Shreve v. Officer Wolfe (2612)

KIMBERLY SHREVE, Plaintiff, v. OFFICER WOLFE (2612), Defendant.

No. 5:21-CV-98-BO

United States District Court, E.D. North Carolina, Western Division

August 26, 2021

ORDER

TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.

This cause conies before the Court on plaintiffs motion for entry of default and motions for default judgment and defendant's motion to dismiss for lack of jurisdiction. For the following reasons, plaintiffs motions are denied and defendant's motion is granted.

BACKGROUND

On January 17, 2003, defendant Officer Wolfe, an officer with the City of Raleigh police, allegedly charged plaintiff with mental commitment and took her to Wake County jail. Plaintiff brought claims against defendant in this Court, and United States District Judge Louise W. Flanagan dismissed her claims as time-barred. On February 26, 2021, plaintiff filed the instant lawsuit asserting claims against defendant for false arrest under 42 U.S.C. § 1983 and perjury under 18 U.S.C. § 1621. On May 19, 2021, plaintiff filed a motion for default judgment, to which defendant responded in opposition. Defendant moved to dismiss the case on June 4 2021. Plaintiff has subsequently filed a motion for entry of default and two additional motions for default judgment.

DISCUSSION

Motions for Entry of Default and Default Judgment

Plaintiff has filed one motion for entry of default and three motions for default judgment. Because default judgment may not be considered prior to the entry of default, the Court construes plaintiffs pro se motions for default judgment as motions requesting entry of default pursuant to Fed.R.Civ.P. 55(a). An entry of default is proper “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” Fed.R.Civ.P. 55(a). However “effective service of process on a defendant must be accomplished as a prerequisite for entry of default against that defendant.” Henderson v. L.A. Cty., No 5:13-CV-635-FL, 2013 U.S. Dist. LEXIS 170928, at *2-3 (E.D N.C. Dec. 3, 2013). Unless service is waived, the server must provide proof of service by affidavit. Fed.R.Civ.P. 4(1)(1); see also N.C. Gen. Stat. § 1A-1, Rule 4(j2)(2) (“Before judgment by default may be had on service by registered or certified mail... the serving party shall file an affidavit with the court showing proof of such service.”). Such an affidavit, filed along with the return receipt, “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.” Id. This presumption of valid service may be rebutted “with' affidavits of more than one person showing unequivocally that proper service was not made upon the person of the defendant.'” Godfrey v. Long, No. 5:10-CT-3105-B0, 2012 U.S. Dist. LEXIS 2671, at *14 (E.D. N.C. Jan. 9, 2012), aff'd, 472 Fed.Appx. 174 (4th Cir. 2012) (quoting Grimsley v. Nelson, 342 N.C. 542, 545 (1996)).

Here, plaintiffs court filings fail to raise a presumption of valid service. Plaintiff has not filed an affidavit or declaration under penalty of perjury showing that she served defendant as required. Instead, plaintiff relies only on unsworn statements that defendant was served with process. She has also failed to comply with the requirement that a signed receipt or other documentation be filed indicating that a summons and complaint were delivered to defendant or an agent of defendant authorized to receive process. N.C. Gen. Stat. §§ l-75.10(a)(4)(b)-(c). Therefore, the Court finds that it is appropriate to deny plaintiffs motions based on her failure to present any evidence that defendant has been properly served.

Even assuming plaintiffs court filings did raise a presumption of valid service, the declarations of defendant and Officer Morrow rebut this presumption. As discussed below, these declarations establish that defendant has not been properly served, and plaintiff has presented no evidence that would rebut defendant's affidavit. See Kirby v. North Carolina, No. 5:20-CV-344-BO, 2021 U.S. Dist. LEXIS 7939, at *4 (E.D. N.C. Jan. 15, 2021) (denying plaintiffs motion for entry of default against defendant because plaintiff “failed to come forward with any evidence which would rebut defendant's affidavit and establish that service had been properly effected.”). Therefore, the motions must also be dismissed because defendant has rebutted the presumption of service.

