Civil Practice – Service of Process – Designated Delivery Service – FedEx — Natural Persons – ‘In Fact Received’ – Municipal – City Attorney

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Washington v. Cline (Lawyers Weekly No. 13-07-1087, 24 pp.) (Robert C. Hunter, J.) Appealed from Durham County Superior Court (W. Osmond Smith III, J.) N.C. App.

Holding: Even though FedEx left defendants’ summonses and complaints with other people (or at the door), since defendants “in fact received” the summonses and complaints, service was effective under N.C. R. Civ. P. 4(j)(1)(d).

We reverse the trial court’s order granting the defendant-individual appellees’ motions to dismiss for insufficient service of process. We affirm the trial court’s order denying defendant Baker’s motion to dismiss for insufficient service of process. We affirm the trial court’s order granting the defendant-city’s motion to dismiss for insufficient service of process, and we affirm the trial court’s denial of plaintiff’s motion to amend the summons against the city.

Estoppel

Although defendants received extensions of time to answer, they explicitly stated that the reason for the extensions was to “determine whether any Rule 12 or other defenses [were] appropriate.” Defendant-appellees’ and Baker’s motions to dismiss for insufficient service of process were based on N.C. R. Civ. P. 12(b)(5); therefore, plaintiff had notice that such motions could be filed. Furthermore, defendants served plaintiffs with their defenses four days before the last day in which plaintiffs could have obtained extensions of the summonses. Defendants are not estopped from asserting the defense of insufficient service of process.

Natural Persons

G.S. Chap. 1, Art. 6A, which contains § 1-75.10, “shall be liberally construed to the end that actions be speedily and finally determined on their merits. The rule that statutes in derogation of the common law must be strictly construed does not apply to this Article.” G.S. § 1-75.1.

The plain language of § 1-75.10 allows a plaintiff to prove service by designated delivery service with evidence that copies of the summons and complaint were “in fact received” by the addressee, not evidence that the delivery service agent personally served the individual addressee. Therefore, the crucial inquiry is whether addressees received the summons and complaint, not who physically handed the summons and complaint to the addressee.

The fact that the legislature failed to include a personal delivery requirement in Rule 4(j)(1)(d) when it did so in other subsections throughout the statute indicates its intention to exclude it.

Plaintiffs provided sufficient evidence in the form of delivery receipts and affidavits pursuant to § 1-75.10 to prove that all defendant-appellees except the city were properly served under Rule 4(j)(1)(d). Based on these facts, the trial court’s conclusion that plaintiffs failed to properly serve defendant-appellees (except the city) was in error. Therefore its order dismissing all defendant-appellees except the city is reversed.

The trial court did not err in denying Baker’s motion to dismiss for insufficient service of process because he, like the other defendant-appellees, was properly served as a natural person under Rule 4(j)(1)(d) and plaintiffs properly proved service under § 1.75-10.

The City

Service upon anyone other than the mayor, city manager, or clerk is insufficient to confer jurisdiction over a city. N.C. R. Civ. P. 4(j)(5)(a).

Here, the summons and complaint were addressed to Patrick Baker, who was the city attorney. There is no direct evidence that the city’s mayor, manager or clerk ever received a copy of the summons and complaint or were otherwise served in any way. Furthermore, although defective service of process may give the defending party actual notice of the proceedings, such actual notice does not give the court jurisdiction over the party.

Service on the city was defective, so the trial court did not err in granting the city’s motion to dismiss for insufficient service of process.

The trial court did not abuse its discretion when it denied plaintiff’s motion to amend the summons against the city. Carl Rose & Sons, Ready Mix Concrete, Inc. v. Thorp Sales Corp., 30 N.C. App. 526, 227 S.E.2d 301 (1976), overruled on other grounds, Wiles v. Welparnel Const. Co., 295 N.C. 81, 243 S.E.2d 756 (1978).

Affirmed in part and reversed in part.