Blaylock v. AKG N. Am.

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-549
No. COA21-607
Filed 16 August 2022
Alamance County, No. 19 CVS 2686
GARY W. BLAYLOCK, Plaintiff,
v.
AKG NORTH AMERICA, Defendant.
Appeal by Plaintiff from order entered 11 December 2020 by Judge John M.
Dunlow in Alamance County Superior Court. Heard in the Court of Appeals 22
March 2022.
Gary Blaylock, Plaintiff-Appellant, pro se.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Zebulon D.
Anderson and David R. Ortiz, for Defendant-Appellee.
JACKSON, Judge.
¶1 Plaintiff, Gary Blaylock, appeals from an order granting Defendant AKG North
America, Inc.’s motions to dismiss under North Carolina Rules of Civil Procedure
12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6). After careful review, we affirm.
I. Background
¶2 Gary Blaylock (“Plaintiff”) was hired by AKG North America (“Defendant”) in
2017. Plaintiff alleges that Defendant fired him for repeatedly complaining about the
“sexual harassment, hostile work environment, and absence of Supervisors [sic]
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2022-NCCOA-549
Opinion of the Court
attempt to resolve the issues.”
¶3 On 18 December 2019, Plaintiff filed his original complaint in Alamance
County Superior Court and the summons was issued that day. On 23 December 2019,
Plaintiff’s attempt to serve Defendant failed when the Alamance County Sheriff
returned the summons, noting that Defendant had not been served because “[t]he
address given is in Orange Co[unty].” Thereafter, in the nearly 12 months this case
was pending, Plaintiff never properly served Defendant. On 17 January 2020,
Defendant removed the action to the Middle District of North Carolina based on
federal claims alleged in Plaintiff’s complaint, filing notices of removal in both the
state and federal courts. In the notice of removal before the federal court, Defendant
raised, inter alia, that Plaintiff had not effected service of process.
¶4 After removal, on 7 February 2020, Defendant sought an extension of time to
answer or otherwise respond to the Complaint, explaining that it had not been served
by Plaintiff. Plaintiff, however, filed a motion to remand the action back to state
court. Defendant sought a second extension of time on 5 March 2020, again
explaining that it had not yet been served by Plaintiff. Thereafter, Defendant filed a
brief in opposition to Plaintiff’s motion to remand, arguing that removal was proper
for the reasons stated in its notice of removal, namely the federal claims in Plaintiff’s
complaint. However, in a hearing before the federal court, Plaintiff “disavow[ed] any
reliance whatsoever on federal law in his Complaint,” and the motion to remand was
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granted.
¶5 On 5 August 2020, Plaintiff mailed the complaint and summons to Defendant’s
litigation counsel, and the complaint was received by counsel on 10 August 2020.
However, on 7 August 2020, Defendant had filed a motion to dismiss the original
complaint under Rule 12(b). In response to this motion, Plaintiff amended his
complaint on 12 August 2020. Defendant’s litigation counsel received this amended
complaint at some point between 12 August and 18 August 2020.1 On 8 September
2020, Defendant filed a motion to dismiss the amended complaint on the same Rule
12(b) grounds.
¶6 On 8 December 2020, a hearing was conducted on Defendant’s motion to
dismiss. Plaintiff filed a motion to amend his complaint again that same morning,
but the trial court informed Plaintiff that the motion was not properly before the
court. Defendant’s counsel told the trial court that Plaintiff was on notice of the
defective service because Defendant raised the absence of service in its filings,
including in both motions for extension of time and the notice of removal in federal
court, and “at all times we’ve made it clear to Mr. Blaylock and the Court . . . that
there hasn’t been service[.]” After hearing from both parties, on 11 December 2020,
1 The certificate of service in the amended complaint indicates it was served by hand
on 12 August, but Defendant alleges that its litigation counsel received the amended
complaint by email on 17 August and by certified mail on 18 August 2020.
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2022-NCCOA-549
Opinion of the Court
the trial court granted Defendant’s motion to dismiss under Rules 12(b)(2), 12(b)(4),
and 12(b)(5), and under 12(b)(6) as an “additional and independent basis for
dismissal[.]”