Motion to Dismiss

1. Lack of Personal Jurisdiction, Insufficient Process, and Insufficient Service of Process

Defendant has first moved to dismiss this action in its entirety with prejudice pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction, Rule 12(b)(4) for insufficient process, and Rule 12(b)(5) for insufficient service of process. For the Court to acquire jurisdiction over a party, service must comply with North Carolina's statutes and Rules of Civil Procedure. Patton v. Vogel, 833 S.E.2d 198, 201 (N.C. App. 2019). “A plaintiff has the burden to show that she effected service of process properly and that the court has personal jurisdiction over all defendants.” Saimplice v. Ocwen Loan Servicing Inc., 368 F.Supp.3d 858, 865 (E.D. N.C. 2019). Process consists of a summons and a copy of the complaint, Fed.R.Civ.P. 4(c)(1); N.C. Gen. Stat. § 1 A-l, Rule 4(j)(1)(c), and “[s]ervice of a partial complaint is insufficient ” Cherry v. Spence, 249 F.R.D. 226, 229 (E.D N.C. 2008). Process must be served within ninety days after the complaint is filed in the Court. Fed.R.Civ.P. 4(m). A defendant knowing about a lawsuit, or moving to dismiss it, does not mean a plaintiff effected proper service or excuse plaintiff of complying with the service requirement. Pitts v. O 'Geary, 914 F.Supp.2d 729, 734 (E.D. N.C. 2012).

When a plaintiff has brought claims against defendant in both his individual and official capacities, he must serve him in both capacities. See Richardson v. Roberts, 355 F.Supp.3d 367, 370 (E.D. N.C. 2019). A suit against a government employee in his official capacity is, ostensibly, an additional attempt to assert a claim against his employer. Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Official-capacity suits ... ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.'”) (quoting Monell v. N.Y.C. Dep't of Soc.Servs., 436 U.S. 658, 690 n.55). Service against a defendant in his official capacity is, “in all respects other than name, to be treated as a suit against the entity, ” and the government entity must receive notice and an opportunity to respond. Williams v. Guilford Tech. Cmty. Coll. Bd. of Trs., 117 F.Supp.3d 708, 715 (M.D. N.C. 2015) (quoting Graham, 473 U.S. at 167 (1985)); see also Burke v. Hill, No. 2:17-CV-1-FL, 2017 U.S. Dist. LEXIS 180041, at *9 (E.D. N.C. 2017). Service upon a municipality is governed by Rule 4(j)(2) of the Federal Rules of Civil Procedure, which provides that service may be effected by “delivering a copy of the summons and of the complaint to its chief executive officer” or by serving the summons and complaint “in the manner prescribed by that state's law for serving a summons or like process on such a defendant.”

Service against a defendant in his individual capacity may be made by following state law, delivering a copy of the summons and complaint to the individual personally, leaving a copy at the individual's usual place of abode with a resident of suitable age and discretion, or delivering a copy to an agent authorized to receive process. Fed.R.Civ.P. 4(e). The North Carolina Rules of Civil Procedure allow service upon an individual through one of the following ways:

a. By delivering a copy of the summons and of the complaint to the natural person or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.

b. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process

or by serving process upon such agent or the party in a manner specified by any statute.

c. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.

d. By depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the party to be served, delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, "delivery receipt" includes an electronic or facsimile receipt.

e. By mailing a copy of the summons and of the complaint by signature confirmation as provided by the United States Postal Service, addressed to the party to be served, and delivering to the addressee.

N.C. G.S. § 1 A-1, Rule 4(j)(1). “Service of process cannot be effected upon Defendant by serving at his place of employment individuals who are not authorized to accept service of process.” Watson v. Jiffy Lube Lube Core, No. 5:10-CV-00572-F, 2011 U.S. Dist. LEXIS 63468, at *5 (E.D. N.C. June 15, 2011) (quoting Elkins v. Broome, 213 F.R.D. 273, 276 (M.D. N.C. 2003)).

Here to the extent that plaintiffs claims could be construed as claims against defendant in his official capacity as a City of Raleigh police officer, plaintiff is required to serve process on defendant in both his individual and official capacities. The declarations of defendant and Officer Morrow establish that an envelope was delivered to the Raleigh Police Department (RPD)...