Blaylock v. AKG N. Am.

• Decision Date: 16 August 2022
• Docket Number: COA21-607
• Citation: 877 S.E.2d 394
• Parties: Gary W. BLAYLOCK, Plaintiff, v. AKG NORTH AMERICA, Defendant.
• Court: North Carolina Court of Appeals

877 S.E.2d 394

Gary W. BLAYLOCK, Plaintiff,

v.AKG NORTH AMERICA, Defendant.

No. COA21-607

Court of Appeals of North Carolina.

Filed August 16, 2022

Gary Blaylock, Plaintiff-Appellant, pro se.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., Raleigh, by Zebulon D. Anderson and David R. Ortiz, for Defendant-Appellee.

JACKSON, Judge.

¶ 1 Plaintiff, Gary Blaylock, appeals from an order granting Defendant AKG North America, Inc.’s motions to dismiss under North Carolina Rules of Civil Procedure 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6). After careful review, we affirm.

I. Background

¶ 2 Gary Blaylock ("Plaintiff") was hired by AKG North America ("Defendant") in 2017. Plaintiff alleges that Defendant fired him for repeatedly complaining about the "sexual harassment, hostile work environment, and absence of Supervisors [sic] attempt to resolve the issues."

¶ 3 On 18 December 2019, Plaintiff filed his original complaint in Alamance County Superior Court and the summons was issued that day. On 23 December 2019, Plaintiff's attempt to serve Defendant failed when the Alamance County Sheriff returned the summons, noting that Defendant had not been served because "[t]he address given is in Orange Co[unty]." Thereafter, in the nearly 12 months this case was pending, Plaintiff never properly served Defendant. On 17 January 2020, Defendant removed the action to the Middle District of North Carolina based on federal claims alleged in Plaintiff's complaint, filing notices of removal in both the state and federal courts. In the notice of removal before the federal court, Defendant raised, inter alia , that Plaintiff had not effected service of process.

¶ 4 After removal, on 7 February 2020, Defendant sought an extension of time to answer or otherwise respond to the Complaint, explaining that it had not been served by Plaintiff. Plaintiff, however, filed a motion to remand the action back to state court. Defendant sought a second extension of time on 5 March 2020, again explaining that it had not yet been served by Plaintiff. Thereafter, Defendant filed a brief in opposition to Plaintiff's motion to remand, arguing that removal was proper for the reasons stated in its notice of removal, namely the federal claims in Plaintiff's complaint. However, in a hearing before the federal court, Plaintiff "disavow[ed] any reliance whatsoever on federal law in his Complaint," and the motion to remand was granted.

¶ 5 On 5 August 2020, Plaintiff mailed the complaint and summons to Defendant's litigation counsel, and the complaint was received by counsel on 10 August 2020. However, on 7 August 2020, Defendant had filed a motion to dismiss the original complaint under Rule 12(b). In response to this motion, Plaintiff amended his complaint on 12 August 2020. Defendant's litigation counsel received this amended complaint at some point between 12 August and 18 August 2020.¹ On 8 September 2020, Defendant filed a motion to dismiss the amended complaint on the same Rule 12(b) grounds.

¶ 6 On 8 December 2020, a hearing was conducted on Defendant's motion to dismiss. Plaintiff filed a motion to amend his complaint again that same morning, but the trial court informed Plaintiff that the motion was not properly before the court. Defendant's counsel told the trial court that Plaintiff was on notice of the defective service because Defendant raised the absence of service in its filings, including in both motions for extension of time and the notice of removal in federal court, and "at all times we've made it clear to Mr. Blaylock and the Court ... that there hasn't been service[.]" After hearing from both parties, on 11 December 2020, the trial court granted Defendant's motion to dismiss under Rules 12(b)(2), 12(b)(4), and 12(b)(5), and under 12(b)(6) as an "additional and independent basis for dismissal[.]"

¶ 7 Plaintiff appealed to this Court on 16 April 2021.

II. Jurisdiction

¶ 8 We must first address whether we have jurisdiction to hear this appeal. Although Plaintiff's notice of appeal was filed greater than four months after the trial court's order was entered, which ordinarily would be untimely under North Carolina Rule of Appellate Procedure 3(c), the record on appeal does not indicate the date the order was served or contain a certificate of service.

