Process and Service--statutory presumption of valid service--failure to rebut
The trial court erred in an action for damages arising out of a motor vehicle accident by
granting defendant's motion to dismiss based on insufficient service of the civil summons and
complaint, because: (1) by filing a copy of the signed return receipt along with an affidavit that
comports with N.C.G.S. § 1-75.10, plaintiff is entitled to a rebuttable presumption of valid
service; and (2) defendant's single affidavit does not rebut the presumption when he merely
states that he had not resided at the address to which service was addressed since 2002 and he
does not state or otherwise present any evidence that his mother, who signed for the civil
summons and complaint, was not authorized to accept service for him.
Judge GEER concurring.
Cerwin Law Firm, by Todd R. Cerwin, for plaintiff-appellant.
Dean and Gibson, LLP, by Rodney Dean, for defendant-appellee
Stephen Reed Agee.
McGEE, Judge.
Gary Carpenter (plaintiff) appeals from an order entered 9
February 2004 and amended 18 February 2004 granting defendant
Stephen Reed Agee's motion to dismiss. Defendant Davis Transport,
Inc. (Davis) is no longer a party to this action, pursuant to
plaintiff's voluntary dismissal of his claims against Davis filed
on 16 December 2003.
Plaintiff filed a complaint on 4 March 2003 seeking damagesfor injuries he sustained in a motor vehicle collision on 21 August
2000, that he alleged were caused by the negligence of Stephen Reed
Agee (defendant). The civil summons and complaint were addressed
to defendant by certified mail, return receipt requested, at an
address in San Bernadino, California. The return receipt was
signed by defendant's mother, Dixie Agee, at the same address, on
12 March 2003. Plaintiff filed an affidavit of service by
certified mail and a copy of the signed return receipt on 25 March
2003. The affidavit averred that a copy of the civil summons and
complaint was mailed by certified mail, return receipt requested,
and that it was so received on 12 March 2003.
Defendant filed an answer to the complaint on 9 May 2003.
Along with his answer, defendant served plaintiff with defendant's
first set of interrogatories and request for the production of
documents. Plaintiff served defendant with plaintiff's first set
of interrogatories on 22 September 2003, to which defendant
responded on 9 December 2003.
Defendant filed a motion to dismiss and an affidavit on 16
January 2004, claiming that he was never properly served with the
civil summons and complaint. In his affidavit, defendant stated
that although defendant's mother resided at the address where the
civil summons and complaint were mailed, defendant had not resided
at that address since 2002. The trial court granted defendant's
motion to dismiss in an order entered 9 February 2004 and amended
18 February 2004.
Plaintiff contends that the trial court erred in grantingdefendant's motion to dismiss because plaintiff properly served
defendant with the civil summons and complaint. Plaintiff argues
that plaintiff's affidavit of service by certified mail, coupled
with a copy of the signed return receipt, created a presumption of
valid service that defendant has failed to rebut.
Rule 4(j)(1)(c) of our Rules of Civil Procedure permit service
by certified mail "[b]y mailing a copy of the summons and of the
complaint, . . . return receipt requested, addressed to the party
to be served, and delivering to the addressee." N.C. Gen. Stat. §
1A-1, Rule 4(j)(1)(c) (2003). Once service by certified mail is
complete, the serving party may make proof of service by filing an
affidavit in accordance with N.C. Gen. Stat. § 1-75.10. N.C. Gen.
Stat. § 1A-1, Rule 4(j2)(2) (2003). Under N.C. Gen. Stat. § 1-
75.10 (2003), the affidavit must aver:
a. That a copy of the summons and complaint was
deposited in the post office for mailing by
registered or certified mail, return receipt
requested;
b. That it was in fact received as evidenced by
the attached registry receipt or other
evidence satisfactory to the court of delivery
to the addressee; and
c. That the genuine receipt or other evidence of
delivery is attached.
Such an affidavit, filed along with a return receipt signed by
the individual who received the mail, "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[.]" N.C. Gen. Stat.
§ 1A-1, Rule 4(j2)(2); see also Granville Med. Ctr. v. Tipton, 160N.C. App. 484, 490-91, 586 S.E.2d 791, 796 (2003); Fender v.
Deaton, 130 N.C. App. 657, 663, 503 S.E.2d 707, 710 (1998), disc.
review denied, 350 N.C. 94, 527 S.E.2d 666 (1999); Steffey v. Mazza
Construction Group, 113 N.C. App. 538, 540-41, 439 S.E.2d 241, 243
(1994), disc. review improvidently allowed, 339 N.C. 734, 455
S.E.2d 155 (1995).
