May v. Martin Fein Interest Ltd.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

Case No. 5:21-CV-00083-M

RAYMOND EARLY MAY, JR. and, )

ANGELA DOLORES MAY, )

)

Plaintiffs, )

) ORDER

V. )

)

MARTIN FEIN INTEREST LTD., et ai., )

)

Defendants. )

This matter is before the court on Defendants’ Motions to Dismiss Plaintiffs’ Complaint

Pursuant to Fed. R. Civ. P. 12(b)(2), (b)(4), (b)(5), (b)(6) [DE 22, DE 26, DE 63, DE 64, DE 66,

DE 67, DE 68, DE 71, DE 84] and Plaintiffs’ Motion to Extend Time to Serve Summons [DE 81],

Motion to Amend Summons and Add Defendants [DE 82], and Petition to Use Alternative Method

of Service [DE 97]. For the reasons that follow, Plaintiffs’ motions are granted, and Defendants’

motions are denied as moot.

I. Background

This is an action by pro se plaintiffs. The Plaintiffs’ claims arise from a series of disputes

between the Plaintiffs and their apartment complex, Creekside at Crabtree Apartments. Among

other allegations, the Plaintiffs allege that they were not allowed to pay rent like other tenants,

[DE 1-2, Compl. 38, 42-43; DE 12, at 4-5], that Defendants refused to sign for and accept

Plaintiffs’ medications, [DE 1-2, Compl. 44, 51-53, 59; DE 12, at 56, 12], and that Defendants

made other statements and actions that the Plaintiffs allege are racist and discriminatory, [DE 1-2,

Compl. {§ 47-48, 61; DE 12, at 6-7, 8-9]. Plaintiffs’ Complaint includes a Fair Housing Act

(FHA) claim for racial discrimination, an FHA claim for retaliation, an FHA claim for disability

discrimination, a claim under the Americans with Disabilities Act, and a claim for intentional

infliction of emotional distress. [DE 1-2; DE 12].

On February 19, 2021, Plaintiffs filed a motion for leave to proceed in forma pauperis along

with their complaint and supporting documents. [DE 1]. On February 23, 2021, the court entered

an order directing Plaintiffs to correct certain deficiencies and return corrected documents within

fourteen days. [DE 6]. On March 5, 2021, Plaintiffs filed new motions for leave to proceed in

forma pauperis and proposed summonses. [DE 7, DE 8].

On June 17, 2021, Magistrate Judge Jones submitted a Memorandum and

Recommendation (““M&R”). [DE 12]. The M&R recommended dismissing the claims under the

Americans with Disabilities Act and for intentional infliction of emotional distress. It

recommended allowing Plaintiffs to proceed with their claims for racial discrimination, retaliation,

and disability discrimination under the Fair Housing Act. This court adopted the M&R in full.

[DE 16].

On August 2, 2021, summonses were issued, [DE 17], but service was improper. All

Defendants moved to dismiss for improper service. [DE 22, DE 26]. Plaintiffs moved to extend

time to serve summonses and the complaint, amend summonses, and for service by the U.S.

Marshals. [DE 43, DE 44, DE 45]. On October 21, 2021, Magistrate Judge Jones entered an order

allowing the Plaintiffs to amend their summonses, ordering the U.S. Marshal to serve Defendants,

and extending the time to effect service until December 15, 2021. [DE 50].

On November 10, 2021, Plaintiffs filed new proposed summonses [DE 54], which were

reissued on November 16, 2021 [DE 55]. Plaintiffs attempted service on William Hubbard [DE

54], Brenda Hubbard [DE 54-1], Trevor Stroud [DE 54-2], Katie Nelson [DE 54-3], Martin Fein

Interest Ltd. [DE 54-4], Invesco [DE 54-5], Bell Partners [DE 54-6], and Desserraye Perry [DE

54-7]. The returns of service are filed at DE 57—DE 62, DE 74, and DE 83.

