Civil Practice – Service of Process – FedEx – Presumption of Proper Service – Receptionist’s Signature

Dougherty Equipment Co. v. M.C. Precast Concrete, Inc. (Lawyers Weekly No. 11-07-0552, 12 pp.) (Donna S. Stroud, J.) Appealed from Guilford County District Court. (Angela Foster, J.) N.C. App. Click here for the full-text opinion.

Holding: Plaintiff served process on the defendant-corporation by using Federal Express to overnight the summons and complaint to the address of defendant’s registered agent. Even though the receptionist – and not the registered agent himself – signed the FedEx receipt, plaintiff was entitled to a rebuttable presumption that the receptionist was an agent of the addressee, authorized to accept service on the addressee’s behalf.

We reverse the trial court’s order, which granted defendant relief from the default judgment against it and granted defendant’s motion to dismiss for improper service.

“Before judgment by default may be had on service by registered or certified mail, signature confirmation, or by a designated delivery service authorized pursuant to 26 U.S.C.  ¤ 7502(f)(2) with delivery receipt, the serving party shall file an affidavit with the court showing proof of such service in accordance with the requirements of G.S. 1-75.10(a)(4), 1-75.10(a)(5), or 1-

75.10(a)(6), as appropriate. This affidavit together with the return receipt, copy of the proof of delivery provided by the United States Postal Service, or delivery receipt, signed by the person who received the mail or delivery if not the addressee raises a presumption that the person who received the mail or delivery and signed the receipt was an agent of the addressee authorized by appointment or by law to be served or to accept service of process or was a person of suitable age and discretion residing in the addressee’s dwelling house or usual place of abode.” N.C. R. Civ. P. 4(j2)(2).

Defendant argues that the summons can be served only on the named “addressee” because Rule 4(j)(6)(d)  provides that service should be “deliver[ed] to the addressee.” Thus, defendant contends that service was not proper as the summons and complaint was not delivered to Raymond Duchaine, as the “addressee,” but was instead delivered to Chad West, Duchaine’s receptionist. However, defendant’s argument fails to consider Rule 4(j2)(2).

Considered as a whole, Rule 4 includes comprehensive provisions for service of process, and the provisions of Rule 4(j2)(2) clearly apply to service made under any of the applicable provisions of Rule 4. Accordingly, in considering whether service was proper under Rule 4(j)(6)(d), the trial court was required to consider the presumption described in Rule 4(j2)(2).

The trial court concluded, “Whether Mr. West was authorized to receive and sign for mail or FedEx packages on behalf of Mr. Duchaine and/or Defendant … is irrelevant to this Court’s inquiry under Rule 4(j)(6)(d)[.]”  This conclusion is in direct contravention of Rule 4(j2)(2) which, when applied to these facts, raises the rebuttable presumption that West was “an agent of the addressee authorized by appointment or by law….” Rule 4(j2)(2).

While defendant contends that West was neither actually nor impliedly authorized to receive service on behalf of defendant, these are disputed facts which the trial court should have considered rather than dismissing such facts as “irrelevant.”

On remand, the trial court must consider the presumption of proper service raised by Rule 4(j2)(2), and this consideration would properly include evidence regarding West’s authority, or lack thereof, to receive mail or FedEx packages on behalf of Duchaine or defendant.

Reversed and remanded.