By filing a copy of the signed return receipt, along with an
affidavit that comports with N.C. Gen. Stat. § 1-75.10, plaintiff
is entitled to a rebuttable presumption of valid service. We find
that defendant's single affidavit does not rebut the presumption in
this case. In his affidavit, defendant merely asserts that he had
not resided at the address to which service was addressed since
2002. However, defendant does not state or otherwise present any
evidence that Dixie Agee, who signed for the civil summons and
complaint, was not authorized to accept service for him. In the
absence of such evidence, defendant has failed to rebut the
statutory presumption of valid service. We therefore conclude that
the Rule 4 requirements of service of process were met, and we
reverse the trial court's order granting defendant's motion to
dismiss.
Since this issue is dispositive of this case on appeal, we
need not address plaintiff's remaining assignments of error.
Reversed.
Judge TYSON concurs.
Judge GEER concurs in the result with a separate opinion.
GEER, Judge, concurring in the result.
I agree with the majority that the trial court improperly
granted defendant's motion to dismiss based on insufficient
service. Because, however, I believe that defendant waived this
defense, I concur in the result only.
Rule 12(h)(1) of the Rules of Civil Procedure provides: "A
defense of . . . insufficiency of service of process is waived (i)
if omitted from a motion in the circumstances described in section
(g), or (ii) if it is neither made by motion under this rule nor
included in a responsive pleading or an amendment thereof permitted
by Rule 15(a) to be made as a matter of course." Defendant filed
no initial motion to dismiss, but rather relied upon his answer to
assert his defenses. I believe the dispositive question for this
appeal is whether defendant's answer waived the defense of
insufficiency of process.
Plaintiff and defendant were involved in an accident on 21
August 2000. Accordingly, the statute of limitations ran on 21
August 2003. Plaintiff filed his complaint on 4 March 2003 and on
25 March 2003 filed an affidavit of service indicating that the
complaint had been received on 12 March 2003. On 2 April 2003,
defendant moved for an extension of his time to respond to the
complaint until 12 May 2003. On 8 May 2003, defendant served his
answer, interrogatories, and a request for amount of monetary
relief sought.
Defendant's answer specifically raised the defenses of
contributory negligence and the failure to state a claim forrelief. In addition, defendant's answer included a catch-all
fourth defense: "The Defendants plead all of the defenses set
forth in Rule 12(b) of the North Carolina Rules of Civil Procedure.
This Answer is subject to all said defenses and is specifically
made without waiving any defense set forth in Rule 12(b) which is
incorporated by reference." The answer never specifically
mentioned the defense of insufficiency of service of process. Nor
did defendant ever amend his answer to add that defense. Defendant
did not explicitly raise any inadequacy of service until he filed
his motion to dismiss on 16 January 2004.
Defendant cites no authority supporting his contention that
his broadside defense incorporating by reference all of the
defenses under Rule 12(b) is sufficient to avoid waiver under Rule
12(h)(1). I have been unable to find any such authority from this
State, from the federal courts, or from any other state's courts.
This absence of authority is hardly surprising given the plain
language of North Carolina's Rules of Civil Procedure, which are
substantially similar to the Federal Rules of Civil Procedure on
this issue.
Rule 8(b) provides that "[a] party shall state in short and
plain terms his defenses to each claim asserted and shall admit or
deny the averments upon which the adverse party relies." Defendant
contends that "it would be difficult to have a much more plain and
concise statement than was raised by the Defendant in this Answer,
which specifically incorporated Rule 12(b) defenses by reference."
I do not agree that the fourth defense is either plain or concise.While Rule 8(b) does "carr[y] the theme of notice pleading over
into responsive pleadings and defenses as well," 1 Gray Wilson,
North Carolina Civil Procedure § 8-4, at 137 (2d ed. 1995),
defendant has overlooked the "notice" part of "notice pleading."
Defendant's catch-all paragraph incorporating seven possible
defenses _ including one, Rule 12(b)(6), already listed as
defendant's third defense _ hardly provided notice that defendant
intended to challenge the sufficiency of service.
This Court has recently held that "[p]ursuant to Rule 12(h)(1)
of the North Carolina Rules of Civil Procedure, defenses arising
under Rule 12(b)(4) and 12(b)(5) must be affirmatively plead in a
party's responsive pleadings, or are deemed thereafter waived."
