May v. Martin Fein Interest Ltd.

• Decision Date: 19 May 2022
• Docket Number: 5:21-CV-00083-M
• Parties: RAYMOND EARLY MAY, JR. and, ANGELA DOLORES MAY, Plaintiffs, v. MARTIN FEIN INTEREST LTD., et al., Defendants.
• Court: U.S. District Court — Eastern District of North Carolina

RAYMOND EARLY MAY, JR. and, ANGELA DOLORES MAY, Plaintiffs, v. MARTIN FEIN INTEREST LTD., et al., Defendants.

No. 5:21-CV-00083-M

United States District Court, E.D. North Carolina, Western Division

May 19, 2022

ORDER

RICHARD E. MYERS II CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the court on Defendants' Motions to Dismiss Plaintiffs' Complaint Pursuant to Fed.R.Civ.P 12(b)(2), (b)(4), (b)(5), (b)(6) [DE 22, DE 26, DE 63, DE 64 DE 66, DE 67, DE 68, DE 71, DE 84] and Plaintiffs' Motion to Extend Time to Serve Summons [DE 81], Motion to Amend Summons and Add Defendants [DE 82], and Petition to Use Alternative Method of Service [DE 97]. For the reasons that follow, Plaintiffs' motions are granted, and Defendants' motions are denied as moot.

I. Background

This is an action by pro se plaintiffs. The Plaintiffs' claims arise from a series of disputes between the Plaintiffs and their apartment complex, Creekside at Crabtree Apartments. Among other allegations, the Plaintiffs allege that they were not allowed to pay rent like other tenants [DE 1-2, Compl. ¶¶ 38, 42-43; DE 12, at 4-5], that Defendants refused to sign for and accept Plaintiffs' medications, [DE 1-2, Compl. ¶¶ 44, 51-53, 59; DE 12, at 5-6, 12], and that Defendants made other statements and actions that the Plaintiffs allege are racist and discriminatory, [DE 1-2, Compl. ¶¶ 47-48, 61; DE 12, at 6-7, 8-9]. Plaintiffs' Complaint includes a Fair Housing Act (FHA) claim for racial discrimination, an FHA claim for retaliation, an FHA claim for disability discrimination, a claim under the Americans with Disabilities Act, and a claim for intentional infliction of emotional distress. [DE 1-2; DE 12].

On February 19, 2021, Plaintiffs filed a motion for leave to proceed in forma pauperis along with their complaint and supporting documents. [DE 1]. On February 23, 2021, the court entered an order directing Plaintiffs to correct certain deficiencies and return corrected documents within fourteen days. [DE 6]. On March 5, 2021, Plaintiffs filed new motions for leave to proceed in forma pauperis and proposed summonses. [DE 7, DE 8].

On June 17, 2021, Magistrate Judge Jones submitted a Memorandum and Recommendation (“M&R”). [DE 12]. The M&R recommended dismissing the claims under the Americans with Disabilities Act and for intentional infliction of emotional distress. It recommended allowing Plaintiffs to proceed with their claims for racial discrimination, retaliation, and disability discrimination under the Fair Housing Act. This court adopted the M&R in full. [DE 16], On August 2, 2021, summonses were issued, [DE 17], but service was improper. All Defendants moved to dismiss for improper service. [DE 22, DE 26]. Plaintiffs moved to extend time to serve summonses and the complaint, amend summonses, and for service by the U.S. Marshals. [DE 43, DE 44, DE 45]. On October 21, 2021, Magistrate Judge Jones entered an order allowing the Plaintiffs to amend their summonses, ordering the U.S. Marshal to serve Defendants, and extending the time to effect service until December 15, 2021. [DE 50].

On November 10, 2021, Plaintiffs filed new proposed summonses [DE 54], which were reissued on November 16, 2021 [DE 55]. Plaintiffs attempted service on William Hubbard [DE 54], Brenda Hubbard [DE 54-1], Trevor Stroud [DE 54-2], Katie Nelson [DE 54-3], Martin Fein Interest Ltd. [DE 54-4], Invesco [DE 54-5], Bell Partners [DE 54-6], and Desserraye Perry [DE 54-7]. The returns of service are filed at ¶ 57-DE 62, DE 74, and DE 83.

Ten Defendants are currently named in the case. Five have been served (as addressed on the proposed summonses): Bell Partners, Invesco, Katie Nelson, Trevor Stroud, and William Hubbard. Three parties are unserved: Martin Fein, Brenda Hubbard, and Desserraye Perry. Two parties are unserved: Karry Allen and Meagan Dawes.

The five Defendants who purportedly received service filed second motions to dismiss pursuant to Rule 12(b)(2), (b)(4), (b)(5), and (b)(6).

IL Legal Standards

Rule 4 of the Federal Rules of Civil Procedure governs service of process in the federal courts. Service of process is the issuance of a summons and complaint to each defendant. Fed.R.Civ.P. 4(a), (b), (c). “Service of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.” United States v Perez, 752 F.3d 398, 406 (4th Cir. 2014). “A plaintiff has the burden to show that she effected service of process properly and that the court has personal jurisdiction over all defendants.” Saimplice v. Ocwen Loan Servicing Inc., 368 F.Supp.3d 858, 865 (E.D. N.C. 2019).

Rule 4(e) of the Federal Rules of Civil Procedure governs serving an individual. It states that an 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; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e).

Under Rule 4(e)(1), Plaintiffs can serve an individual in accord with North Carolina law. N.C. Gen. Stat § 1A-1, Rule 4(j)(1) provides that the manner of service of process on a natural person shall be by one of the following:

a. By delivering a copy of the summons and of the complaint to the natural person or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.

b. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute.

c. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.

d. By depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the party to be served, delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, “delivery receipt” includes an electronic or facsimile receipt.

e. By mailing a copy of the summons and of the complaint by signature confirmation as provided by the United States Postal Service, addressed to the party to be served, and delivering to the addressee.

N.C. Gen. Stat. 1A-1, Rule 4(j)(1).

Rule 4(h) of the Federal Rules of Civil Procedure governs serving a corporation, partnership, or association. Rule 4(h) states that a domestic corporation or partnership must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant.

Fed. R. Civ. P. 4(h)(1).

Under Rule 4(h)(1)(A), Plaintiffs can serve a corporation, partnership, or association in accord with North Carolina law. N.C. Gen. Stat § 1 A-l, Rule 4(j)(6) provides that the manner of service of process shall be by one of the following:

a. By delivering a copy of the summons and of the complaint to an officer, director, or managing agent of the corporation or by leaving copies thereof in the office of such officer, director, or managing agent with the person who is apparently in charge of the office.

b. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute.

c. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the officer, director or agent to be served as specified in paragraphs a and b.

d. By depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the officer, director, or agent to be served as specified in paragraphs a. and b., delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, “delivery receipt” includes an electronic or facsimile receipt.

N.C. Gen. Stat § 1A-1, Rule 4(j)(6).

Rule 4(m) governs dismissal for failure to serve process within 90 days. "If a defendant is not served within 90 days after the complaint is filed, the court. . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m). "But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id. Nevertheless, a defect in service can be cured by actual notice if the defect is a mere technicality and there is substantial compliance with Rule 4's strictures. See Scott v. Maryland State Dep't of Lab., 673 Fed.Appx. 299, 304 (4th Cir. 2016).

Although the purpose of service of process is actual notice plaintiffs must still comply with the plain requirements of Rule 4. Id. However, when a defendant...