Ten Defendants are currently named in the case. Five have been served (as addressed on

the proposed summonses): Bell Partners, Invesco, Katie Nelson, Trevor Stroud, and William

Hubbard. Three parties are unserved: Martin Fein, Brenda Hubbard, and Desserraye Perry. Two

parties are unserved: Karry Allen and Meagan Dawes.

The five Defendants who purportedly received service filed second motions to dismiss

pursuant to Rule 12(b)(2), (b)(4), (b)(5), and (b)(6).

Il. Legal Standards

Rule 4 of the Federal Rules of Civil Procedure governs service of process in the federal

courts. Service of process is the issuance of a summons and complaint to each defendant. Fed. R.

Civ. P. 4(a), (b), (c). “Service of summons is the procedure by which a court having venue and

jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.”

United States v. Perez, 752 F.3d 398, 406 (4th Cir. 2014). ‘‘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).

Rule 4(e) of the F ederal Rules of Civil Procedure governs serving an individual. It states

that an individual may be served in a judicial district of the United States by

(1) following state law for serving a summons in an action brought in courts of

general jurisdiction in the state where the district court is located or where service

iS made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual

personally;

(B) leaving a copy of each at the individual’s dwelling or usual place of abode

with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law

to receive service of process.

Fed. R. Civ. P. 4(e).

Under Rule 4(e)(1), Plaintiffs can serve an individual in accord with North Carolina law.

N.C. Gen. Stat § 1A-1, Rule 4()(1) provides that the manner of service of process on a natural

person shall be by one of the following:

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. Gen. Stat. [A-1, Rule 4G)(1).

Rule 4(h) of the Federal Rules of Civil Procedure governs serving a corporation,

partnership, or association. Rule 4(h) states that a domestic corporation or partnership must be

served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a

managing or general agent, or any other agent authorized by appointment or

by law to receive service of process and--if the agent is one authorized by

statute and the statute so requires--by also mailing a copy of each to the

defendant.

Fed. R. Civ. P. 4(h)(1).

Under Rule 4(h)(1)(A), Plaintiffs can serve a corporation, partnership, or association in

accord with North Carolina law. N.C. Gen. Stat § 1A-1, Rule 4(j)(6) provides that the manner of

service of process shall be by one of the following:

a. By delivering a copy of the summons and of the complaint to an officer, director,

or managing agent of the corporation or by leaving copies thereof in the office of

such officer, director, or managing agent with the person who is apparently in

charge of the office.

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 officer, director or agent to be served

as specified in paragraphs a and b.

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 officer.

director, or agent to be served as specified in paragraphs a. and b., delivering to the

addressee, and obtaining a delivery receipt. As used in this sub-subdivision,

“delivery receipt” includes an electronic or facsimile receipt.

N.C. Gen. Stat § 1A-1, Rule 4G)(6).

Rule 4(m) governs dismissal for failure to serve process within 90 days. “If a defendant is

not served within 90 days after the complaint is filed, the court . .. must dismiss the action without

prejudice against that defendant or order that service be made within a specified time.” Fed. R.

Civ. P. 4(m). “But if the plaintiff shows good cause for the failure, the court must extend the time

for service for an appropriate period.” /d. Nevertheless, a defect in service can be cured by actual

notice if the defect is a mere technicality and there is substantial compliance with Rule 4’s

strictures. See Scott v. Maryland State Dep’t of Lab., 673 F. App’x 299, 304 (4th Cir. 2016).

Although the purpose of service of process is actual notice, plaintiffs must still comply

with the plain requirements of Rule 4. /d. However, when a defendant receives actual notice, the

requirements of Rule 4 should be “construed liberally.” See Elkins v. Broome, 213 F.R.D. 273,

275 (M.D.N.C. 2003); see also Washington v. Cline, 233 N.C. App. 412, 420. 761 S.E.2d 650.

