North Carolina Divorce Lawyers Blog
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Playing by the Rules – Service of Process

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Stewart v. Shipley, 825 S.E.2d 684, 264 N.C.App. 241 (N.C. App. 2019)

You might imagine your civil court case as a game. All games have rules, and the handbook that tells you how to play the game is the Rules of Civil Procedure. And you can’t break the rules without consequences. The rules exist in a game to make things fair and efficient and ordinary. In this way, the Rules of Civil Procedure promotes fairness, efficiency, and order. Below is a case that talks about one of those rules.

  • Facts: Plaintiff was injured in a medical procedure. She sought to sue the doctor, the practice, and the hospital for her injury. She initially emailed a Summons and Complaint to the practice’s malpractice insurance. When the claims specialist would not accept service, Plaintiff then sent the Summons and Complaint to a process server to hand to the Defendants. This was met with a motion to dismiss, including dismissal over improper service of process. The trial court granted the dismissal and stated that without first attempting to serve by sheriff, or ask the clerk to appoint a process server, service by process server was improper. Plaintiff appeals.

 

  • Issue: When the trial court dismissed Plaintiff’s complaint, was it an error?

 

  • Holding:

 

  • Rationale: As our Rules of Civil Procedure states, to use a process server to serve Summons and Complaints, a plaintiff must first have unsuccessful service via sheriff. Alternatively, plaintiffs can give written affidavits to the Clerk of Court for why a sheriff would not be appropriate for service. Some reasons are that the sheriff was negligent, or an interested party, or refuses to serve, or nonexistent. Then the Clerk may appoint a process server to effectuate service. Without first going through those channels, it was premature to employ a process server. This case also dealt with a doctrine called estoppel. That is a far more complex issue. But that issue could have been avoided if the Plaintiff had gone through the proper channels for service in the first place.