YANG v. LAI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BING YANG, )

)

Plaintiff, )

)

v. )

) 1:22-cv-5

UNIVERSITY OF NORTH CAROLINA )

AT CHAPEL HILL, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is Defendant’s Motion to Dismiss the

Second Amended Complaint, filed by the University of North

Carolina at Chapel Hill (“Defendant”). (Mot. to Dismiss

(Doc. 56).) For the reasons stated below, the motion will be

granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Bing Yang (“Plaintiff”), proceeding pro se, filed

a Second Amended Complaint, (Compl. (Doc. 43)), naming

University of North Carolina at Chapel Hill as the “Main

Defendant,” and four individuals previously named in his

original complaint as “Defendants In Alternative.” (Compl. (Doc.

43) at 1–4.)1 On November 17, 2023, this court granted in part

Defendants’ Motion to Strike and struck allegations in the

Second Amended Complaint as to the “Alternative Defendants.”

(Order (Doc. 50) at 7.)

Plaintiff was employed as a Research Specialist at the

University of North Carolina at Chapel Hill's Eshelman School of

Pharmacy for over thirty years. (Compl. (Doc. 43) at 5–6, 7,

10.) He is fifty-eight years old. (Id. at 8.) Plaintiff alleges

that from March 2019 to December 2021 Plaintiff was subject to a

hostile work environment and was discriminated and retaliated

against based on his age. (Id. at 7.)

Construing Plaintiff’s Second Amended Complaint liberally,

he brings claims against Defendant for age discrimination,

retaliation, and harassment pursuant to the Age Discrimination

in Employment Act (“ADEA”). (See generally Compl. (Doc. 43).)

Plaintiff also purports to assert various common law claims

including “reckless breach of fiduciary duty,” “malice,”

“punitive damages,” “intentional inflection of emotional

distress,” and “unjust enrichment.” (Id. at 14–16)

1 All citations in this Memorandum Opinion and Order to

documents filed within the court refer to the page numbers

located at the bottom right-hand corner of the documents as they

appear on CM/ECF.

On December 15, 2023, Defendant filed a motion to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(5),

and 12(b)(6). (Mot. to Dismiss (Doc. 56).) Defendant argues: (1)

this court lacks personal jurisdiction over UNC based on lack of

service; (2) Plaintiff’s discrimination and retaliation claims

are untimely; (3) Plaintiff fails to allege facts to support his

discrimination or (4) retaliation claims; (5) Defendants are

immune from Plaintiff’s state law claims; and (6) Plaintiff

fails to allege facts to support his state law claims. (Mem.

(Doc. 57) at 5–6.)

II. SERVICE OF PROCESS

Under Rule 12(b)(5), a defendant may raise insufficient

service of process as a defense. Fed. R. Civ. P. 12(b)(5). “The

plaintiff bears the burden of establishing that the service of

process has been performed in accordance with the requirements

of Federal Rule of Civil Procedure 4.” Chrisp v. Univ. of N.C.-

Chapel Hill, 471 F. Supp. 3d 713, 716 (M.D.N.C. 2020) (citation

omitted). The rules governing service apply equally to pro se

plaintiffs. See Shaver v. Cooleemee Volunteer Fire Dept., No.

1:07cv00175, 2008 WL 942560, at *2 (M.D.N.C. Apr. 7, 2008)

(unpublished).

Defendant moves to dismiss for insufficient service of

process because Plaintiff never served Defendant University of

North Carolina. (Mem. (Doc. 57) at 11–12.) Plaintiff responds

that he emailed various individuals within the University of

North Carolina system a copy of the Second Amended Complaint,

and “has taken all reasonable steps to notify the Defendant of

the legal action.” (Pl.’s Resp. (Doc. 58) at 7–8.) Defendant

replies that Plaintiff has failed to serve a summons on the

Defendant. (Def.’s Reply (Doc. 59) at 7.)

Federal Rule of Civil Procedure 4(j)(2) governs the service

of process upon state agencies.2 See Diede v. UNC Healthcare, No.

5:16-CV-00788, 2018 WL 549430, at *4 (M.D.N.C. Jan. 24, 2018)

(unpublished). That rule provides that a state agency “must be

served by” either: “(A) delivering a copy of the summons and of

the complaint to its chief executive officer; or (B) serving a

copy of each in the manner prescribed by that state’s law for

serving a summons or like process on such a defendant.” Fed. R.

Civ. P. 4(j)(2). “North Carolina law allows service of process

on a state agency defendant by serving its process agent or, if

no process agent has been appointed, by serving the Attorney

General or a deputy or assistant attorney general.” Brown v.

Winston-Salem State Univ., No. 1:06CV588, 2008 WL 11355355, at

2 “The University of North Carolina is a state agency.”