655-656 (2014) (explaining that the North Carolina Supreme Court and Court of Appeals have

held “liberality as the canon of construction when interpreting the North Carolina Rules of Civil

Procedure.”). “When there is actual notice, every technical violation of the rule or failure of strict

compliance may not invalidate the service of process. But the rules are there to be followed. and

plain requirements for the means of effecting service of process may not be ignored.” Elkins. 213

F.R.D. at 275 (quoting Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th

Cir. 1984)). Although actual notice provides for a liberal construction, “substantial compliance”

with the rules is still required to cure any technical defect in service. Sco/t, 673 F. App’x at 306

(explaining the liberal construction afforded the rules by actual notice will overcome minor

technical defects but Rule 4 still “must be accorded at least substantial compliance”) (internal

citations and quotation marks omitted). “Actual notice does not equate to sufficient service of

process, even under the liberal construction of the rules applicable to a pro se plaintiff.” /d. at 305.

Rule 12 of the Federal Rules of Civil Procedure governs motions to dismiss for detects in

service. A motion under Rule 12(b)(2) of the Federal Rules of Civil Procedure seeks dismissal

based on lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). A motion under Rule 12(b)(4)

seeks dismissal based on insufficient process, i.e. “the forms are technically deficient (e.g.. wrong

name) or otherwise deficient in ways that are unrelated to service of the pleadings.” Brown vy.

Charlotte Rentals LLC, No. 3:15-CV-0043-FDW-DCK, 2015 WL 4557368, at *3 (W.D.N.C. July

28, 2015). A motion under Rule 12(b)(5) seeks dismissal based on insufficient service of process.

i.e. “[dJeficiencies in service, as opposed to process, [which] relate to the actual service of the

pleadings upon the parties.” /d.; see also 4 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1353 (3d ed. 2022).

Rule 12(b)(6) of the Federal Rules of Civil Procedure governs a motion to dismiss based

on failure to state a claim upon which relief can be granted. When considering a Rule 12(b)(6)

motion to dismiss, the court accepts as true all of the complaint’s well-pleaded factual allegations

and draws all reasonable inferences in the plaintiffs favor, Hall v. DIRECTV, LLC, 846 F.3d 757,

765 (4th Cir. 2017), but any legal conclusions proffered by the plaintiff need not be accepted as

true, Ashcroft vy. Iqbal, 556 U.S. 662, 678 (2009) (“|T]he tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).

To survive a Rule 12(b)(6) motion, the plaintiff's well-pleaded factual allegations, accepted

as true, must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). Twombly’s plausibility standard requires these allegations “be enough to

raise a right to relief above the speculative level,” 1.e., allege “enough fact to raise a reasonable

expectation that discovery will reveal evidence of illegal [conduct].” /d. at 555-56. A speculative

claim resting upon conclusory allegations without sufficient factual enhancement cannot survive

- a Rule 12(b)(6) challenge. Jgbal, 556 U.S. at 678-79 (“[W]here the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—

but it has not ‘show[n]’—~‘that the pleader is entitled to relief.’” (quoting Fed. R. Civ. P. 8(a)(2)):

Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (“*[N]Jaked assertions’ of wrongdoing

necessitate some ‘factual enhancement’ within the complaint to cross ‘the line between possibility

and plausibility of entitlement to relief.’ (quoting Twombly, 550 U.S. at 557)).

II. Analysis

1. Invesco and Bell Partners

The Plaintiffs failed to properly serve Bell Partners and Invesco. Bell Partners moves to

dismiss under Rules 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure for lack of

personal jurisdiction and insufficient service of process. Invesco moves to dismiss under Rules

12(b)(4), 12(b)(S), and 12(b)(6) of the Federal Rules of Civil Procedure for insufficient service of

process, insufficient process, and failure to state a claim.

Plaintiffs’ attempted service on Bell Partners and Invesco was insufficient. Plaintiffs did

not attempt to deliver service of process or to deposit it with a designated delivery service; instead,

they elected to mail service of process. Therefore, service fails under all applicable methods except

N.C. Gen. Stat § 1A-1, Rule 4G)(6)(c). Rule 4(j)(6)(c) allows for service of process “{b]y mailing

a copy of the summons and of the complaint, registered or certified mail, return receipt requested,

addressed to the officer, director or agent to be served.”

