The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:24-CV-00879-KDB-DCK
JANE DOE,
Plaintiff,
v. ORDER
GARRY MCFADDEN, SHERIFF
OF MECKLENBURG COUNTY
NORTH CAROLINA; OFFICER
A AND OFFICER B,
Defendants.
THIS MATTER is before the Court on its own motion. In this action, Plaintiff alleges that
Defendant Garry McFadden, the Sheriff of Mecklenburg County, North Carolina and two
unnamed Officers of the Mecklenburg County Detention Center Central violated statutory and
constitutional religious and free speech guarantees when Plaintiff was arrested in February 2024.
Specifically, she was required to remove her hijab (which she wears in furtherance of her sincerely
held religious beliefs) while in custody and take a booking photograph without her hijab after her
arrest. Also, she complains that the booking photograph has been uploaded to a statewide database
that is accessible to all law enforcement agencies in North Carolina as well as members of the
public who search her name on the internet.
However, before the Court can address the serious constitutional questions presented by
Plaintiff’s Complaint, a summons must be issued and served in accordance with the Federal Rules
of Civil Procedure to permit this Court to exercise personal jurisdiction over a defendant. Omni
Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). When process or service of process
is deficient, dismissal is proper under Rule 12(b)(2) for lack of personal jurisdiction. See, e.g.,
Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984); Mylan Labs.,
Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993).
Despite the Court’s formal and informal attempts to determine if Plaintiff has met her
burden of establishing proper service, Plaintiff has failed to provide the Court evidence of proper
service. This action was filed on September 27, 2024, together with a Motion for a Preliminary
Injunction. See Doc. Nos. 1, 3. On October 21, 2024, a Summons was issued as to Sheriff
McFadden and on October 25, 2024, the Court entered a Text Order directing Plaintiff “to file a
return of service / notice of completed service when the Complaint, Summons and copies of
pending motions have been served.” In response, Plaintiff filed on November 13, 2024, a
“Certificate of Service” signed by “Malak Dridi” (whose connection to this matter was
undescribed) indicating only that “a copy of the foregoing document” (without identifying any
document) was “mailed/delivered” (without further specificity or explanation) to Sheriff
McFadden.
Plaintiff’s counsel was then notified by the Court that the Certificate of Service was
insufficient. Then, on November 21, 2024, Plaintiff filed an “Affidavit of Service” in which Mr.
Dridi (apparently an employee of Plaintiff’s counsel) asserts that he served the Summons and
Complaint on Sheriff McFadden by Certified Mail. The Affidavit does not mention service of the
pending motions as directed by the Court. Further, no delivery receipt proving service
accompanied the affidavit. The Court then again communicated to Plaintiff’s counsel that the filing
was insufficient. There has been no further response from Plaintiff. Nor has there been any
response to Plaintiff’s Complaint by Sheriff McFadden, which causes the Court to question
whether actual notice / service, much less proper service under the rules, has been accomplished.
A federal plaintiff may serve process on a defendant sued in his or her individual capacity
by delivering a summons and complaint to the individual personally, by leaving a summons and
complaint at the individual's house or other place of abode with someone of suitable age and
discretion who resides there, by serving the individual's authorized agent, or by serving the
individual in compliance with the law of the state where the federal court is located. See Fed. R.
Civ. P. 4(e). North Carolina law authorizes service on a natural person by personal delivery,
leaving copies at the defendant's dwelling house or usual place of abode with some person of
suitable age and discretion then residing therein, delivery to an agent authorized by appointment
or by law to be served or to accept service of process or by registered, certified or signature
confirmed mail or a designated delivery service. See N.C. R. Civ. P. 4(j)(1). Similarly, a “political
subdivision of the State, any county or city board of education, or other local public district, unit,
or body of any kind” may be served (i) by personally delivering a copy of the summons and of the
complaint to an officer or director thereof, (ii) by personally delivering a copy of the summons and
of the complaint to an agent or attorney-in-fact authorized by appointment or by statute to be served
or to accept service in its behalf, (iii) by mailing a copy of the summons and of the complaint,
registered or certified mail, return receipt requested, addressed to the officer, director, agent, or
attorney-in-fact as specified in (i) and (ii), or (iv) 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, agent, or attorney-in-fact as specified in (i) and (ii), delivering to the
addressee, and obtaining a delivery receipt. See N.C. R. Civ. P. 4(j)(5)(c).
Plaintiff has not established that her attempts at service fall within any of the circumstances
of service authorized under either federal or North Carolina law. Given the important questions
raised by Plaintiff, the Court has made numerous attempts to inform Plaintiff of the requirements
of service that must be met before the case can proceed on the merits, but to no avail. Accordingly,
the Court has no choice but to dismiss this action without prejudice pursuant to Federal Rule of
Civil Procedure 12(b)(2) for lack of personal jurisdiction.
NOW THEREFORE IT IS ORDERED THAT:
1. Plaintiff's Complaint is DISMISSED without prejudice for lack of proper service/
personal jurisdiction; and
2. The Clerk is directed to close this matter in accordance with this Order.
SO ORDERED ADJUDGED AND DECREED.
Signed: December 3, 2024
Kenneth D. Bell
United States District Judge □□ i