United States District Court, E.D. North Carolina, Southern Division
HERBERT J. ARNDT, Plaintiff,
HUGH HURWITZ, Acting Director of the Federal Bureau of Prisons, and WILLIAM BARR, in his official capacity as Attorney General, Defendants.
W. FLANAGAN United States District Judge
matter is before the court on defendants' motion to
dismiss for lack of personal jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(2) and insufficient service of
process pursuant to Federal Rule of Civil Procedure 12(b)(5).
(DE 14). The issued raised have been fully briefed, and in
this posture are ripe for ruling. For the reasons noted,
defendants' motion is granted.
a former correctional officer proceeding pro se, initiated
this action on November 19, 2018, asserting defendants
violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq.. Service of process was due February 17,
2019. On February 19, 2019, the clerk of court sent plaintiff
notice of his failure to perfect service within 90 days, and
directed him to demonstrate good cause for why service was
not made within the prescribed period. Plaintiff responded by
filing a process server's invoice, which did not show
proof of service.
March 4, 2019, the court found good cause to extend the
service deadline pursuant to Rule 4(m), directing plaintiff
to make service within 21 days of the order. The court
explained that plaintiff must “to complete service on
defendants in compliance with the rules of service as
outlined in both the Federal and North Carolina Rules of
Civil Procedure, ” specifically citing Federal Rules
4(i) and 4(m), as well as North Carolina Rules
4(j)(1)(c)-4(j)(1)(e). One week later, plaintiff filed two
affidavits attesting that, on February 27, 2019, the process
server delivered a copy of the summons and complaint to a
secretary at the United States Department of Justice.
(See Server Aff. (DE 11, 12)). Defendants filed the
instant motion to dismiss on April 22, 2019.
Standard of Review
Rule of Civil Procedure 12(b)(2) allows for dismissal of a
claim for lack of personal jurisdiction. “When a
district court considers a question of personal jurisdiction
based on the contents of a complaint and supporting
affidavits, the plaintiff has the burden of making a prima
facie showing in support of its assertion of
jurisdiction.” Universal Leather, LLC v. Koro AR,
S.A., 773 F.3d 553, 558 (4th Cir. 2014). At this stage,
the court “must construe all relevant pleading
allegations in the light most favorable to plaintiff, assume
credibility, and draw the most favorable inferences for the
existence of jurisdiction.” Combs v. Bakker,
886 F.2d 673, 676 (4th Cir.1989); see Mylan Labs., Inc.
v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993)(“[T]he
district court must draw all reasonable inferences arising
from the proof, and resolve all factual disputes, in the
motion under Rule 12(b)(5) challenges the sufficiency of
service of process. See Fed.R.Civ.P. 12(b)(5).
“When the process gives the defendant actual notice of
the pendency of the action, the rules . . . are entitled to a
liberal construction” and “every technical
violation of the rule or failure of strict compliance may not
invalidate the service of process.” Armco, Inc. v.
Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089
(4th Cir. 1984). Nevertheless, “the rules are there to
be followed, and plain requirements for the means of
effecting service of process may not be ignored.”
Id. The plaintiff bears the burden of establishing
that process properly has been served. Dalenko v.
Stephens, 917 F.Supp.2d 535, 542 (E.D. N.C. 2013);
see also MylanLabs, 2 F.3d 56, 60 (4th Cir. 1993)
(holding the plaintiff must prove service of process if
plaintiff brings an action against an agency of the United
States or a United States officer sued in his official
capacity, the plaintiff must serve process in accordance Rule
4(i). This entails (1) delivering a copy of the summons and
complaint to the United States Attorney for the district in
which the action is brought, or to an Assistant United States
Attorney or clerical employee designated by the United States
Attorney, or by sending a copy of the documents by registered
or certified mail to the civil process clerk at the office of
the United States Attorney; (2) sending a copy of the of the
summons and complaint to the Attorney General of the United
States by registered or certified mail; and (3) sending a
copy of the summons and complaint by registered and certified
mail to the agency or officer in question. See
Fed.R.Civ.P. 4(i)(1), (2).
plaintiff has failed to meet the requirements of Rule 4(i).
Plaintiff has not shown proof of service on the United States
Attorney for the Eastern District of North Carolina.
See Fed.R.Civ.P. 4(i)(1)(A). In addition, his
process server attempted to serve both the Attorney General
and the Acting Director of the Bureau of prisons by
delivering process to a secretary at the office of the
Department of Justice. (See Server Aff. (DE 11,
12)). Even liberally construed, such service plainly is not
by registered or certified mail. See Fed.R.Civ.P.
contends that he must be given an extension of time under
Rule 4(i)(4)(A), which allows for reasonable time to cure a
failure to serve an agency, corporation, officer, or employee
sued in an official capacity “if the party has served
either the United States attorney or the Attorney General of
the United States.” Fed.R.Civ.P. 4(i)(4)(A); see
Fed.R.Civ.P. (4)(i)(2). However, as discussed above,
plaintiff has not served either United States attorney or the
Attorney General. (See Server Aff. (DE 11, 12)).
Consequently, plaintiff is not entitled to an extension of
time to serve process under Rule 4(i)(4)(A).
that remains is to determine the appropriate relief in this
instance. “If a defendant is not served within 90 days
after the complaint is filed, the court--on motion or on its
own after notice to the plaintiff--must dismiss the action
without prejudice against that defendant or order that
service be made with in a specified time. ” Fed. R.
Civ.P. 4(m). The court in its discretion chooses the latter
option. Within 45 days, plaintiff is ordered to perfect