In this case, service fails under Rule 4(j)(6)(c) because service was not addressed to the

officer, director, or agent to be served. “A plaintiff cannot hand a document directly to an

abstraction, so that abstraction must be served through an agent.” Jn re Newbrook Shipping Corp.,

31 F.4th 889, 897 (4th Cir. 2022) (citing Daimler AG v. Bauman, 571 U.S. 117, 135 n.13 (2014)

(“A corporation is a distinct legal entity that can act only through its agents.”)). Failure to name

that agent or even attempt to name an agent violates a plain requirement of Rule 4 and is more than

technical defect. See Gulley v. Rex Hosp., Inc., No. 5:14-CV-00127-F, 2014 WL 4537185, at *2

(E.D.N.C. Sept. 11, 2014) (noting failure to “comply with North Carolina Rule of Civil Procedure

4(j)(6)(c) because she failed to address the Summons and Complaint to an ‘officer, director or

agent’ of Rex Hospital, instead addressing it to only ‘Rex Hospital.’”); Brissett v. Fremont Inv. &

Loan Corp. Headquarters, No. 4:07-CV-108-FL, 2008 WL 11429663, at *3 (E.D.N.C. Jan. 9,

2008) (“The summons and complaint were not directed or addressed to any of the above-identified

individuals as required by Rule 4(j) of the North Carolina Rules of Civil Procedure.”); see also

Gittens v. Equifax, No. 3:16-CV-00228-FDW-DSC, 2019 WL 5790655, at *2-4 (W.D.N.C. Nov.

5, 2019) (dismissing a pro se plaintiff's case for failure to designate any officer or authorized agent

of the defendant-corporation when serving process), aff'd, 801 F. App’x 190 (4th Cir. 2020).

Although courts have held that “a mistake in a party's name in a summons is not always a fatal

error,” Shaver v. Cooleemee Volunteer Fire Dep't, No. 1:07-CV-00175, 2008 WL 942560. at *1

(M.D.N.C. Apr. 7, 2008), in this case, the Plaintiffs did not merely make a mistake in the party’s

name but instead did not address the summons to an officer, director, or agent at all. Therefore,

service is improper under Rule 4.

In addition, Invesco moves to dismiss Plaintiffs’ Complaint for failure to state a claim, but

Invesco’s motion relies on documents outside the four corners of the complaint. On a motion to

dismiss, this court must generally limit its review to the allegations in the complaint itself. Goines

v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). However, the court can consider

“documents that are explicitly incorporated into the complaint by reference,” documents “attached

to the complaint as exhibits,” and any documents “integral to the complaint” if “there is no dispute

about the document’s authenticity.” /d. Invesco relies ona North Carolina Special Warranty Deed

and the Deeds Summary printout from the Wake County Register of Deeds to argue it has no

ownership interest in the property and no legal connection to the Plaintiffs. [DE 66-1]. These

documents do not fall under any exception for considering documents outside the Complaint at the

12(b)(6) stage, and Invesco provides no argument that these documents fall under any of the

exceptions either. Instead, the Complaint alleges that Invesco is the owner of the property and that

the Plaintiffs received an email to this effect in June 2019. [DE 1-2, Compl. { 64]. Under Rule

12(b)(6), the court must take all allegations as true. There is a factual dispute as to the nature of

Invesco’s interest, ownership, and management of the property. Because Invesco’s only argument

for dismissal relies on disputed documents outside the complaint, Invesco’s motion to dismiss is

denied.

2. Katie Nelson and William Hubbard

The Plaintiffs failed to properly serve Katie Nelson and William Hubbard. Although

Plaintiffs served people named Katie Nelson and William Hubbard, they did not name the correct

Katie Nelson or William Hubbard.

The Affidavit of Katie Nelson Posey states “I am not the Katie Nelson referenced in the

Complaint.” It goes on to state

I have never worked for Martin Fein Interest Ltd. I have never worked as an

apartment manager and have not ever worked for an apartment complex at all. I

have never lived or worked in Houston, Texas. I have never heard of Creekside at

Crabtree Apartments or the plaintiffs until I read this Complaint. I do not know

and have never spoken to any of the individuals referenced in the Complaint.

