Opinion
No. COA12–184.
2012-07-3
Sharon THOMAS, Plaintiff, v. The STATE of North Carolina, North Carolina Central University, Charlie Nelms, Raymond C. Pierce, David A. Green, Letitia K. Melvin, Andria Knight, Audrey Crawford–Turner, Vanessa Gregory, Laurie Charest, and Kaye Webb, Defendants.
Sharon Thomas, pro se. Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for Defendants.
Appeal by Plaintiff from order entered 18 August 2011 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 6 June 2012. Sharon Thomas, pro se. Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for Defendants.
STEPHENS, Judge.
Plaintiff Sharon Thomas filed a complaint in Mecklenburg County Superior Court dated 18 February 2011 and an amended complaint dated 18 March 2011. Both complaints asserted claims arising from the termination of Plaintiff's employment by Defendant North Carolina Central University (“NCCU”). On 28 March 2011, NCCU and Defendants the State of North Carolina (“the State”), Charlie Nelms, Raymond C. Pierce, David A. Green, Letitia K. Melvin, Andria Knight, Vanessa Gregory, Audrey Crawford–Turner, Jerome Goodwin, Laurie Charest, and Kaye Webb moved to dismiss Plaintiff's amended complaint pursuant to Rule 12(b)(2), (4), (5), and (6) of the North Carolina Rules of Civil Procedure and for abatement of Plaintiff's state action due to a prior pending action in federal court.
Defendant Jerome Goodwin is named in the complaint and amended complaint, but his name does not appear in the caption of any of Defendants' motions, in the trial court's order, or in Plaintiff's notice of appeal. These omissions appear to be clerical errors.
Each “natural person” Defendant appears to be employed by or otherwise affiliated with NCCU and/or its School of Law.
Following a 17 August 2011 hearing, on 18 August 2011, the trial court discontinued claims against all Defendants except the State for insufficiency of service of process. The court abated and removed from the docket Plaintiff's claims against the State based on Plaintiff's prior pending action in the United States District Court for the Middle District of North Carolina. Plaintiff appeals, arguing that the trial court erred in (1) discontinuing claims against all Defendants other than the State for insufficiency of service of process and (2) entering an order of abatement as to the claims against the State. As discussed herein, we affirm.
Discontinuance of Claims Against Defendants Other than the State
Plaintiff first argues that the trial court erred in discontinuing claims against all Defendants other than the State for insufficiency of service of process. We disagree.
“[P]rocess must be issued and served in the manner prescribed by statute, and failure to do so makes the service invalid....” Roshelli v. Sperry, 57 N.C.App. 305, 307, 291 S.E.2d 355, 356 (1982). Without valid service, the trial court lacks jurisdiction over the defendant and must discontinue the matter. Dozier v. Crandall, 105 N.C.App. 74, 75–76, 411 S.E.2d 635, 636,disc. review denied as improvidently allowed,332 N.C. 480, 420 S.E.2d 826 (1992). Service of process is governed by Rule 4 of our Rules of Civil Procedure. Subsection j of Rule 4 provides specific separate provisions for serving various categories of defendants, including the State, agencies of the State (such as NCCU), and natural persons (such as the remaining Defendants in this case). N.C. Gen.Stat. § 1A–1, Rule 4(j) (2011). While the State may be served “by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the Attorney General [,]” N.C. Gen.Stat. § 1A–1, Rule 4(j)(3), agencies of the State and natural persons may not be served by mailing process to the Attorney General. N.C. Gen.Stat. § 1A–1, Rule 4(j)(1), (4).
If an agency of the State fails to comply with the statutory requirement of appointing a process agent, service can be made via mail to the Attorney General. SeeN.C. Gen.Stat. § 1A–1, Rule 4(c). However, Defendant NCCU, an agency of the State, has an appointed process agent.
Here, Plaintiff obtained summonses when she filed her original complaint and again when she filed her amended complaint. Plaintiff concedes that she served copies of the complaint and summonses for all Defendants by certified mail to “the North Carolina Department of Justice, Attention of Attorney General Roy Cooper.” Plaintiff having failed to properly serve NCCU and the natural persons named as defendants in her amended complaint, the trial court lacked jurisdiction over them and had no choice other than to discontinue the matter. Accordingly, we overrule Plaintiff's argument and affirm the order discontinuing her claims against all Defendants other than the State.
Abatement of Claims Against the State
Plaintiff also argues that the trial court erred in abating her claims against the State. For the reasons discussed below, we affirm.
Where a prior action is pending in a federal court within the boundaries of North Carolina which raises substantially the same issues between substantially the same parties as a subsequent action within the state court system having concurrent jurisdiction, the subsequent action is wholly unnecessary and, in the interests of judicial economy, should be subject to a plea in abatement.
Eways v. Governor's Island, 326 N.C. 552, 560–61, 391 S.E.2d 182, 187 (1990). “The ordinary test for determining whether or not the parties and causes are the same for the purpose of abatement by reason of the pendency of the prior action is this: Do the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded?” Cameron v. Cameron, 235 N.C. 82, 85, 68 S.E.2d 796, 798 (1952).
Plaintiff's entire argument on this point is as follows:
[ ]Plaintiff clearly stated federal claims, the Superior Court Judge does not have jurisdiction to dismiss federal claims whether pending or otherwise [sic]. The attorney for [D]efendants completed a motion to dismiss the prior claims and [ ]Plaintiff completed a motion to amend the prior claims both motions are still pending [sic]. Abatement of this civil action denied [ ]Plaintiff equal protection under the U.S. 14th amendment and to abate a[sic] appealable federal claims in a local superior [sic] is not in the interest of justice.
Plaintiff's contentions are unclear. However, we have reviewed the record on appeal in an attempt to determine whether abatement of Plaintiff's claims against the State was erroneous.
Plaintiff filed a civil complaint in the United States District Court for the Middle District of North Carolina in August 2009. Although there is substantial overlap between the defendants named in the federal action and those named in the state action here, the State is not a named defendant in the federal action. Further, there are at least eight additional defendants named in Plaintiff's federal lawsuit who are not named in the state action and, although both complaints do appear to be based on similar factual allegations regarding the termination of Plaintiff's employment, there appears to be at least one additional claim in the federal matter. These differences could indicate a lack of “substantial identity as to parties, subject matter, issues involved, and relief demanded[.]” Id.
Both complaints were filed pro se and are difficult to follow.
However, Plaintiff's amended complaint in this matter makes no factual allegations of wrongdoing (or of any actions whatsoever) by the State. As such, as to the State, the sole remaining Defendant, Plaintiff's complaint fails to state a claim upon which relief can be granted. Thus, Plaintiff's complaint could have been dismissed on the State's Rule 12(b)(6) motion. N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) (2011). “Where a trial court has reached the correct result, the judgment will not be disturbed on appeal even where a different reason is assigned to the decision.” Eways, 326 N.C. at 554, 391 S.E.2d at 183 (affirming the trial court's dismissal for lack of subject matter jurisdiction, although the appellate court based its reasoning on the doctrine of prior action pending).
AFFIRMED. Judges HUNTER, JR., ROBERT N., and McCULLOUGH concur.
Report per Rule 30(e).