SCOTT V. VURAL, 2023-NCCOA-________ (2023) (unpublished).
- Facts: This is a personal injury case. However, the rules for service apply to almost all civil cases. There was an automobile accident in February of 2018. In February of 2021, Plaintiffs filed a lawsuit and attempted to serve defendant by certified mail pursuant to Rule 4 of the North Carolina Rules of Civil Procedure. Plaintiffs mailed the summons and complaint to a Ridge Lane Road address in Charlotte. USPS delivered the envelope, but marked “C-19” on the return receipt, as part of the contactless delivery policy the USPS enacted during Covid. Defendant filed a motion to dismiss for failure to serve, stating that Defendant did not receive the summons and complaint, did not sign the certified mail receipt, and had not lived at the Ridge Lane Road property since May of 2018 when it was sold. Trial court granted.
- Issue: Did the trial court err in granting Defendant’s motion to dismiss?
- Holding: No.
- Rationale: If a defendant is not properly served pursuant to Rule 4, then the court lacks jurisdiction over the person and thus a dismissal should be granted. Rule 4’s service by certified mail has to be strictly complied with. Here, it meant that the certified mail be addressed to the party and delivered to the party. If delivery is by leaving copies of the summons and complaint with a person other than the party, that person must be of suitable age and discretion and lives with the named party at their usual place of abode. The C-19 on the return receipt does not show actual delivery to the named defendant. It was left with an unknown person at the Ridge Lane Road address. There is no evidence that the person it may have been left with was of suitable age and discretion. Finally, Defendant showed proof that he no longer lived at Ridge Lane Road, and thus the summons and complaint were not even left at his usual place of abode.
- Notes: Service rules can sometimes be simple. Sometimes they are more complex. While it may seem like a minor inconvenience to refile and reissue a summons to serve, the major consequence of a dismissal is potential statute of limitations issues. For some claims, there is a statute of limitations, even in the family law context (such as alienation of affections). A dismissal could mean that your claim gets time-barred. Please speak to a specialist if service is an issue in your case.