Johnson v. Kersey

• Decision Date: 03 May 2021
• Docket Number: 1:20CV251
• Court: U.S. District Court — Middle District of North Carolina
• Parties: JOHNNIE JOHNSON, Plaintiff, v. RALPH KERSEY, Scotland County Sheriff in his official capacity, MITCHELL WOODS in his individual capacity, MICHAEL WOODS in his individual capacity, and JOHN DOE, as SURETY, Defendants.

JOHNNIE JOHNSON, Plaintiff, v. RALPH KERSEY, Scotland County Sheriff in his official capacity,MITCHELL WOODS in his individual capacity, MICHAEL WOODS in his individual capacity,and JOHN DOE, as SURETY, Defendants.

1:20CV251

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

May 3, 2021

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court upon a motion to dismiss by Defendants Mitchell Woods and Michael Woods (hereafter "Defendants," unless otherwise indicated) pursuant to Federal Rules of Civil Procedure 12(b)(2), (4), (5) and (6). (Docket Entry 12.) Plaintiff filed a response (Docket Entries 20, 21), and Defendants filed a reply (Docket Entry 22). For the following reasons, the undersigned will recommend granting Defendants' motion.

I. BACKGROUND

On October 15, 2019, Plaintiff filed form AOC-CV-101, Application and Order Extending Time to File Complaint, in Scotland County Superior Court. (See Docket Entry 1-2.)¹ The form briefly alleges that he was "choked and beat in the head" by Mitchell and Michael Woods atScotland County Detention Center on October 16, 2016. (Id.) The ensuing order (the lower half of the same form) signed by the Scotland County Clerk of Court, granted Plaintiff until November 4, 2019 to file his complaint. (Id.) On October 16, 2019, the Clerk also issued form AOC-CV-102, Civil Summons to be Served with Order Extending Time to File Complaint, which names Defendants Mitchell and Michael Woods but does not list their addresses.² (See Docket Entry 21-1.) Plaintiff then filed his complaint in Scotland County Superior Court on November 4, 2019 raising a Section 1983 claim for cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments and North Carolina state law claims for battery, intentional infliction of emotional distress, and negligent infliction of emotional distress. (See generally Compl., Docket Entry 1-4.) The complaint names Mitchell Woods, Michael Woods, Scotland County Sheriff Ralph Kersey, and surety Zurich American Insurance Company as Defendants. (Id.) Civil summonses for all four Defendants were issued by the Clerk on that same day. (See Docket Entries 1-6, 1-7.)

Having not effectuated service upon any of the Defendants within the time required by North Carolina law, Plaintiff apparently obtained an alias and pluries ("A&P") summons³ on January 13, 2020.⁴ (See Docket Entry 21 at 2.) Plaintiff filed an amended complaint on February 10, 2019. (Am. Compl., Docket Entries 1-9, 4 (renaming the surety as John Doe).)Defendant Sheriff Kersey was served with process on February 18, 2020 and removed the case to this Court on March 17, 2020. (See generally Docket Entry 1.)

Because Defendants Mitchell and Michael Woods had still not been served, Plaintiff obtained another A&P summons on May 26, 2020, which refers back to the November 4, 2019 summons and the January 13, 2020 A&P summons. (Docket Entry 13-1.) Defendants were personally served with the May 26, 2020 A&P summons and a copy of the complaint on August 17, 2020. (See Docket Entry 11.) Plaintiff then obtained another A&P summons on August 20, 2020, which refers back to the three prior summonses. (Docket Entry 21-2.) Defendants filed the foregoing motion to dismiss on September 4, 2020. (Docket Entry 12.) On October 1, 2020, Defendants were served with the August 20, 2020 A&P summons and a copy of the complaint. (Docket Entries 18, 19.) Plaintiff thereafter filed a response to Defendants' motion to dismiss. (Docket Entries 20, 21.) Defendants then filed a reply. (Docket Entry 22.)

II. STANDARDS OF REVIEW

Defendants move to dismiss Plaintiff's action against them pursuant to Federal Rules of Civil Procedure 12(b)(2), (4), (5), and (6). (Docket Entry 12, 13.)

