McCreary v. Vaughan-Bassett Furniture Co., Inc.

• Decision Date: 19 December 2005
• Docket Number: No. 1:05CV413.,1:05CV413.
• Citation: 412 F.Supp.2d 535
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Judy Marie MCCREARY, Plaintiff, pro se, v. VAUGHAN-BASSETT FURNITURE CO., INC., Defendant.

Page 535

412 F.Supp.2d 535

Judy Marie MCCREARY, Plaintiff, pro se, v. VAUGHAN-BASSETT FURNITURE CO., INC., Defendant.

No. 1:05CV413.

United States District Court, M.D. North Carolina.

December 19, 2005.

Order Adopting Recommendation After Referral January 26, 2006.

Judy Marie McCreary, Toast, NC, pro se.

Brian Marc Freedman, Sarah H. Roane, Ogletree Deakins Nash Smoak & Stewart, P.C., Greensboro, NC, for Defendant.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

DIXON, United States Magistrate Judge.

This matter is before the court on motions to dismiss by Defendant Vaughan-Bassett Furniture Company and by its president and CEO John Bassett, III, for lack of personal jurisdiction due to insufficiency of service of process and for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(2), (5), and (6) (docket nos. 14, 16). Plaintiff has responded in opposition to the motions and the matter is ripe for disposition. Furthermore, the parties have not consented to the jurisdiction of the magistrate judge; therefore, the court must deal with the motions by way of recommendation. For the following reasons, it will be recommended that the court grant Vaughan-Bassett's motion to dismiss Plaintiff's age discrimination and § 1983 claims based on failure to state a claim. It will be further recommended that the court deny Vaughan-Bassett's motion to dismiss Plaintiffs Title VI claim based on insufficient service of process. Finally, it will be recommended that the court grant the motion to dismiss by John Bassett, III, based on insufficient service of process.

BACKGROUND

Plaintiff was an employee of Defendant Vaughan-Bassett Furniture Company ("Vaughan-Bassett"), from August 19, 2004, until she was fired on September 8, 2004. On November 26, 2004, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (hereinafter "EEOC"), alleging that Defendant Vaughan-Bassett discriminated against her on the basis of sex and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. The EEOC issued a Dismissal and Notice of Rights to Plaintiff, which was allegedly received on or about February 16, 2005. Plaintiff filed this action on May 12, 2005. In her complaint, Plaintiff alleges that she was subjected to a hostile work environment of the basis of her sex and eventually discharged in violation of Title VII. Plaintiff also appears to allege age discrimination under the ADEA as well as a claim under 42 U.S.C. § 1983. The only named Defendant is Vaughan-Bassett, but in her allegations Plaintiff refers to John Bassett III, as a co-Defendant, and Plaintiff has attempted to effect service on both the Vaughan-Bassett company and on John Bassett, III, as an individual. Vaughan-Bassett has moved to dismiss Plaintiff's claims purportedly brought pursuant to § 1983 and the ADEA for failure to state a claim. Vaughan-Bassett has also moved for dismissal of all remaining claims based on insufficient service of process. To the extent that he is even a Defendant in the case, John Bassett, III, has also moved to dismiss based on insufficient service of process.

DISCUSSION

Motion to Dismiss Based on Insufficient Service of Process Pursuant to Rule 12(b) (5)

The court first considers the motions for dismissal based on insufficient service of process brought by Vaughan-Bassett and John Bassett, III. A motion pursuant to Federal Rule of Civil Procedure 12(b)(5) is the appropriate means for challenging the sufficiency of service of process. Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F.Supp. 519, 526 (M.D.N.C. 1996). 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. Id. Technical noncompliance with Rule 4 does not, however, always require dismissal. Courts have stated, for instance, that dismissal is not always mandated where the necessary parties have received actual notice of a suit and where they have not been prejudiced by the technical defect in service. See Karlsson v. Rabinowitz, 318 F.2d 666, 668-69 (4th Cir. 1963); Elkins v. Broome, 213 F.R.D. 273 (M.D.N.C.2003). Moreover, the court should allow a pro se litigant a certain amount of lenity that is not afforded to represented parties. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Nevertheless, "the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored." Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir.1984); see also Tart v. Hudgins, 58 F.R.D. 116, 117 (M.D.N.C.1972) (observing that a liberal interpretation of process requirements "does not mean . . . that the provisions of the Rule may be ignored if the defendant receives actual notice").

