Opinion
No. 5:17-CV-634-H
01-04-2019
BENJAMIN MCKINLEY HUBBARD, Plaintiff, v. UNITED PARCEL SERVICES, INC., Defendant.
MEMORANDUM & RECOMMENDATION
On its own motion, the court has decided to reconsider the Memorandum and Recommendation filed October 16, 2018, in which it was recommended that this action be dismissed pursuant to Rule 4(m) for failure to file proof that service has been made upon Defendant or, alternatively, for failure to prosecute or to comply with this court's prior orders. For the reasons set forth below, the court reaffirms its prior recommendation that the action be dismissed.
DISCUSSION
Plaintiff filed this action on December 27, 2017, but failed to timely file proof of service as required by Rule 4(m) of the Federal Rules of Civil Procedure. The court twice extended Plaintiff's deadline for service, in both instances after the clerk notified Plaintiff that his time to effect service had expired. The last extension order, entered August 27, 2018, determined that Plaintiff had failed to demonstrate good cause "why, despite the passage of eight months from the filing of this action, Plaintiff has been unable to serve his prior employer." (Aug. 27, 2018, Order [DE #15].) Nevertheless, the court, in its discretion, granted one final extension of time, through September 28, 2018, for Plaintiff to serve Defendant. Plaintiff was warned that failure to effect service by September 28, 2018, may result in dismissal of his claims pursuant to Rule 4(m) or for failure to prosecute or to comply with this court's orders.
On October 16, 2018, a Memorandum and Recommendation was submitted in which it was noted that Plaintiff had not filed proof of service upon Defendant and his deadline (twice extended) had expired. (Oct. 16, 2018, Mem. & Recommendation [DE #16].) Accordingly, the undersigned recommended that the action be dismissed pursuant to Rule 4(m) or for failure to prosecute or to comply with the court's prior orders directing Plaintiff to file proof that Defendant had been served. (Id. at 1.) Plaintiff was advised that he had until November 2, 2018, to file written objections to the Memorandum and Recommendation. (Id.at 2.)
Plaintiff did not file any written objections or otherwise provide any explanation for why the court should not dismiss the action. Instead, on October 23, 2018, Plaintiff filed a return of service signed by Deputy T. Clodfelter of the Wake County Sheriff's Office indicating he had served a summons addressed to United Parcel Service, Inc., upon "Matt Bristow, who is designated by law to accept service of process on behalf of United Parcel Service, Inc. on 9/27/18." (Return of Service [DE#17] at 2.)
On December 21, 2018, Defendant United Parcel Service, Inc. (UPS) made a limited appearance, through counsel, for the purpose of disputing the sufficiency of service upon UPS. (Notice Ltd. Appearance [DE #18].) In a declaration made under penalty of perjury, Matthew Bristow states that he is employed by UPS as a Human Resources Supervisor at UPS' human resources building located at 4101 Atlantic Avenue, Raleigh, North Carolina. (Decl. Matthew Bristow [DE #19-1] ¶2.) Mr. Bristow avers that he is not an officer or director of UPS, does not manage or supervise any operations of UPS, is not an agent registered to accept service of process on behalf of UPS, and has never been authorized by UPS to accept court papers on its behalf (Bristow Decl. ¶¶ 3, 6.) He recalls that an individual identifying himself as a Wake County Deputy Sheriff came to the UPS human resources building in late September 2018 and that he was called to the front desk to speak with the deputy. (Bristow Decl. ¶ 5.) The deputy gave Mr. Bristow some papers and asked him for his name and business card, which Mr. Bristow provided. (Id.) Mr. Bristow never told the deputy he was authorized to accept service of any papers on behalf of UPS. (Id.) Mr. Bristow declares that a true and correct copy of the papers he received from the deputy are attached to his declaration. (Id.) Attached to Mr. Bristow's declaration are copies of a summons, notice of self-representation, financial disclosure, and what appears to be a one-page typewritten and signed statement of alleged facts underlying Plaintiff's claims which, except for the signature, appears identical to page five of Plaintiff's complaint. (See Compl. [DE #1] at 5.) Notably, the papers attached to Mr. Bristow's declaration do not include pages one through four, six or seven of Plaintiff's complaint.
