discussing how our Courts must strictly construe whether the party properly served the defendant under Rule 4(j1) because this type of service is a “derogation of the common law.”
How later courts described this case
- discussing how our Courts must strictly construe whether the party properly served the defendant under Rule 4(j1) because this type of service is a “derogation of the common law.”
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-731
Filed: 19 March 2019
Durham County, No. 17CVS3530
DENISE ANGELISTA HENRY, Plaintiff,
v.
ELENA NICOLE MORGAN, Defendant.
Appeal by Plaintiff from order entered 22 March 2018 by Judge A. Graham
Shirley in Durham County Superior Court. Heard in the Court of Appeals 15 January
2019.
Law Office of Saprina Brown Taylor, by Saprina Brown Taylor, for Plaintiff-
Appellant.
Law Office of Robert E. Ruegger, by Robert E. Ruegger, for Defendant-Appellee.
INMAN, Judge.
When a plaintiff’s attempts to find and serve a defendant do not meet the due
diligence standard described by Rule 4(j1) of the North Carolina Rules of Civil
Procedure, service of process by publication is improper and dismissal is appropriate.
Plaintiff Denise Angelista Henry (“Plaintiff”) brought suit against Defendant
Elena Nicole Morgan (“Defendant”) for negligence. Plaintiff appeals from the trial
court’s order granting Defendant’s motion to dismiss for lack of service of process,
insufficiency of process, and insufficiency of service of process. After careful review
HENRY V. MORGAN
Opinion of the Court
of the record and applicable law, we hold that the trial court did not err in granting
Defendant’s motion and affirm.
FACTUAL AND PROCEDURAL HISTORY
The record and the trial court’s undisputed findings of fact reveal the following:
On 18 July 2014, Plaintiff and Defendant were involved in a motor vehicle
accident. Plaintiff filed a complaint alleging negligence on 17 July 2017, and a civil
summons was issued. The summons listed Defendant’s address as 2931 Springsweet
Lane, Apartment 17, Raleigh, North Carolina, and service was attempted at that
address by the Wake County Sheriff’s Office. The summons was returned unserved
on 31 August 2017, with a deputy sheriff’s note indicating that after several attempts
he was unable to locate Defendant.
At all times relevant to this case, Defendant has resided at 4021 Bella Park
Trail, Apartment 5, Raleigh, North Carolina. Defendant’s driver’s license, issued 1
July 2016, reflects this fact.
On 23 August 2017, Plaintiff’s attorney participated in the mediation of an
unrelated case with an attorney retained by Defendant. During this meeting, the
attorneys discussed Plaintiff’s difficulty serving Defendant. Plaintiff’s attorney told
Defendant’s attorney that she would “keep him posted regarding service,” but did not
ask for Defendant’s address.
-2-
HENRY V. MORGAN
Opinion of the Court
An endorsement of the original summons and complaint was issued and, on 18
September 2017, Plaintiff’s attorney sent a copy to Defendant’s attorney and
Defendant’s insurance carrier. In these communications, Plaintiff did not ask for
Defendant’s address, but instead informed Defendant’s attorney that Defendant
would be served by publication.
Plaintiff’s attorney conducted a Google search and determined that Defendant
may have still resided in Raleigh, North Carolina at that time. The record reflects
no evidence of any additional attempt by Plaintiff to locate Defendant. Notice of
service of process by publication was published in the Midtown Raleigh News on 4
October 2017, 11 October 2017, and 18 October 2017.
On 26 December 2017, Defendant filed an answer to the Complaint, including
a Motion to Dismiss for lack of service of process, insufficiency of process, and
insufficiency of service of process.
The trial court granted Defendant’s motion and entered an order dismissing
Plaintiff’s Complaint on 22 March 2018. Plaintiff appeals.
ANALYSIS
A trial court’s unchallenged findings of fact are conclusive on appeal. Dreyer
v. Smith, 163 N.C. App. 155, 157, 592 S.E.2d 594, 595 (2004). A trial court’s
conclusions of law are reviewed de novo. Farm Bureau v. Cully’s Motorcross Park,
366 N.C. 505, 512, 742 S.E.2d 781, 786 (2013). We review the trial court’s conclusions
-3-
HENRY V. MORGAN
Opinion of the Court
that Plaintiff did not exercise due diligence in attempting to locate and serve
Defendant, and that service of process by publication was therefore improper. When
employing de novo review, the appellate court considers the matter anew and
substitutes its judgment for that of the trial court. Blow v. DSM Pharm., Inc., 197
N.C. App. 586, 588, 678 S.E.2d 245, 248 (2009).