Bryant v. Locklear, 947 F. Supp. 915, 916 (E.D.N.C. 1996)

(citing Bd. of Governors of the Univ. of N.C. v. U.S. Dep’t of

Lab., 917 F.2d 812 (4th Cir. 1990)).

*2 (M.D.N.C. Sept. 16, 2008) (unpublished) (citing N.C. R. Civ.

P. 4(j)(4)).

“While mere technicalities ordinarily should not stand in

the way of finding proper service and courts will liberally

construe the rules when actual notice occurs, ‘the rules are

there to be followed, and plain requirements for the means of

effecting service of process may not be ignored.’” Chrisp, 471

F. Supp. 3d at 716 (quoting Armco, Inc. v. Penrod-Stauffer Bldg.

Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984)). “Absent waiver

or consent, a failure to obtain proper service on the defendant

deprives the court of personal jurisdiction over the defendant.”

Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998) (citing

Armco, Inc., 733 F.2d at 1089).

Although Plaintiff contends he emailed a copy of his

Complaint to various individuals at the University of North

Carolina at Chapel Hill, he failed to establish he delivered a

summons or a copy of the Complaint in accordance with Fed. R.

Civ. P. 4(j)(2) or N.C. R. Civ. P. 4(j)(4).

If a defendant is not served within 90 days of the filing

of the complaint, 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). If the plaintiff

can show good cause for the failure to provide service, “the

court must extend the time for service for an appropriate

period.” Id.

“Good cause” requires a “showing of diligence on the

part of the plaintiff[].” Attkisson v. Holder, 925 F.3d

606, 627 (4th Cir. 2019). Consistent with that

foundational principle, good cause is commonly found to

“exist[ ] when the failure of service is due to external

factors, such as the defendant's intentional evasion of

service,” but “significant periods of inactivity” and a

“fail[ure] to seek extension of time before [the] deadline

[has] lapsed” tend to undercut any claim of good cause.

Id. At bottom, “[w]hile ‘good cause’ is a flexible

standard, diligence provides a touchstone for an appellate

court” in its review. Id.; see also 4B Charles Alan

Wright, Arthur R. Miller & Adam N. Steinman, Federal

Practice and Procedure § 1137 (4th ed. 2015) (explaining

that in evaluating good cause under Rule 4(m), “courts

have rejected excuses based on ... ignorance of the rule,

the absence of prejudice to the defendant, ...

inadvertence of counsel, or the expenditure of efforts

that fall short of real diligence by the serving party”).

Gelin v. Shuman, 35 F.4th 212, 218 (4th Cir. 2022). Plaintiff’s

pro se status alone does not establish good cause. See Chrisp,

471 F. Supp. 3d at 717 (dismissing pro se plaintiff’s complaint

for failure to effectuate proper service).

Here, there is no indication that the lack of proper

service was due to external factors such as Defendant’s

intentional evasion of service. Moreover, there is no indication

that Plaintiff made reasonable efforts to properly serve

Defendant with a summons, such as by hiring a process server.

Cf. Elkins v. Broome, 213 F.R.D. 273, 276 (M.D.N.C. 2003)

(finding good cause for pro se plaintiff’s failure to effect

legal service on defendant when plaintiff hired a professional

process server and process server attempted multiple times to

effectuate service).

Plaintiff filed his Second Amended Complaint on March 4,

2023. (See Doc. 43.) There is no indication that Plaintiff has

made any efforts other than emailing a copy of the Complaint

since then. Plaintiff has shown his ability to request a summons

for the individual defendants he originally named in this

action, (see Summons (Doc. 3)), and his ability to hire a

process server, (see Proof of Service (Doc. 7); Compl. (Doc. 43)

at 18 (requesting relief for process server cost)), yet has not

made similar efforts to serve Defendant University of North

Carolina.

In sum, Plaintiff has not shown good cause for his failure

to serve Defendant. While, even absent a showing of good cause,

“a district court possesses discretion to grant the plaintiff an

extension of time to serve a defendant with the complaint and

summons,” Gelin, 35 F.4th at 220, this court declines to

exercise that discretion here. Plaintiff has had multiple

opportunities to amend his complaint but in doing so has failed

to adhere to the Federal Rules of Civil Procedure and the Orders

of this court. (See generally Order (Doc. 50) (recounting the

flaws in Plaintiff’s initial complaint and successive

amendments) .)

III. CONCLUSION

Plaintiff has failed to show good cause for his failure to

effectuate service of process on Defendant. It is within this

court’s discretion to either dismiss the Complaint without

prejudice or extend the time period to allow Plaintiff to serve

Defendant. This court finds it appropriate to dismiss the

Complaint under the present circumstances.

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss

the Second Amended Complaint, (Doc. 56), is GRANTED. Plaintiff’s

Complaint will be dismissed without prejudice.

A Judgment dismissing this action will be filed

contemporaneously herewith.

This the 30th day of September, 2024.

United States District J e

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