[DE 68-1, § 3].

The Affidavit of William Hubbard states “I am not the William Hubbard referenced in the

Complaint.” It goes on to state

I have never worked for nor maintained an ownership interest in Martin Fein

Interest Ltd., Bell Partners, Inc., or Invesco Ltd. I nave never worked as an

apartment manager, nor have I ever worked for an apartment community at all. I

have never lived or worked at the Creekside at Crabtree Apartments in Raleigh.

North Carolina. Prior to reading this Complaint, I was unfamiliar with the

allegations at issue. I do not know any of the Parties referenced in the Complaint.

10

[DE 71-1, § 3]. Serving the wrong person is insufficient service of process. Cf Scott. 673 F.

App’x at 306 (failing to direct service to the correct address was improper because “[t]o hold

otherwise would eviscerate the clear requirements of Rule 4.”).

3. Trevor Stroud

The Plaintiffs failed to properly serve Trevor Stroud. Rule 4(e) of the Federal Rules of

Civil Procedure governs serving an individual. An individual may be served in a judicial district

of the United States by

(1) following state law for serving a summons in an action brought in courts of

general jurisdiction in the state where the district court is located or where service

is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual

personally;

(B) leaving a copy of each at the individual’s dwelling or usual place of abode

with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law

to receive service of process.

Fed. R. Civ. P. 4(e).

Under Rule 4(e)(1), Plaintiffs can serve an individual in accord with North Carolina law.

N.C. Gen. Stat § 1A-1, Rule 4(j)(1) provides that the manner of service of process on a natural

person shall be by one of the following:

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.

11

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. Gen. Stat. § 1A-1, Rule 4(j)(1).

The return of the Summons states that the Summons and Complaint were “delivered to the

front desk, reception area, or mail room.” [DE 83]. This does not comply with any valid method

of service. It was not delivered to the individual or natural person personally. Fed. R. Civ. P.

4(e)(2)(A); N.C. Gen. Stat. § 1A-1, Rule 4(j)(1)(a). It was not left with someone of suitable age

and discretion at the individual’s dwelling or usual place of abode. Fed. R. Civ. P. 4(e)(2)(B);

N.C. Gen. Stat. § 1A-1, Rule 4(j)(1)(a). It was not delivered to an agent. Fed. R. Civ. P. 4(e)(2)(C);

N.C. Gen. Stat. § 1A-1, Rule 4(j)(1)(b). It was not delivered to the addressee nor is there any

record of a return receipt requested. N.C. Gen. Stat. § 1A-1, Rule 4G)(1)(c). It was not delivered

to the addressee nor was a delivery receipt obtained. N.C. Gen. Stat. § 1A-1, Rule 4Q)(1)(d). It

was not delivered to the addressee nor was it mailed by signature confirmation as provided by the

United States Postal Service. N.C. Gen. Stat. § 1A-1, Rule 4(4)(1)(e). It was not served by any

means of valid service nor are the defects in service curable, because the failures described above

are not mere technical violations. There was no substantial compliance. In sum, Plaintiffs’

attempted service on Stroud was improper.

12

4. Plaintiff's Motion to Amend Summonses and Motion to Extend Time for Service.

The Plaintiffs have moved for an extension of time to serve summonses, to amend

summonses, and to add defendants. [DE 81, DE 82]. Plaintiffs request permission to amend the

summonses to correct anything that needs to be corrected to ensure proper service under the

Federal Rules of Civil Procedure. [DE 82]. They also move to use an alternative method for

service of asummons and complaint. [DE 97].

Rule 4 of the Federal Rules of Civil Procedure governs a federal court’s discretion to permit

amendments to summonses and extend the time to effectuate proper service of process. Rule 4(m)

states

If a defendant is not served within 90 days after the complaint is filed, the court—

on motion or on its own after notice to the plaintiff—must dismiss the action

without prejudice against that defendant or order that service be made within a

specified time. But if the plaintiff shows good cause for the failure, the court must

extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). Rule 4(a)(2) states, “The court may permit a summons to be amended.” Fed.