Rule 4(j1) of the North Carolina Rules of Civil Procedure provides for service
of process by publication for “a party that cannot with due diligence be served” by
other statutory methods. N.C. Gen. Stat. § 1A-1, Rule 4 (2017). Due diligence
requires a plaintiff to “use all resources reasonably available to her in attempting to
locate defendants.” Fountain v. Patrick, 44 N.C. App. 584, 587, 261 S.E.2d 514, 516
(1980) (citations omitted). “Where the information required for proper service of
process is within plaintiff’s knowledge or, with due diligence, can be ascertained,
service of process by publication is not proper.” Id. Because service by publication is
in derogation of the common law, statutes authorizing service by this method “are
strictly construed, both as grants of authority and in determining whether service
has been made in conformity with the statute.” Id. at 586, 261 S.E.2d at 516 (citations
omitted).
In considering whether a plaintiff exercised due diligence in her attempts to
locate and serve a defendant, this Court has refrained from creating a “restrictive
-4-
HENRY V. MORGAN
Opinion of the Court
mandatory checklist,” but rather conducts a case-by-case analysis. Jones v. Wallis,
211 N.C. App. 353, 358, 712 S.E.2d 180, 184 (2011) (internal quotations omitted).
Here, Plaintiff’s efforts to locate and serve Defendant consisted of (1) an
attempt to serve the summons and complaint at an address at which Defendant did
not reside and (2) a general internet search. Plaintiff also provided copies of the
endorsed summons to Defendant’s attorney and insurer, but did not ask either to
provide Defendant’s contact information or to accept service on Defendant’s behalf.
Plaintiff did not examine Division of Motor Vehicles (“DMV”) or other public records.
No individual action that Plaintiff took or failed to take is dispositive to the
issue of whether or not Plaintiff exercised due diligence. For example, this Court has
in the past emphasized the importance of examining public records—see In re Clark,
76 N.C. App. 83, 87, 332 S.E.2d 196, 199 (1985) (“We find the following findings of
fact most persuasive: . . . [t]hat the petitioner in this matter checked no public records
to determine the location and identity of the father of the minor child”)—but has in
another decision held that the due diligence requirement was satisfied even though
a plaintiff failed to consult DMV records. Jones, 211 N.C. App. at 358, 712 S.E.2d at
184.
Plaintiff’s argument relies heavily on comparisons to Jones. In Jones, as in
this case, the plaintiff did not search DMV records, use any fee-based internet search
service, or ask the defendant’s counsel for the defendant’s address. Id. This Court
-5-
HENRY V. MORGAN
Opinion of the Court
did not find these failures determinative, because “a plaintiff is not required to jump
through every hoop later suggested by a defendant in order to meet the requirement
of due diligence.” Id at 359, 712 S.E.2d at 185. But other facts in Jones—not present
in this case—supported the Court’s conclusion. In its analysis, this Court focused on
the steps “actually undertaken” by the plaintiff, rather than methods not undertaken.
Id. at 359, 712 S.E.2d at 184. The plaintiff’s attorney in Jones had asked the
defendant’s attorney to accept service of process, and the defendant’s counsel refused
that request, providing indicia that it would be futile for the plaintiff’s attorney to
ask for the defendant’s address. Id. Here, Plaintiff’s attorney did not ask Defendant’s
attorney to accept service and did not ask for Defendant’s address. The plaintiff’s
counsel in Jones also attempted personal service at multiple addresses, searched non-
DMV public records, and interviewed current residents of the defendant’s former
address. Id.
Given that the efforts undertaken here fall short of those made in Jones,
Plaintiff’s failure to search any public records at all invites comparison to this Court’s
holding in Clarke that the petitioner had not exercised due diligence sufficient to
justify service by publication. 76 N.C. App. at 87, 332 S.E.2d at 199.
We cannot hold that a single failed attempt at personal service at an address
where Defendant did not reside and a general internet search constitute due diligence
when readily available resources were left unexplored. To do so would render
-6-
HENRY V. MORGAN
Opinion of the Court
meaningless the requirement that a plaintiff use all resources reasonably available
to locate a defendant. Because Plaintiff failed to exercise due diligence, service of
process by publication was improper, and the trial court correctly granted
Defendant’s motion to dismiss the action for insufficient service of process.
AFFIRMED.
Judges BRYANT and DAVIS concur.
-7-