Opinion of the Court
March 2018. Plaintiff was riding a bicycle and alleged he had sustained serious
injuries. Plaintiff and Defendant unsuccessfully attempted to settle the matter
outside of court. Plaintiff filed his complaint a few days before the statute of
limitations expired, seeking compensatory damages for Defendant’s purported
negligence on 2 March 2021.
Plaintiff used the United Parcel Service (“UPS”) to attempt to serve Defendant
on 13 April 2021. UPS had temporarily adjusted its delivery guidelines for packages
requiring a signature to a no-contact policy because of restrictions from the COVID-
19 pandemic. According to the UPS website, UPS drivers were still required “to make
contact with the consignee,” and the consignee was required to “acknowledge that
UPS is making a delivery and, if applicable, show government issued photo ID.”
The UPS “Proof of Delivery” receipt provides the package was delivered on 19
April 2021 and received by “MARTINAZ.” The driver signed “COVID-19” in the space
designated for a consignee’s signature to indicate compliance with the COVID-19 no-
contact signature protocols. Plaintiff’s lawyer signed an Affidavit of Service on 22
April 2021, which provided that a certified a copy of the Affidavit of Service was
mailed to the same address using the United States Postal Service (“USPS”).
Defendant moved to dismiss pursuant to Rule 4 and Rules 12(b)(2), 12(b)(4),
12(b)(5), and 12(b)(6) of the North Carolina Rules of Civil Procedure on 20 July 2021.
Defendant’s motion to dismiss included two affidavits: (1) one by Defendant stating
he had moved and had not been personally served with a copy of the Summons or
-2-
Complaint; and, (2) one from the person currently living at Defendant’s former
address, who stated he resided at the address on the day the Summons and
Complaint were sent. Defendant also attached paystubs and a change of address
from his bank demonstrating he was being paid at a different address at the time he
was served. Plaintiff filed a response to Defendant’s motion to dismiss on 27 August
2021.
Defendant’s motion was heard on 14 December 2021. The trial court found the
Summons “did not contain the Defendant’s correct address” and “the Defendant ha[d]
not been personally served with this lawsuit, pursuant to Rule 4 of the North Carolina
Rules of Civil Procedure.” The trial court granted Defendant’s motion to dismiss with
prejudice on 13 January 2022, as any subsequent issuance of any Alias and Pluries
would be time-barred as occurring after the statute of limitations had expired.
Plaintiff filed timely notice of appeal.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2021).
III. Proof of Service
Plaintiff argues the trial court erred in dismissing his complaint because
Defendant was properly served according to Rule 4(j)(1)(d) of the North Carolina
Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 4 (2021). He asserts the trial
court failed to find and apply a presumption of valid service, because Defendant’s
purported signature was contained on the UPS “Proof of Delivery” receipt.
-3-
Plaintiff also asserts Rule 4(j2)(2) prevents Defendant from pleading the
statute of limitation as a defense, because the action was commenced before the
period of limitation expired. Id.
A. Standard of Review
“We review de novo questions of law implicated by . . . a motion to dismiss for
insufficiency of service of process.” New Hanover Cty. Child Support Enf’t ex rel.
Beatty v. Greenfield, 219 N.C. App. 531, 533, 723 S.E.2d 790, 792 (2012).
B. Analysis
“The purpose of a summons is to give notice to a person to appear at a certain
place and time to answer a complaint against him.” Stinchcomb v. Presbyterian Med.
Care Corp., 211 N.C. App. 556, 562, 710 S.E.2d 320, 325 (2011) (citation and quotation
marks omitted).
“In order for a summons to serve as proper notification, it must be issued and
served in the manner [as is] prescribed by statute.” Id. (citation and quotation marks
omitted); Fender v. Deaton, 130 N.C. App. 657, 659, 503 S.E.2d 707, 708 (1998) (“[I]t
is well established that a court may only obtain personal jurisdiction over a defendant
by the issuance of summons and service of process by one of the statutorily specified
methods.”) (citation omitted).
A plaintiff’s failure to comply with the statutory requirements for service and
process will not cure procedural defects, including a defendant’s actual notice of a
lawsuit. Ryals v. Hall-Lane Moving & Storage Co., 122 N.C. App. 242, 247, 468
-4-
S.E.2d 600, 604 (1996) (“It is well-settled that process must be issued and served in
the manner prescribed by statute, and failure to do so makes the service invalid, even
though a defendant had actual notice of the lawsuit.”) (citations omitted).
Long ago, this Court stated, “a person relying on the service of a notice by mail
must show strict compliance with the requirements of the statute.” In re Appeal of
Harris, 273 N.C. 20, 24, 159 S.E.2d 539, 543 (1968) (citation and internal quotation
marks omitted); Fulton v. Mickle, 134 N.C. App. 620, 623, 518 S.E.2d 518, 521 (1999).
Our statutes provide several options for the acceptable manner of service of
process. One option for serving a “natural person” is to: “deposit [ ] with a designated
delivery service . . . a copy of the summons and complaint, addressed to the party to
be served, delivering to the addressee, and obtaining a delivery receipt.” N.C. Gen.
