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Gittens v. Equifax

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

November 5, 2019

JAMAAL GITTENS, Plaintiff,
v.
EQUIFAX, Defendant.

          ORDER

          Frank D. Whitney, Chief United States District Judge.

         THIS MATTER is before the Court, sua sponte, concerning the status of this case. Following the Opinion from the Fourth Circuit Court of Appeals in this matter: Gittens v. Equifax, No. 16-2256 (4th Circ. May 1, 2017), which vacated and remanded this Court's prior order of dismissal (Doc. No. 11), this Court directed Plaintiff to SHOW CAUSE that he has complied with the Federal Rules of Civil Procedure regarding service of summons and complaint to Defendant Equifax (Doc. No. 18).

         Without any explanation or offer of argument, Plaintiff resubmitted the same materials originally submitted attempting to show proof of service on Equifax (compare Doc. No. 4, p. 4 with Doc. No. 19, p. 2), including the return certified mail card, with a very light stamp appearing in the signature block. The return certified mail card indicates it was sent to an address of “Equifax Information Service, PO Box 743256 Atlanta GA 30374.” (Doc. No. 19). Plaintiff contends the light stamp indicates receipt at the address served by Plaintiff on May 25, 2016. Defendant Equifax has never appeared in this Court, nor did Equifax enter an appearance in this matter on appeal to the Fourth Circuit Court of Appeals.

         In his prior filing and the response to the Show Cause Order submitted on remand, Plaintiff does not make any argument regarding service on an officer, a managing or general agent, or other agent authorized to accept service of process in accordance with Federal Rules of Civil Procedure 4(h). Likewise, the return certified mail card does not indicate it was addressed to an officer, a managing or general agent, or other agent authorized to accept service of process.

         Under the rules governing service of process, “the plaintiff bears the burden of establishing that the service of process has been performed in accordance with the requirements of Federal Rule of Civil Procedure 4.” Elkins v. Broome, 213 F.R.D. 273, 275 (M.D. N.C. 2003); see also Plant Genetic Systems v. Ciba Seeds, 933 F.Supp. 519, 526 (M.D. N.C. 1996).

         Service of process in this case is controlled by both North Carolina law, where this Court is located, as well as Georgia law, as the state where service was attempted to be made on Defendant Equifax. Fed.R.Civ.P. 4(e) (“[A]n individual ... 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 courts of general jurisdiction in the state where the district court is located or where service is made . . . .”); Fed.R.Civ.P. 4(h) (applying Fed.R.Civ.P. 4(e)(1) to service on corporate defendants).

         Under North Carolina law, service on corporate defendants may be effectuated by sending the summons and complaint by certified mail addressed to “the officer, director or agent to be served.” N.C. Gen. Stat. § 1A-1; N.C. R. Civ. P. 4(j)(6)(c).

The proper methods of service on corporations are to either (1) “deliver a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process, ” or (2) follow the state law rules for effecting service. Fed.R.Civ.P. 4(h)(1). The North Carolina Rules of Civil Procedure provide that corporations should be served by delivering or mailing a copy of the summons and of the complaint to either “an officer, director, or managing agent of the corporation, ” someone who appears to be in charge of that person's office, or to the person authorized to accept service for the corporation. N.C. R. Civ. P. 4(j)(6).

Brown v. Blue Cross and Blue Shield of North Carolina, 226 F.R.D. 526, 528 (M.D. N.C. 2004); see also Sweeting v. Wells Fargo Bank, 2017 WL 3923978 (2017) (dismissing complaint filed by pro se plaintiff for failure to comply with Federal Rules of Civil Procedure and North Carolina Rules of Civil Procedure in serving the defendant).

         The uncontested record shows Plaintiff did not attempt to serve process upon an appropriate officer, director, managing agent, or authorized agent of Defendant Equifax. Indeed, Plaintiff has failed to show he designated any individual either in the summons or on the envelope to be served on Defendant's behalf. Summons issued to a corporation without the identification of an officer, director, or managing or authorized agent is defective on its face. Lane v. Winn-Dixie Charlotte, Inc., 609 S.E.2d 456, 460 ( N.C. Ct. App. 2005) (“A review of the summons demonstrates that plaintiffs failed to designate any person authorized by Rule 4(j)(6) to be served on behalf of the corporate defendant in violation of the clear requirements of the rule. Accordingly, the summons was defective on its face.”)).

         Similarly, without directing that service be made on a specific person, Plaintiff's purported service on “Equifax” fails to comply with the service requirements of Rule 4(j) of the Federal Rules of Civil Procedure. See Adams v. GE Money Bank, No. 1:06cv00227, 2007 WL 1847283, at *2-3 (M.D. N.C. June 25, 2007) (dismissing action where pro se plaintiff mailed summonses addressed to two defendants, a corporation and a partnership, without directing the summonses to the statutory recipients); Shaver v. Cooleemee Volunteer Fire Dep't, No. CIV.A. 1:07CV00175, 2008 WL 942560, at *2 (M.D. N.C. Apr. 7, 2008) (same). Moreover, although Rule 4(j) also permits service “in the manner prescribed by [North Carolina] law for serving a summons or other like process upon any such defendant, ” Plaintiff did not comply with the applicable North Carolina law for the same reasons. See N.C. R. Civ. P. 4(j)(6).

         The same result occurs under Georgia law. See Mann v. Ameris Bank, 2017 WL 6629261, at *3 (M.D. Ga. 2017). Similar to the plaintiff in Mann, Plaintiff here mailed by certified mail a copy of his complaint and summons to Defendant's P.O. Box. (See Doc. No. 19, p. 2.) However, service by mail without the defendant's execution of an acknowledgement of the waiver of service is an improper form of service under federal, North Carolina, and Georgia laws. See Id. (citing Fed.R.Civ.P. 4(d); Fitzpatrick v. Bank of N.Y. Mellon, 580 Fed.Appx. 690, 693-94 (11th Cir. 2014) (absent waiver of formal service, effecting service by mail is improper under the Federal Rules of Civil Procedure and Georgia law); KMM Indus., Inc. v. Prof'l Ass'n, Inc., 297 S.E.2d 512, 513 (Ga.Ct.App. 1982) (“There is no provision in Georgia law which authorizes a party to serve a defendant corporation directly by certified or registered mail . . . .”)). There is no indication here that Plaintiff requested a waiver of service from Defendant, and it does not appear Defendant has waived formal service. Thus, mailing a copy of the summons and complaint to a P.O. Box maintained on behalf of Defendant was ineffective service and dismissal for insufficient service of process is warranted on these grounds under applicable Georgia law. See, e.g., Dyer v. Wal-Mart Stores, Inc., 318 Fed.Appx. 843, 844 (11th Cir. 2009); Igbinigie v. Wells Fargo Bank, N.A., 2008 WL 4862597, at *2-3 (M.D. Ga. 2008).

         Additionally, Rule 4 unequivocally states that service must be made by a person who is not a party to the lawsuit. See Fed.R.Civ.P. 4(c)(2). The record reflects “Jamal Gittens” as the “Sender” of the summons and complaint to Defendant's P.O. Box in Atlanta, Georgia. (See Doc. No. 4, pp. 1-2.) Because Plaintiff is a party to this lawsuit, he was an improper person to effect service on his behalf. Accordingly, dismissal of Plaintiff's Complaint for insufficient process is also proper on this ground. See, e.g., Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (district court's dismissal was proper when the plaintiff himself attempted serve process through the mail); Pitts v. O'Geary, No. 5:13-CV-116-D, 2014 WL 229350, at *4 (E.D. N.C. Jan. 21, 2014) (noting Rule 4(c)(2) applies ...


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