R. Civ. P. 4(a)(2).

Pursuant to Rule 4(m), if the Plaintiffs show good cause, then the court must extend the

time for service. “Generally, for purposes of Rule 4(m), ‘good cause’ requires some showing of

diligence on the part of the plaintiffs.” Arrkisson v. Holder, 925 F.3d 606, 627 (4th Cir. 2019), as

amended (June 10, 2019). Courts “can find good cause to extend the service deadline only if the

plaintiff made reasonable and diligent efforts to effect service within the 90-day period.” Shirley

v. Staubs, 812 F. App’x 162, 162 (4th Cir. 2020). “While ‘good cause’ is a flexible standard,

diligence provides a touchstone for an appellate court that is reviewing a dismissal under Rule

4(m).” Attkisson, 925 F.3d at 627. “What constitutes ‘good cause’ for purposes of Rule 4(m)

“necessarily is determined on a case-by-case basis within the discretion of the district court.”

13

Collins v. Thornton, 782 F. App’x 264, 267 (4th Cir. 2019). Moreover, Rule 4(m) “permits a

district court to enlarge the time for service even if there is no good cause shown.” Durity □□

Precision Walls, Inc., No. 5:19-CV-506-FL, 2020 WL 1492812, at *2 (E.D.N.C. Mar. 26, 2020)

(citing Henderson v. United States, 517 U.S. 654, 658 n. 5 (1996)).

The Plaintiffs’ motion to extend time is granted because they have shown good cause for

the delay and have been diligent in attempting to serve the Defendants. Elkins, 213 F.R.D. at 276

(“[T]o establish good cause, Plaintiff must show that he acted in good faith and demonstrate some

form of due diligence in attempting service.”). Courts consider a number of non-dispositive factors

in determining whether to extend time for service including “whether: 1) the delay in service was

outside the plaintiff's control, 2) the defendant was evasive, 3) the plaintiff acted diligently or

made reasonable efforts, 4) the plaintiff is pro se or in forma pauperis, 5) the defendant will be

prejudiced, or 6) the plaintiff asked for an extension of time under Rule 6(b)(1)(A).”” Scott, 673 F.

App’x at 306. “Courts have authorized extensions of time where a [pro se] plaintiff has made a

reasonable effort to effect service.” Gulley, 2014 WL 4537185, at *2.

These factors counsel in favor of finding good cause and granting Plaintiffs an extension

of time. Most importantly, Plaintiffs have acted diligently and made reasonable efforts to serve

the Defendants. Plaintiffs are pro se and have attempted service on time but have failed to comply

with the strictures of Rule 4. Although they moved for an extension of time and to amend service

after the 90-day deadline, they did so promptly, filing their motions soon after becoming aware of

their errors in response to the Defendants’ motions to dismiss for improper service. Cf Yongo v.

Nationwide Affinity Ins. Co. of Am., No. 5:07-CV-94-D, 2008 WL 516744, at *9 (E.D.N.C. Feb.

25, 2008) (finding good cause to extend time for service because the “plaintiff acted promptly after

the second amended complaint was filed to attempt service.”). The court gave Plaintiffs until

14

December 15, 2021, to serve Defendants. [DE 50]. Plaintiffs filed their proposed summonses on

November 10, 2021. [DE 54]. The Defendants filed their motions to dismiss for improper service

between December 22, 2021, and January 5, 2022. Plaintiffs responded by moving to extend time

less than two weeks later, on January 18, 2022. [DE 81]. Although Plaintiffs failed to follow the

strictures of Rule 4, they were diligent in attempting service, and moved for an extension of time

to effectuate proper service in quick response to the Defendants’ motions to dismiss. The Plaintiffs

have diligently, if improperly, pursued service of process.

