United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge.
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).
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.
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.
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).
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).
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
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
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).
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).
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 ...