Stat. § 1A-1, Rule 4(j)(1)(d). A delivery receipt “includes an electronic or facsimile
receipt.” Id.
1. Presumption of Valid Service
If the record demonstrates compliance with the statutory requirements for
service of process, such compliance raises a rebuttable presumption the service was
valid. Patton v. Vogel, 267 N.C. App. 254, 258, 833 S.E.2d 198, 202 (2019) (quoting
Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 491, 586 S.E.2d 791, 796 (2003)
(citations omitted)); see also Taylor v. Brinkman, 108 N.C. App. 767, 771, 425 S.E.2d
429, 432 (1993) (“The filing of an affidavit consistent with N.C. [Gen. Stat.] § 1–
-5-
75.10(4) raises a rebuttable presumption of valid service consistent with N.C. [Gen.
Stat.] § 1A–1, Rule 4(j)(1)(c).”) (citation omitted).
In Patton, the plaintiff first mailed a copy of the complaint and summons via
FedEx to an address listed on the accident report. Id. at 255, 833 S.E.2d at 200. The
attempted service was returned to plaintiff and indicated the delivery address was
vacant. Id. When plaintiff mailed another copy to an address discovered by a private
investigator, plaintiff received a signed receipt of delivery from someone named “R.
Price.” Id. The defendant in Patton filed an affidavit with her motion to dismiss for
improper service, averring: (1) she lived at the address listed on the accident report
“on and after the day of the accident[;]” (2) had “neither lived nor worked” at the
address supposedly discovered by the private investigator; (3) “had not authorized ‘R.
Price’ or anyone else to accept legal papers for her[;]” and, (4) “had never been served
with a copy of the summons, complaint, or amended complaint.” Id. at 255-56, 833
S.E.2d at 200-01.
On appeal, the plaintiff in Patton argued the defendant’s “single affidavit
averring she did not reside” at the address discovered by the private investigator did
not “overcome the presumption” she lived there. Id. at 258, 833 S.E.2d at 202. This
Court held defendant had overcome the presumption because the plaintiff had
“produced no evidence other than the ‘R. Price’ receipt from FedEx to support the
presumption of effective service.” Id.
-6-
The facts before us are very similar to those in Patton. Defendant produced
two sworn affidavits: (1) one averring he did not live at the address at the time the
complaint and summons were delivered and attached paystubs indicating his current
address; and, (2) another from the current occupant averring Defendant did not live
at the address listed on the UPS delivery receipt on the date the summons and
complaint were delivered. Those two affidavits, taken together, provided sufficient
evidence for the trial court to find and conclude Defendant was not timely served
according to the statute. Id. Plaintiff’s argument is overruled.
2. Statute of Limitation Defense Pursuant to N.C. R. Civ. Pro. 4(j2)(2)
Plaintiff’s argument asserting Rule 4(j2)(2) prevents Defendant from pleading
the statute of limitation as a defense is similarly without merit. The application of
Rule 4(j2)(2) is explained in Taylor:
If the plaintiff, in seeking judgment by default, presents an affidavit giving rise to the presumption of valid service and this presumption is later rebutted, “the statute of limitation may not be pleaded as a defense if the action was initially commenced within the period of limitation and service of process is completed within 60 days from the date the service is declared invalid.”
Because Taylor was not seeking the imposition of a judgment by default, the sixty-day saving provision of Rule 4(j2)(2) was not applicable.
Taylor, 108 N.C. App. at 771, 425 S.E.2d at 432 (emphasis supplied) (citations
omitted).
-7-
Here, Plaintiff was not seeking judgment by default, as Defendant had timely
moved to dismiss the complaint for improper service. Rule 4(j2)(2) is not applicable,
and the expiration of the statute of limitation bars Plaintiff from bringing the claim
again. Id.; see also United States v. Locke, 471 U.S. 84, 101, 85 L.Ed.2d 64, 80 (1985)
(“[S]tatutes of limitations [ ] necessarily operate harshly and arbitrarily with respect
to individuals who fall just on the other side of them, but if the concept of a [statute
of limitations] is to have any content, the deadline must be enforced.”). Plaintiff’s
argument is overruled.
IV. Conclusion
The trial court properly concluded Plaintiff had failed to timely perfect service
upon Defendant. The two affidavits Defendant submitted with his motion to dismiss
sufficiently rebutted any presumption the service was valid. N.C. Gen. Stat. § 1A-1,
Rule 4(j)(1)(d); Patton, 267 N.C. App. at 258, 833 S.E.2d at 202.
The trial court also properly dismissed Plaintiff’s claim with prejudice, because
Plaintiff was not seeking a default judgment and Rule 4(j2)(2) of the North Carolina
Rules of Civil Procedure does not apply. N.C. Gen. Stat. § 1A-1, Rule 4(j2)(2); Taylor,
108 N.C. App. at 771, 425 S.E.2d at 432. The statute of limitation bars Plaintiff from
renewing his claims. Id.; Locke, 471 U.S. at 101, 85 L.Ed.2d at 80. The order of the
trial court is affirmed. It is so ordered.
AFFIRMED.
-8-
Judges ZACHARY and GORE concur.
-9-