Defendant Vaughan-Bassett Furniture Company, Inc. ("Vaughan-Bassett") is a Virginia corporation with a principal mailing address in Galax, Virginia. The North Carolina Secretary of State records show that Alec G. Biggs is designated as the registered agent for Defendant Vaughan-Bassett in North Carolina, with a registered mailing address of "E. Main St. Elkin NC 28621." John Bassett, III, is the president and CEO of Vaughan-Bassett. John Bassett lives in Roaring Gap, North Carolina, and he has not appointed or authorized anyone (in Elkin or anywhere else) to accept service on his behalf. See Bassett Aff. ¶¶ 2, 3.

Rule 4(m) of the Federal Rules of Civil Procedure provides that service of a summons and complaint must be made within 120 days of the filing of the complaint. If service is not completed within that time, and the plaintiff has not shown good cause why he or she failed to effect service, the district court "shall dismiss the action without prejudice ... or direct that service be effected within a specific time." Fed. R.Civ.P. 4(m). Under Rule 4(h)(1), 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.¹ N.C.R.Civ. P. 4(j)(6).

Rule 4(e) of the Federal Rules of Civil Procedure governs the service of process upon individuals in the United States and provides that service may be accomplished by either (1) delivering a copy of the summons and complaint to the defendant personally or to a person of suitable age and discretion then residing at the defendant's home or usual place of abode or (2) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. FED. R. CIV. P. 4(e). Rule 4(e) also provides that service of process may be accomplished pursuant to the law of the state in which the district court sits. Id. North Carolina's requirements for service of process are virtually identical for all practical purposes with the requirements of Rule 4. See N.C. R. Civ. P. 4(j)(1).

Here, Plaintiff attempted to serve Defendant Vaughan-Bassett by issuing a summons addressed to the "Vaughn & Bassett Furniture Company, Elkin Division" through the U.S. Marshals Service on May 18, 2005. The summons directed the Marshal to serve summons at "501 E. Main Street, Elkin, NC 28621." On the same date, Plaintiff issued through the Marshals Service another summons which was addressed to "Vaughn & Bassett Furniture Company," to be served upon John D. Bassett, III, at the same address. The Marshal delivered both summonses to a post office box in Elkin rather than to the street address given by Plaintiff.

First, the court finds that although service was not properly effected as to Defendant Vaughan-Bassett, dismissal is not appropriate as to Vaughan-Bassett. Although Plaintiff did not identify a registered agent for Vaughan-Bassett in instructing the Marshal to serve the summons, she at least attempted to comply with Rule 4(j)(6) by instructing the Marshal to serve the summons at 501 E. Main St. Elkin NC 28621, which is even more specific than the corporation's registered mailing address of "E Main. St. Elkin NC 28621." Although the Marshal ultimately served the summons at a post office box, Plaintiff was entitled to rely on the Marshal to serve the summons at the address indicated on the summons. See 28 U.S.C. § 1915(c); see also Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) ("[H]aving provided the necessary information to help effectuate service, plaintiff should not be penalized by having his or her action dismissed for failure to effect service where the U.S. Marshal or the court has failed to perform the duties required of each of them under 28 U.S.C. § 1915(c) and Rule 4 of the Federal Rules of Civil Procedure."); Sellers v. United States, 902 F.2d 598, 602 (7th Cir.1990) (stating that the Marshal's failure to effect service of process for an in forma pauperis plaintiff is "automatically good cause" within Rule 4(j)). Furthermore, Vaughan-Bassett clearly received actual notice of the lawsuit. Based on the court's policy of liberally construing a pro se litigant's pleadings, it will be recommended that the court deny the motion to dismiss by Defendant Vaughan-Bassett based on insufficient service of process.

As to whether service was properly effected on John Bassett, the summons and complaint were neither personally served on Bassett, nor were they served on an appointed agent authorized to receive service...