Keep That Summons Alive!
A recent case out of the North Carolina Court of Appeals underscores the importance of keeping a summons alive until you are sure you have valid service on the defendant, or until you have received an answer that does not include service-related defenses and the time for amending the answer as a matter of course to include those defenses has expired.
In Midgette By Geico v. Concepcion, 2018 WL 2642923 (June 5, 2018), the Court of Appeals affirmed the judgment of the trial court dismissing the plaintiff’s complaint for lack of proper service upon the defendant. In Midgette, the plaintiff served the defendant at the address on the defendant’s active driver’s license and the defendant’s wife signed for the Federal Express delivery of the complaint and summons. Plaintiff also verified that the defendant’s name was on the deed for the property, that he was a registered voter in the county and that he was engaged in the real estate business in the state.
Defendant and his wife filed affidavits stating that the defendant was never served with the summons and complaint, that he never received the summons and complaint and that he had not lived at that address for a couple of years.
The trial court held that the presumption of valid service under Rule 4(j)(2) had been rebutted by the affidavits of more than one person (One affidavit will not do it. See, Harrington v. Rice, 245 N.C. 640 (1957)) showing unequivocally that proper service was not made upon the person of the defendant. The statute of limitations had by that time expired and the plaintiff was out of court.
At Lawyers Mutual, we recommend that you file your lawsuit early enough before the expiration of the statute of limitations to deal with service issues before the statute expires. If that is not possible, we recommend that you keep your summons alive until you receive an answer in which defenses of lack of jurisdiction over the person, insufficiency of service or insufficiency of service of process have not been raised by motion or in the responsive pleading, and the time for amending the Answer as a matter of course has expired.
Moreover, do not take the defendant’s affidavits at face value. Ask the court for time to depose the defendant and the affiants to test their veracity and how prior course of conduct might cast doubt on whether the defendant has shown clearly and unequivocally that valid service has not been made.