A trial court properly concluded that it did not have personal jurisdiction over a defendant that was never properly served with service of process, a unanimous panel of the North Carolina Court of Appeals has ruled, affirming dismissal of the action.
Gary Blaylock was hired by AKG North America in 2017. He claimed that the company fired him for repeatedly complaining about the “sexual harassment, hostile work environment and absence of supervisors attempt to resolve the issues.”
Blaylock filed his original complaint in Alamance County Superior Court on Dec. 18, 2019, with the summons issued the same day. On Dec. 23, he attempted to serve the defendant but failed when the Alamance County Sheriff returned the summons, noting that the address given for the company was in Orange County.
Over the next 12 months, Blaylock never properly served AKG.
On Jan. 17, 2020, the defendant removed the action to the Middle District of North Carolina based on federal claims alleged in the complaint. In the notice of removal before the federal court, AKG raised the issue that Blaylock had not affected service of process.
After removal, AKG sought an extension of time to answer or respond to the complaint, explaining that it had not been served by Blaylock. Blaylock responded with a motion to remand the action back to state court.
The defendant sought a second extension of time (again due to the fact it had not been served), but in a hearing before the federal court, Blaylock disavowed any reliance on federal law and the motion to remand was granted.
Blaylock mailed the complaint and summons to AKG’s litigation counsel on Aug. 5, 2020. The defendant then filed a motion to dismiss, arguing that the court lacked personal jurisdiction as service had never been properly effectuated.
The trial court granted the motion and Blaylock appealed.
In an opinion authored by Judge Darren Jackson, the panel affirmed dismissal.
“Because Defendant was never properly served with service of process and did not generally appear before the trial court, the trial court properly concluded that it did not have personal jurisdiction over Defendant and was thereby required to dismiss the action,” he wrote. “The trial court’s order is therefore affirmed.
Blaylock argued that not only was personal jurisdiction present, AKG waived its contention that jurisdiction was lacking.
Jackson disagreed. Absent valid service of process, a court does not acquire personal jurisdiction over the defendant, he explained.
“The methods for proper service of process are established by Rule 4 of the North Carolina Rules of Civil Procedure,” he said. “A corporation may be served by mail or delivery to an officer, director, managing agent, or authorized service agent.”
Rule 4 must be “strictly enforced,” he added, and “actual notice” cannot cure insufficient service of process.
Blaylock repeatedly admitted that AKG was not timely served, but claimed that AKG waived the jurisdictional argument by appearing and filing motions in court, when it removed the case to federal court and sought two extensions of time.
“We disagree with Plaintiff’s position that the filing of any motion or notice in court constitutes a waiver of service of process and consent to the court’s jurisdiction,” Jackson wrote.
If a defendant makes a “general appearance,” the trial court has personal jurisdiction, even if service of process was defective. Jackson was not persuaded that AKG’s filing for extensions of time constituted a general appearance, finding that it was expressly contradicted by N.C. Gen. Stat. § 1-75.7(1).
Removal to federal court
Considering whether the removal of the case to federal court constituted a general appearance – a matter of first impression – he reached a similar conclusion.
“In order to constitute a general appearance, ‘[t]he appearance must be for a purpose in the cause, not a collateral purpose,’” he said. “In cases where this Court has found a general appearance, typically, the lower court’s discretion was invoked by the moving party or the court’s authority was assented to without objection.”
Importantly, Jackson noted, defendants can remove a case to federal court by their own election under the federal statute if the case could have been filed in federal court to begin with, which means that “state courts do not actually exercise any discretion or adjudicatory authority in determining whether a case is removed to federal court or not. Once a defendant files a notice of removal with the state court, all further proceedings take place in federal court.”
Because the right of removal is governed by federal statute, the federal court determines if original jurisdiction has been properly established by the defendant.
“Therefore, a North Carolina trial court does not exercise any adjudicatory or discretionary power when presented with a notice of removal,” he wrote. “Consequently, filing such notice cannot constitute a ‘general appearance’ by a defendant. Because we conclude that Defendant’s filing of a notice removal was not a general appearance, we reject Plaintiff’s argument that service of process defects were waived by Defendant.”
Nor did Blaylock did not cure the defect in service by serving AKG’s litigation counsel, Jackson found.
“[E]ven assuming Defendant’s litigation counsel was a proper party upon which to effectuate service on the corporation, Plaintiff’s argument is fruitless,” he said. “Plaintiff’s second attempt to serve the original complaint to Defendant’s counsel was well beyond the time allotted to serve process or seek an extension under Rule 4(d). Therefore, Plaintiff failed to serve Defendant and then subsequently failed to cure the defective service in a timely manner.”
Raleigh attorney Zebulon D. Anderson of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, who represented the defendant, did not respond to a request for comment.
Blaylock represented himself pro se.
The 13-page decision is Blaylock v. AKG North America (Lawyers Weekly No. 011-113-22). The full text of the opinion is available online at nclawyersweekly.com.