER FOWLKES GRIFFIN, Defendants.

          ORDER

          MARTIN REIDINGER, UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on the Plaintiff's Motion for Service by Alternative Means and Request for Additional Time to Serve [Doc. 9].

         I. PROCEDURAL BACKGROUND

         On September 24, 2018, the Plaintiff David Oppenheimer (“Plaintiff”), initiated this action against the Defendants James Sean Griffin and Jennifer Fowlkes Griffin (collectively, “Defendants”). [Doc. 1]. On January 9, 2019, the Court ordered Plaintiff to show cause for his failure to effect service of the Summons and Complaint on the Defendants. [Doc. 5]. On January 23, 2019, the Plaintiff filed a response indicating that the Complaint and a request to waive service of a Summons had been sent by certified mail to the Defendants' addresses but undelivered as “Unclaimed/Being returned to sender.” [Docs. 7, 7-1]. Subsequently, the Plaintiff hired a private investigator to locate the Defendants in an effort to effectuate service. [Id.]. On February 4, 2019, the Court extended the time for Plaintiff to effectuate service of the Summons and Complaint on the Defendants by sixty (60) days. [Doc. 8]. On April 15, 2019, ten (10) days after the extended deadline, the Plaintiff filed the present motion. [Doc. 9].

         II. DISCUSSION

         A. Leave to Serve Process by Alternative Means

          Rule 4(e)(1) of the Federal Rules of Civil Procedure provides that an individual may be served by,

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.

         Fed. R. Civ. P. 4(e)(1). Rule 4(j)(1) of the North Carolina Rules of Civil Procedure provides that service on an individual may be accomplished by one of the following:

a. By delivering a copy of the summons and of the complaint to the natural person or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.
b. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute.
c. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.
d. By depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the party to be served, delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, “delivery receipt” includes an electronic or facsimile receipt.
e. By mailing a copy of the summons and of the complaint by signature confirmation as provided by the United States Postal Service, addressed to the party to be ...

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