"A plaintiff bears the burden of showing that the service of process, and the process itself, complies with the requirements set forth in Rule 4 of the Federal Rules of Civil Procedure." Brissett v. Freemont Inv. & Loan Corp., No. 4:08-CV-77-F, 2010 WL 3003361, at *2 (E.D.N.C. July 29, 2010). "Absent waiver or consent, a failure to obtain proper service on the defendant deprives the court of personal jurisdiction over the defendant." Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998).
Rule 4 requires that a summons and copy of the complaint be served upon each named defendant. Fed. R. Civ. P. 4(c)(1). Rule 4(h) governs service upon a corporate defendant. Under Rule 4(h), proper service may be made by following state law for service "in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made" or upon "an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process." Fed. R. Civ. P. 4(e), (h). Under applicable North Carolina law, service may be made upon a corporation by "registered or certified mail, return receipt requested, addressed to the officer, director, or agent" authorized by appointment or by law to be served or to accept service of process on its behalf, N.C.R. Civ. P. 4(j)(6)(c), or by delivery by "a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2)" to an officer, director, or authorized agent, N.C.R. Civ. P. 4(j)(6)(d).
Plaintiff's attempt to serve UPS, as evidenced by the return of service filed October 23, 2018, is deficient in a number of respects. First, the summons is addressed to "United Parcel Service, Inc." and does not name an officer, director, or agent of UPS. Second, the evidence submitted by UPS demonstrates that the individual upon whom delivery was made (Matthew Bristow) is not an officer, director, or managing or general agent of UPS and has not been authorized by appointment or by law to accept service of process on behalf of UPS. Third, a complete copy of Plaintiff's complaint was not included in the materials provided to Matthew Bristow.
Records maintained by the North Carolina Secretary of State, Corporations Division, of which the court takes judicial notice, reflect that the agent registered to accept service of process on behalf of United Parcel Service, Inc., is Corporation Service Company. See https://www.sosnc.gov/online_services/search/by_title/_Business_Registration (search "Search For:" for "United Parcel Service, Inc.") (last visited Jan. 3, 2019).
"Service [of process] rules are structed to ensure due process and uniformity in the application of procedures which alert those receiving a corporation's mail that the enclosed lawsuit demands prompt attention." Shaver v. Cooleemee Vol. Fire Dep't, No. 1:07-CV-175, 2008 WL 942560, at *2 (M.D.N.C. Apr. 7, 2008). While pro se litigants are allowed more latitude than represented parties with respect to the maintenance of their suits, service of process rules apply with equal force to represented and unrepresented litigants, and courts should not overlook such procedural deficiencies, even if a defendant has actual notice of the suit. See id.
In this case, Plaintiff was given numerous opportunities to effect service upon UPS. Twice the court extended Plaintiff's service deadline. In each instance, Plaintiff had allowed the time for service to expire and requested an extension only after the clerk informed him that his time for service had expired. The second extension was granted in the court's discretion in light of Plaintiff's pro se status, the court having determined that Plaintiff good cause had not been shown for an extension. This action was filed over a year ago, and Plaintiff has yet to demonstrate that proper service has been made upon UPS. On October 16, 2018, the undersigned recommended that the action be dismissed due to Plaintiff's failure to comply with Rule 4(m) and this court's orders, as well as for failure to prosecute. Plaintiff has not objected to the recommended dismissal, nor has he submitted any explanation for his failure to follow the rules governing service or the court's prior orders.
CONCLUSION
Upon reconsideration of the Memorandum and Recommendation filed October 16, 2018, in light of evidence subsequently presented in this case and for the foregoing reasons, it is RECOMMENDED that this action be dismissed pursuant to Rule 4(m) or for failure to prosecute or to comply with this court's prior orders.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. Plaintiff is hereby advised as follows:
You shall have until January 21, 2019, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b) (E.D.N.C. Jan. 2019).
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 4th day of January 2019.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge