The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:24-CV-00511-FDW-DCK
JOHNNY E. MILLER, )
)
Plaintiff, )
)
vs. ) ORDER
)
CHARLOTTE MECKLENBURG )
SCHOOLS, CRYSTAL HILL, )
JACQUELINE BARONE, )
)
Defendants. )
)
THIS MATTER is before the Court on Defendants Charlotte Mecklenburg Schools,1
Crystal Hill, and Jacqueline Barone’s Motion to Dismiss for insufficient process and insufficient
service of process, pursuant to Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5).2 (Doc. No.
6.) The Motion has been fully briefed and is ripe for review. For the reasons stated below,
Defendants’ Motion to Dismiss is DENIED.
BACKGROUND
On May 28, 2024, Plaintiff filed his pro se Complaint, bringing a claim for discrimination
and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Doc.
No. 1, pp. 2–8.) Plaintiff claims he experienced race and sex discrimination while he was employed
1 The Court acknowledges Defendants explain the correct legal entity is Charlotte-Mecklenburg Board of
Education. (Doc. No. 7, p. 1.)
2 The Court notes Defendants’ memorandum in support states their Motion is “pursuant to . . . Rules
12(b)(1) and 12(b)(5) of the Federal Rules of Civil Procedure . . . .” (Doc. No. 7, p. 1.) However,
Defendants’ Motion states it is based on Rules 12(b)(4) and 12(b)(5), (Doc. No. 6, p. 1), and the
memorandum in support only discusses Rules 12(b)(4) and 12(b)(5), (Doc. No. 7, pp. 1–9). The Court also
notes Defendants’ Motion is made “pursuant to rules 12(b)(4) and 12(b)(5) . . . and North Carolina General
Statutes 115C-42 . . . .” (Doc. No. 6, p. 1.) However, Defendants’ memorandum in support does not
reference or discuss this state statute at all. Accordingly, the Court considers the Motion under Federal
Rules of Civil Procedure 12(b)(4) and 12(b)(5).
as a Social Studies teacher. (Id.) On May 28, 2024, the Clerk of this Court issued summonses for
Defendants. (Doc. No. 2.) On May 31, 2024, Plaintiff returned executed summonses, which he
personally delivered to Defendants’ places of employment. (Doc. No. 3, pp. 1–3.) Also on May
31, 2024, Plaintiff filed a certificate of service, stating he “personally hand-delivered and emailed”
a copy of the Complaint, initial scheduling order, and summons to each Defendant. (Doc. No. 4,
p. 1.)
On June 17, 2024, Defendants filed their Motion to Dismiss and memorandum in support.
(Doc. Nos. 6–7.) First, Defendants argue Plaintiff’s claims should be dismissed for insufficient
process against Defendant Charlotte Mecklenburg Schools because it “is not a legal entity and, as
such, cannot be properly named in a summons.” (Doc. No. 7, p. 4.) Defendants explain the proper
legal entity is the Charlotte-Mecklenburg Board of Education. (Id., p. 1.) Second, Defendants argue
for dismissal for insufficient service of process because Plaintiff served all three Defendants
himself and served individuals not authorized to accept service. (Id., pp. 5–9.)
On June 20, 2024, Plaintiff filed a Reply. (Doc. No. 8.) Plaintiff argues “Defendants
are/were absolutely not prejudiced nor harmed by the alleged error/oversight [in service] . . . .”
(Id., p. 2.) Plaintiff states he understood “[Defendant] Charlotte Mecklenburg Schools [] is/was
the same as (or included) the Charlotte Mecklenburg Board of Education” and argues this
misnomer can be corrected by amending his Complaint. (Doc. No. 8, p. 3.) Plaintiff argues he
intended to properly serve Defendants “by hand-delivering the Complaint and Summons [] to a
qualified adult [] who he was sure would serve the documents to the appropriate defendant[:]” 1)
Monica Miller, a supervisory employee with Defendant Charlotte Mecklenburg Schools, who told
Plaintiff “she would make sure that the Complaint and Summons was given to the ‘legal
department of Charlotte Mecklenburg Schools[;]’” 2) Lolita Williams, an assistant to Dr. Crystal
Hill, who told Plaintiff “she would make sure that Dr. Hill received the Complaint and Summons
by placing them on Dr. Hill’s desk[;]” and 3) Eloisa Perez, a secretary at Piedmont Middle IB
School where Dr. Jacqueline Barone works, who told Plaintiff “she would make sure that Dr.
Barone received the Complaint and Summons.” (Id., pp. 3–4.)
This Court entered a Roseboro Notice on July 10, 2024, notifying Plaintiff of his right to
respond to Defendants’ Motion, specifically including Federal Rule of Civil Procedure 4. (Doc.
No. 9.) The Court noted Plaintiff did respond to Defendants’ Motion and allowed Plaintiff
“additional time in which to file an additional Response to Defendants’ Motion based on the
standards detailed herein.” (Id., p. 4.) On August 14, 2024, Plaintiff filed an Additional Response
to Defendants’ Motion to Dismiss. (Doc. No. 13.) In it, Plaintiff claims a private process server,
Eric Backman of PaperBoi LLC, served Defendants, and included proof of service for each
Defendant signed by Mr. Backman. (Id., pp. 1–5.) Plaintiff “acknowledges that the copies of
summons and complaint served by Mr. Backman were not stamped by the Clerk of Court, but the
Plaintiff brought the additional copies of the summons and complaint to the Clerk’s office in an
attempt to get them stamped, but was told by the Clerk that stamped copies of the summons were
already filed with the Court. The Clerk would not stamp the additional copies.” (Id., p. 1.)
On August 21, 2024, Defendants filed a Reply. (Doc. No. 14.) Defendants argue Plaintiff
“concedes that he attempted to effectuate service of process with a summons that was not signed
or sealed by the Clerk of Court, as required by Rule 4 of the Federal Rules of Civil Procedure.”
(Id., p. 1.) Defendants claim Plaintiff is required to substantially comply with procedural rules to
cure defects in service and Plaintiff may not amend and reissue his summons without leave of the
Court. (Id., pp. 1–2.)
STANDARD OF REVIEW
Here, Defendants move to dismiss: 1) for insufficient process, pursuant to Rule 12(b)(4),
and 2) for insufficient service of process, pursuant to Rule 12(b)(5). “Federal Rule of Civil
Procedure 12(b)(4) and 12(b)(5) provide for dismissal where a litigant fails to adequately follow
the rules of process in serving pleadings.” Brown v. Charlotte Rentals, LLC, No. 3:15-CV-0043-
FDW-DCK, 2015 WL 4557368, at *3 (W.D.N.C. Jul. 28, 2015). “Rule 12(b)(4) concerns the
sufficiency of the form of the process, rather than the manner or method by which it is served.
Rule 12(b)(5), on the other hand, challenges the mode of delivery or the lack of delivery of the
summons and complaint.” Davies v. Jobs & Adverts Online, Gmbh, 94 F. Supp. 2d 719, 721 n.5
(E.D. Va. 2000).
All parties, pro se or otherwise, must comply with the Federal Rules of Civil Procedure.
See Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per curiam). “Service rules
. . . apply equally to litigants proceeding with or without counsel.” Shaver v. Cooleemee Volunteer
Fire Dep’t, No. 1:07cv00175, 2008 WL 942560, at *2 (M.D.N.C. Apr. 7, 2008). However,
dismissing a pro se plaintiff’s complaint based on a failure to follow procedural rules is a harsh
result. See Blakeney v. Goulston Techs., No. 3:19-cv-00688-GCM, 2020 WL 5821979, at *2
(W.D.N.C. Sept. 30, 2020). Courts should accord pro se litigants a “special judicial solicitude.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985). While “proceeding pro se
ordinarily will not excuse failure to properly accomplish service or a failure to understand the
rules[,]” if the defendant has actual notice, then the rules are generally entitled to a liberal
construction. Brown, No. 3:15-CV-0043-FDW-DCK, 2015 WL 4557368, at *3. Additionally, the
Fourth Circuit has “repeatedly expressed a strong preference that, as a general matter, . . . claims
and defenses be disposed of on their merits.” Colleton Preparatory Acad., Inc. v. Hoover Universal,
Inc., 616 F.3d 413, 417 (4th Cir. 2010).
A. Motion to Dismiss for Insufficient Process
Defendants contend Plaintiff’s Complaint should be dismissed because of insufficient
process. A defendant can move for dismissal “when process is insufficient” under Federal Rule of
Civil Procedure 12(b)(4). Darden v. PRA Grp., Inc., No. 3:20-cv-00650-FDW-DSC, 2021 WL
1572566, at *3 (W.D.N.C. Apr. 21, 2021). “Process may be insufficient if the forms are technically
deficient (e.g., wrong name) or otherwise deficient in ways that are unrelated to service of the
pleadings.” Brown, No. 3:15-CV-0043-FDW-DCK, 2015 WL 4557368, at *3.
“It has long been the rule in [the Fourth Circuit] that service of process is not legally
defective simply because the complaint misnames the defendant in some insignificant way.”
Morrel v. Nationwide Mut. Fire Ins. Co., 188 F.3d 218, 224 (4th Cir. 1999). “If [the pleading]
names [the parties] in such terms that every intelligent person understands who is meant . . . it has
fulfilled its purpose; and courts should not put themselves in the position of failing to recognize
what is apparent to everyone else . . .” United States v. A.H. Fischer Lumber Co., 162 F.2d 872,
873 (4th Cir. 1947) (internal citations and quotations omitted). When a party has notice and
appears, but is misnamed, courts may allow an amendment to cure the misnomer. Ross v. CNAC
(Smart Finance), No. 3:12-cv-827, 2013 WL 1858560, at *2 (W.D.N.C. Mar. 27, 2013) (citing
Fields v. Norfolk and Southern Ry. Co., 2012 WL 6554103, at *4 (S.D.W.Va. Dec. 14, 2012)),
memorandum and recommendation adopted, No. 3:12-cv-827, 2013 WL 1858589 (W.D.N.C. May
2, 2013).
B. Motion to Dismiss for Insufficient Service of Process
Defendants also contend Plaintiff’s Complaint should be dismissed pursuant to Rule
12(b)(5) for insufficient service of process. “A summons must be served with a copy of the
complaint. The plaintiff is responsible for having the summons and complaint served within the
time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes
service.” Fed. R. Civ. P. 4(c)(1). “Any person who is at least 18 years old and not a party may
serve a summons and complaint.” Fed. R. Civ. P. 4(c)(2). Courts “may permit” a summons or
proof of service to be amended. Fed. R. Civ. P. 4(a)(2), 4(l)(3).
A defendant can move for dismissal under Federal Rule of Civil Procedure 12(b)(5) for
insufficient service of process. Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F. Supp. 519, 526
(M.D.N.C. 1996). “Actual notice of the litigation does entitle courts to liberally construe the rules
regarding service of process and ‘every technical violation of the rule or failure of strict compliance
may not invalidate the service of process.’” Blakeney, No. 3:19-cv-00688-GCM, 2020 WL
5821979, at *1 (citing Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th
Cir. 1984)). “‘[W]hen a court finds that service is insufficient but curable, it generally should quash
the service and give the plaintiff an opportunity to re-serve the defendant.’” Connell v. Adams,
No. 1:22CV935, 2023 WL 2914856, at *5 (W.D.N.C. Apr. 12, 2023) (citing Gregory v. U.S./U.S.
Bankr. Ct. for Dist. of Colorado, 942 F.2d 1498, 1500 (10th Cir. 1991)), memorandum and
recommendation adopted, No. 1:22-CV-935, 2023 WL 3229968 (W.D.N.C. May 3, 2023).
ANALYSIS
A. Insufficient Process under Rule 12(b)(4)
Defendants challenge the adequacy of process, arguing Plaintiff incorrectly named
Charlotte Mecklenburg Schools as one of the Defendants, rather than Charlotte-Mecklenburg
Board of Education. (Doc. No. 7, p. 1.) Plaintiff explains he believed Charlotte Mecklenburg
Schools “is/was the same as (or included)” in the Charlotte Mecklenburg Board of Education.
(Doc. No. 8, p. 3.) The Court finds the misnomer makes process insufficient. However, the correct
legal entity, Charlotte-Mecklenburg Board of Education, received notice, as counsel appeared for
it and filed the instant Motion to Dismiss. The Court finds the defect can be corrected. Therefore,
Defendants’ Motion to Dismiss for insufficient process, pursuant to Rule 12(b)(4), is DENIED.
B. Insufficient Service of Process under Rule 12(b)(5)
Defendants challenge the service of process, arguing Plaintiff improperly served
Defendants by delivering the summonses himself and serving people not authorized to accept
service. (Doc. No. 7, pp. 5–9.) The Court notes Plaintiff attempted to serve summonses a second
time through a private process server, without seeking leave from the Court. (Doc. No. 13.)
Here, Plaintiff improperly served Defendants, by attempting to serve them himself and by
serving people not authorized to accept service. Even so, Defendants received notice of this
lawsuit. The Court determines while process of service was improper, the Court can quash the
prior service and order Plaintiff to serve Defendants in compliance with the Federal Rules of Civil
Procedure. Accordingly, Defendants’ Motion to Dismiss for insufficient service of process,
pursuant to Rule 12(b)(5), is DENIED.
CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss, (Doc. No. 6), is
DENIED. Plaintiffs service of process on all Defendants, (Doc. No. 3), is hereby QUASHED.
IT IS FURTHER ORDERED that Plaintiff shall have thirty (30) days from the entry of
this Order to file an Amended Complaint correctly naming all Defendants, to perfect service on all
Defendants, and to file proof of service. If Plaintiff fails to timely amend his Complaint and perfect
service, in accordance with the Federal Rules of Civil Procedure, then this action will be dismissed
without prejudice.
IT IS SO ORDERED.
Signed: September 30, 2024
Frank D. Whitney ; =
United States District Judge Regs?