¶ 9 It is true that "[t]he appellant has the burden to see that all necessary papers are before the appellate court." Ribble v. Ribble , 180 N.C. App. 341, 342, 637 S.E.2d 239, 240 (2006) (internal quotation and citation omitted). However, in similar circumstances, we have held that "where there is no certificate of service in the record showing when appellant was served with the trial court judgment, appellee must show that appellant received actual notice of the judgment more than thirty days before filing notice of appeal in order to warrant dismissal of the appeal." In re Duvall , 268 N.C. App. 14, 17, 834 S.E.2d 177, 180 (2019) (internal marks and citation omitted). Therefore, "unless the appellee argues that the appeal is untimely, and offers proof of actual notice, we may not dismiss." Id. (internal quotation and citation omitted). Here, Defendant-Appellee fails to argue the appeal is untimely or offer proof of actual notice. In fact, Defendant concedes that "Plaintiff timely appealed." Therefore, Defendant has waived Plaintiff's failure to include proof of service in the record, and this appeal is properly before us.

III. Discussion

¶ 10 Plaintiff argues that the trial court erred by (1) dismissing his claims for lack of personal jurisdiction, (2) dismissing his claims for failure to state a claim, (3) ruling on the merits of his claims after finding no personal jurisdiction, (4) dismissing his complaint without considering lesser remedies, and (5) not allowing him to amend his complaint a second time. Because we hold that the trial court properly concluded that it did not have personal jurisdiction over Defendant and was required to dismiss the action, we need not address Defendant's other arguments.

A. Standard of Review

¶ 11 "This Court reviews questions of law implicated by a motion to dismiss for insufficiency of service of process de novo. " Patton v. Vogel , 267 N.C. App. 254, 256, 833 S.E.2d 198, 201 (2019) (cleaned up). "On a motion to dismiss for insufficiency of process where the trial court enters an order without making findings of fact, our review is limited to determining whether, as a matter of law, the manner of service of process was correct." Id. at 257, 833 S.E.2d at 201 (internal quotation and citation omitted).

B. Dismissal for Lack of Personal Jurisdiction

¶ 12 Plaintiff first argues that the trial court erred by dismissing his claims for lack of personal jurisdiction because personal jurisdiction was present and this argument was waived by Defendant. We disagree.

¶ 13 "Absent valid service of process, a court does not acquire personal jurisdiction over the defendant and the action must be dismissed." Stewart v. Shipley , 264 N.C. App. 241, 244, 825 S.E.2d 684, 686 (2019) (internal quotation and citation omitted). The methods for proper service of process are established by Rule 4 of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, R. 4 (2021). A corporation may be served by mail or delivery to an officer, director, managing agent, or authorized service agent. Id. § 1A-1, R. 4(j)(6). Rule 4 must be "strictly enforced[,]" Grimsley v. Nelson , 342 N.C. 542, 545, 467 S.E.2d 92, 94 (1996), and "actual notice" cannot cure insufficient service of process, Shipley , 264 N.C. App. at 244, 825 S.E.2d at 686 ("While a defective service of process may give the defending party sufficient and actual notice of the proceedings, such actual notice does not give the court jurisdiction over the party.") (internal quotation and citation omitted).

¶ 14 Plaintiff repeatedly admits that Defendant was not timely served in his brief.² Plaintiff takes the position that Defendant, who was unserved and therefore not required to respond to the suit, waived this jurisdictional argument by appearing and filing motions in court. Specifically, Plaintiff argues that because Defendant (1) removed the case to federal court and (2) "sought and was granted two extensions of time, there must be a submission to the jurisdiction of the court in order for the court to grant any motion filed by the unserved Defendant[.]" We disagree with Plaintiff's position that that the filing of any motion or notice in court constitutes a waiver of service of process and consent to the court's jurisdiction.

¶ 15 Our General Statutes provide:

A court of this State having jurisdiction of the subject matter may, without serving a summons upon him, exercise jurisdiction in an action over a person:

(1) Who makes a general appearance in an action; provided, that obtaining an extension of time within which to answer or otherwise plead shall not be considered a general appearance[.]

N.C. Gen. Stat. § 1-75.7(1) (2021). Therefore, if a defendant makes a "general appearance," the trial court has personal jurisdiction, even if service of process was defective. Alexiou v. O.R.I.P., Ltd. , 36 N.C. App. 246, 247, 243 S.E.2d 412, 413, cert. denied , 295 N.C. 465, 246 S.E.2d 215 (1978). Here, as an initial matter and notwithstanding the fact that the motions were filed in federal court, Plaintiff's argument that filing for extensions of time constitutes a general appearance is expressly contradicted by the statute. Therefore, whether Defendant's removal of the case to federal court constituted a general appearance is primarily at issue.

¶ 16 Our "[c]ourts have interpreted the concept of ‘general appearance’ liberally." Woods v. Billy's Auto. , 174 N.C. App. 808, 813, 622 S.E.2d 193, 197 (2005). "[I]f the defendant by motion or otherwise invokes the adjudicatory powers of the court in any other matter not directly related to the questions of jurisdiction, he has made a general appearance and has submitted himself to the...