Lane v. Winn-Dixie Charlotte, Inc., __ N.C. App. __, __, 609 S.E.2d
456, 459 (2005) (emphasis added). Under Rule 8(c), defenses
"constituting an avoidance or affirmative defense" must similarly
be "affirmatively" set forth or are waived. Duke Univ. v. St. Paul
Mercury Ins. Co., 95 N.C. App. 663, 673, 384 S.E.2d 36, 42 (1989)
(affirmative defense must be pled "with certainty and
particularity"; a failure to do so "ordinarily results in its
waiver"). Rule 8(c) explains what is required to affirmatively
plead a defense: "Such pleading shall contain a short and plain
statement of any matter constituting an avoidance or affirmative
defense sufficiently particular to give the court and the parties
notice of the transactions, occurrences, or series of transactions
or occurrences, intended to be proved."
No one would suggest, in light of this requirement, that abald assertion in an answer that the defendant was incorporating by
reference all of the affirmative defenses listed in Rule 8(c) was
sufficient to avoid waiver of one of the defenses included in that
rule. See 5 Charles Alan Wright et al., Federal Practice and
Procedure § 1274, at 617 (3d ed. 2004) (although an affirmative
defense may be pled in general terms it must give the plaintiff
"fair notice of the nature of the defense"). Yet, defendant's
wholesale incorporation of Rule 12(b) is logically no different.
There is no reasonable rationale for requiring less specificity in
pleading for Rule 12(b) defenses than for Rule 8(c) affirmative
defenses, especially in light of Rule 12(b) and (h)'s purpose of
ensuring that defenses specified in Rule 12 are resolved at an
early stage in the litigation. Less specificity leads to delay in
resolution.
This Court has also held that a defendant "fulfills his
obligation to inform the court and his opponent of possible
jurisdictional defects" when he "has alerted the opponent and given
him the opportunity to cure any jurisdictional defect from the
outset." Ryals v. Hall-Lane Moving & Storage Co., 122 N.C. App.
242, 248, 468 S.E.2d 600, 604, disc. review denied, 343 N.C. 514,
472 S.E.2d 19 (1996). I would hold that because defendant's answer
never mentions Rule 12(b)(5) or the sufficiency of the service of
process and because defendant's motion to dismiss specifically
raising this defense was filed eight months after the answer and
five months after the statute of limitations ran _ thereby denying
plaintiff any opportunity to cure any deficiency _ defendant waivedthe defense under Rule 12(h)(1). See also Santos v. State Farm
Fire & Cas. Co., 902 F.2d 1092, 1096 (2d Cir. 1990) (defense of
insufficiency of service waived despite answer's assertion of a
lack of personal jurisdiction because: "[The defendant] did
nothing to alert [the plaintiff] promptly that its lack-of-
jurisdiction claim was in fact a contention that service of process
was insufficient. . . . A defendant cannot justly be allowed to
lie in wait, masking by misnomer its contention that service of
process has been insufficient, and then obtain a dismissal on that
ground only after the statute of limitations has run, thereby
depriving the plaintiff of the opportunity to cure the service
defect.").
My conclusion is further supported by Rule 10(b) of the Rules
of Civil Procedure, which provides that "[a]ll averments of claim
or defense shall be made in numbered paragraphs, the contents of
each of which be [sic] limited as far as practicable to a statement
of a single set of circumstances . . . . [E]ach defense other than
denials shall be stated in a separate . . . defense whenever a
separation facilitates the clear presentation of the matters set
forth." Because of the nature of the Rule 12(b) defenses _ which
rarely overlap _ I believe that "the clear presentation" of the
defenses requires that each defense be set forth separately.
(See footnote 1)
Finally, I note that a catch-all defense such as the onerelied upon here raises Rule 11 concerns. See Mary Ann Pensiero,
Inc. v. Lingle, 847 F.2d 90, 97 (3d Cir. 1988) (holding that "the
practice of 'throwing in the kitchen sink' at times may be so
abusive as to merit Rule 11 condemnation," but finding no Rule 11
violation in that case). Under Rule 11(a), the attorney's
signature on the answer "constitutes a certificate by him . . .
that to the best of his knowledge, information, and belief formed
after reasonable inquiry it is well grounded in fact and is
warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law . . . ." A
defense that broadly incorporates by reference all of the defenses
contained in Rule 12(b) without explanation or distinction among
the defenses raises a red flag that the attorney has not conducted
the required factual or legal inquiry necessary to determine
whether those defenses are in fact applicable. For example, it is
difficult to see how Rule 12(b)(1) (lack of subject matter
jurisdiction) could possibly be relevant in this particular
automobile accident litigation. A defendant's counsel cannot,
under Rule 11, simply reference all possible defenses in order to
avoid waiving a defense unless he or she has conducted the inquiry
required to determine that the defense is viable.
For the foregoing reasons, I agree that the trial court erred
in granting defendant's motion to dismiss.
*** Converted from WordPerfect ***