A. Rules 12(b)(2),

12(b)(4), and 12(b)(5)

A defendant may seek dismissal of a complaint because the court lacks personal jurisdiction over the defendant. Fed. R. Civ. P. 12(b)(2). In a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), "the plaintiff bears the burden [of] making a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge." Consulting Eng's Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009). Additionally, underFederal Rules of Civil Procedure 12(b)(4) and 12(b)(5), a defendant may seek dismissal for insufficient process and insufficient service of process, respectively. Fed. R. Civ. P. 12(b)(4), (5). When a defendant moves to dismiss under Rule 12(b)(4) or Rule 12(b)(5), the plaintiff has the burden of establishing that the process was sufficient, and that service of process was valid. Elkins v. Broome, 213 F.R.D. 273, 275 (M.D.N.C. 2003). Where a plaintiff does not effectuate "valid service of process, the district court [is] without jurisdiction of the defendant . . . ." Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984).

B. Rule 12(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (1999). A complaint that does not "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face'" must be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct." Id.; see also Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) ("On a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face.") (citations and quotations omitted). The "court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff," but does not consider "legal conclusions, elements of a cause of action, and bare assertions devoid of factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, the standard requires aplaintiff to articulate facts, that, when accepted as true, demonstrate the plaintiff has stated a claim that makes it plausible he is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678, and Twombly, 550 U.S. at 557).

A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," so as to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests . . . ." Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 8 does not, however, unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Fair notice is provided by setting forth enough facts for the complaint to be "plausible on its face" and "raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact) . . . ." Id. at 555 (internal citations omitted). "Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations." Id. at 556 (quoting Scheuer v. Rhodes, 416, U.S. 232, 236 (1974)).

III. ANALYSIS

Defendants make two arguments in support of their motion to dismiss: 1) Plaintiff failed to timely serve Defendants; and 2) Plaintiff's claims are time-barred. (See generally Docket Entry 13.) As an initial matter, because Defendants were not served until August 17, 2020 (several months after this case was removed from state court), the Federal Rules of Civil Procedure determine the sufficiency of process. See Wallace v. Cmty. Radiology, No. CIV.A. 1:09-0511, 2011 WL 4596694, at *3 (S.D.W. Va. Sept. 30, 2011) ("After removal, attempts to serve process are governed by Federal Rule of Civil Procedure 4.") (citing Fed. R. Civ. P.81(c)(1)). Federal Rule of Civil Procedure 4 provides that service may be effectuated by "following the state law for serving a summons." Fed. R. Civ. P. 4(e)(1).

Pursuant to North Carolina Rule of Civil Procedure 4, service of a summons must occur within 60 days of its issuance. N.C. R. Civ. P. 4(c). If a plaintiff fails to timely serve the summons, the summons "becomes dormant and unservable." Dozier v. Crandall, 411 S.E.2d 635, 636 (N.C. Ct. App. 1992). However, a plaintiff may obtain an alias and pluries ("A&P") summons which will revive the summons and "keep the action alive until service can be made." Roshelli v. Sperry, 291 S.E.2d 355, 356 (N.C. Ct. App. 1982). An A&P summons may be obtained "at any time within 90 days after the date of issue of the last preceding summons." N.C. R. Civ. P. 4(d)(1). Thus, a plaintiff may keep an action alive by timely obtaining sequential A&P summonses, and "[a]s long as this chain of summonses is maintained, the service of summons will relate back to the original date of issuance." In re Adoption of Searle, 327 S.E.2d 315, 318 (N.C. Ct. App. 1985) (citing Williams v. Bray, 159 S.E.2d 556 (N.C. 1968)). However, to relate back to the first date of issuance, an A&P summons must "contain a reference in its body 'to indicate its alleged relation to the original.'" Integon Gen. Ins. Co. v. Martin, 490 S.E.2d 242, 244 (N.C. Ct. 1997) (citing Mintz v. Frink, 6 S.E.2d 804, 806 (N.C. 1940)). "The issuance of an [A&P] summons without this reference has the double effect of initiating a new action and discontinuing the original one." Id. With these principles in mind, the Court turns to Defendants' arguments.

A. Failure to timely serve Defendants

In their initial brief, Defendan...