In addition, the other factors support the court’s finding of good cause. First, although

there is no evidence that the delay in service was outside the Plaintiffs’ control, the Plaintiffs allege

that difficulties associated with the COVID-19 pandemic may have made it more difficult to

effectuate proper service. Second, the Defendants have not waived service despite receiving actual

notice. Instead, the Defendants move to dismiss the claims of pro se plaintiffs based on technical

violations of the Rules of Civil Procedure. [DE 12]. Third, the Plaintiffs are pro se and courts

generally allow pro se plaintiffs to correct technical insufficiencies in service. Norton v. Columbus

Cnty. Bd. of Elections, 493 F. Supp. 3d 450, 459 (E.D.N.C. 2020), aff'd, 834 F. App’x 54 (4th Cir.

2021); Thomas v. Nelms, No. 1:09-CV-491, 2013 WL 593419, at *1 (M.D.N.C. Feb. 14, 2013);

see also Alford v. Rosenberg, No. 7:16-CV-376-D, 2018 WL 2905741, at *2 (E.D.N.C. June 11,

2018) (“When a plaintiff is allowed to proceed in forma pauperis, the responsibility for serving

pleadings falls to the United States Marshal Service. In such cases, defects in service are not

attributable to the plaintiff and create good cause to excuse a failure to serve.”). Fourth, the

Defendants are not substantially prejudiced by an extension of time to effect service. See Yongo,

2008 WL 516744, at *9 (finding no prejudice to the defendant “beyond the inherent prejudice in

having to defend the suit.”). The Defendants have actual notice, the Plaintiffs have been diligent

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in attempting service, they have received only one extension of time, and the Defendants are trying

to dismiss Plaintiffs’ remaining claims on technicalities of service even though the Plaintiffs’

claims were properly filed and survived frivolity review. In accord with the Fourth Circuit’s

“strong preference for deciding cases on the merits’ by preventing any procedural

gamesmanship,” the court finds good cause and must grant the Plaintiffs an extension of time to

effectuate service of process. Sansotta v. Town of Nags Head, 724 F.3d 533, 547 (4th Cir. 2013);

see also Hallager v. Acct. Resol. Servs., LLC, No. 5:20-CV-354-BO, 2021 WL 6125621, at *1

(E.D.N.C. Mar. 4, 2021) (finding good cause to extend time for service due to “lack of prejudice

to [defendant] because [the defendant] ha[d] been served with the complaint and summons and

ha[d] notice of the suit... . the existence of the COVID-19 pandemic, the threat that the statute of

limitations will have run if plaintiffs claims are dismissed, and finally the Fourth Circuit’s strong

preference that cases be decided on the merits.”).!

' The Plaintiffs have shown good cause for failing to effectuate service within 90 days. Therefore,

this court must extend the time for Plaintiffs to serve Defendants. Fed. R. Civ. P. 4(m). However,

the Fourth Circuit is divided on whether a district court has discretion to grant an extension of time

even without a showing of good cause. See Mendez v. Elliot, 45 F.3d 75, 80 (4th Cir. 1995) (“Rule

4(m) requires that good cause be shown for obtaining an extension.”), but see Giacomo-Tano v.

Levine, 199 F.3d 1327, at *1 (4th Cir. 1999) (“Even if a plaintiff does not establish good cause,

the district court may in its discretion grant an extension of time for service.”); see also Scruggs v.

Spartanburg Reg’l Med. Ctr., 198 F.3d 237, at *2 (4th Cir. 1999) (“The Supreme Court recently

observed that ‘Rule 4(m) [ ... ] permits a district court to enlarge the time for service “even if □□□□□

is no good cause shown.’” Although this observation was not a holding by the Supreme Court, we

regard the Court’s statement as persuasive as to the meaning of Rule 4(m).” (internal citation

omitted)). This court notes that even if the Plaintiffs had not demonstrated good cause for their

delay, the court would exercise its discretion to extend time to effectuate service, because the

Plaintiffs are pro se and have been diligent in attempting service of process. Fed. R. Civ. P. 4(m)

(“If a defendant is not served within 90 days after the complaint is filed, the court—on motion or

on its own after notice to the plaintiff—must dismiss the action without prejudice against that

defendant or order that service be made within a specified time.” (emphasis added)).

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The Plaintiffs have acted in good faith and exercised due diligence in attempting service

on the Defendants. Therefore, good cause is shown to grant Plaintiffs’ motion to extend time,”

motion to amend summonses and add defendants,’ and motion to use alternative method of

service.’

? Rule 4(m) commands that if a party shows good cause for failing to serve within 90 days after

the complaint is filed, then the “court must extend the time for service for an appropriate period.”

Fed. R. Civ. P. 4(m). Nevertheless, the court notes that the Fourth Circuit sometimes requires a

party to show excusable neglect under Rule 6(b) for an extension of time in addition to good cause

under Rule 4(m). See Clark v. EI) Dupont de Nemours & Co., 86 F.3d 1149, 1996 WL 283321,

at *1 (4th Cir. May 30, 1996), but see Collins v. Thornton, 782 F. App’x 264, 266 (4th Cir. 2019)

(“A plaintiff may escape dismissal for failure to timely serve process if she demonstrates □□□□□

cause’ for the delay or if the district court exercises its discretion to extend the time for service.”).

“Neglect” encompasses “‘late filings caused by inadvertence, mistake, or carelessness, as well as

by intervening circumstances beyond the party’s control,” and “excusable” is “at bottom an

equitable [inquiry], taking account of all relevant circumstances surrounding the party’s omission.

Thompson y. E.I. DuPont de Nemours & Co., 76 F.3d 530, 533 (4th Cir. 1996) (internal citations

omitted). For the reasons stated in this order, especially the pro se Plaintiffs’ good faith and

reasonable diligence, the court finds excusable neglect for Plaintiffs’ failure to properly serve

within 90 days.

> The Defendants argue that under Rule 15 of the Federal Rules of Civil Procedure the Plaintiffs

should not be allowed to amend their Complaint to add new parties because the Plaintiffs allege

no facts stating claims against new parties. [DE 93]. The court agrees with the Defendants.

However, the court construes Plaintiffs’ pro se filing as a motion to amend the summonses to add

officers, directors, or agents for the corporate defendants. Plaintiffs’ motion to amend summonses

and add new Defendants only once references Rule 15, (on page 3 of the filing at Docket Entry

82), in a list of references to the rules of civil procedure that permit amendments to summons and

service. It appears the Plaintiffs want to add two parties to their proposed summonses—Martin J.

Fein, owner of Martin Fein Interest Ltd., and Martin L. Flanagan, CFA, President and CEO of

Invesco—as officers or agents of their respective corporations to remedy the defects in their

summonses. The Plaintiffs are permitted to do so but they are not permitted to amend their

Complaint without first moving under and satisfying the requirements of Rule 15.

* The Plaintiffs’ Petition to Use Alternative Method for Summons/Complaint Service in Support

seeks to serve the Defendants who reside in Texas under the Texas Rules of Civil Procedure.

Plaintiffs must serve pursuant to Rule 4 of the Federal Rules of Civil Procedure, which allows

service to follow “state law for serving a summons in an action brought in courts of general

jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ.

P. 4(e)(10), (h)(1)(A). Thus, Plaintiffs may serve Defendants under the Texas Rules of Civil

Procedure if service is made in Texas.

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IV. Conclusion

Plaintiffs’ motion to extend time to serve summonses [DE 81] and motion to amend

summonses and add defendants [DE 82] are GRANTED. Plaintiffs’ motion to use alternative

method of service [DE 97] is GRANTED. The court will grant Plaintiffs an additional thirty (30)

days to accomplish service of process on Defendants. Plaintiffs are directed to serve process in

accordance with Rule 4 of the Federal Rules of Civil Procedure. Defendants’ motions to dismiss

[DE 22, DE 26, DE 63, DE 64, DE 66, DE 67, DE 68, DE 71, DE 84] are DENIED AS MOOT.

SO ORDERED this qth day of May, 2022.

che (‘Vl eel f

( MGS ume

RICHARD E. MYERS II

CHIEF UNITED STATES DISTRICT JUDGE

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