¶7 Plaintiff appealed to this Court on 16 April 2021.
II. Jurisdiction
¶8 We must first address whether we have jurisdiction to hear this appeal.
Although Plaintiff’s notice of appeal was filed greater than four months after the trial
court’s order was entered, which ordinarily would be untimely under North Carolina
Rule of Appellate Procedure 3(c), the record on appeal does not indicate the date the
order was served or contain a certificate of service.
¶9 It is true that “[t]he appellant has the burden to see that all necessary papers
are before the appellate court.” Ribble v. Ribble, 180 N.C. App. 341, 342, 637 S.E.2d
239, 240 (2006) (internal quotation and citation omitted). However, in similar
circumstances, we have held that “where there is no certificate of service in the record
showing when appellant was served with the trial court judgment, appellee must
show that appellant received actual notice of the judgment more than thirty days
before filing notice of appeal in order to warrant dismissal of the appeal.” In re
Duvall, 268 N.C. App. 14, 17, 834 S.E.2d 177, 180 (2019) (internal marks and citation
omitted). Therefore, “unless the appellee argues that the appeal is untimely, and
offers proof of actual notice, we may not dismiss.” Id. (internal quotation and citation
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omitted). Here, Defendant-Appellee fails to argue the appeal is untimely or offer
proof of actual notice. In fact, Defendant concedes that “Plaintiff timely appealed.”
Therefore, Defendant has waived Plaintiff’s failure to include proof of service in the
record, and this appeal is properly before us.
III. Discussion
¶ 10 Plaintiff argues that the trial court erred by (1) dismissing his claims for lack
of personal jurisdiction, (2) dismissing his claims for failure to state a claim, (3) ruling
on the merits of his claims after finding no personal jurisdiction, (4) dismissing his
complaint without considering lesser remedies, and (5) not allowing him to amend
his complaint a second time. Because we hold that the trial court properly concluded
that it did not have personal jurisdiction over Defendant and was required to dismiss
the action, we need not address Defendant’s other arguments.
A. Standard of Review
¶ 11 “This Court reviews questions of law implicated by a motion to dismiss for
insufficiency of service of process de novo.” Patton v. Vogel, 267 N.C. App. 254, 256,
833 S.E.2d 198, 201 (2019) (cleaned up). “On a motion to dismiss for insufficiency of
process where the trial court enters an order without making findings of fact, our
review is limited to determining whether, as a matter of law, the manner of service
of process was correct.” Id. at 257, 833 S.E.2d at 201 (internal quotation and citation
omitted).
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B. Dismissal for Lack of Personal Jurisdiction
¶ 12 Plaintiff first argues that the trial court erred by dismissing his claims for lack
of personal jurisdiction because personal jurisdiction was present and this argument
was waived by Defendant. We disagree.
¶ 13 “Absent valid service of process, a court does not acquire personal jurisdiction
over the defendant and the action must be dismissed.” Stewart v. Shipley, 264 N.C.
App. 241, 244, 825 S.E.2d 684, 686 (2019) (internal quotation and citation omitted).
The methods for proper service of process are established by Rule 4 of the North
Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, R. 4 (2021). A corporation
may be served by mail or delivery to an officer, director, managing agent, or
authorized service agent. Id. § 1A-1, R. 4(j)(6). Rule 4 must be “strictly enforced[,]”
Grimsley v. Nelson, 342 N.C. 542, 545, 467 S.E.2d 92, 94 (1996), and “actual notice”
cannot cure insufficient service of process, Shipley, 264 N.C. App. at 244, 825 S.E.2d
at 686 (“While a defective service of process may give the defending party sufficient
and actual notice of the proceedings, such actual notice does not give the court
jurisdiction over the party.”) (internal quotation and citation omitted)).
¶ 14 Plaintiff repeatedly admits that Defendant was not timely served in his brief.2
2 Plaintiff’s brief contains the following: “AKG NORTH AMERICA . . . was not
served[;]” “Defendant, AKG, had not been served[;]” and “[t]here is no indication that the
Defendant was at any point brought into the action through service of process prior to
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Plaintiff takes the position that Defendant, who was unserved and therefore not
required to respond to the suit, waived this jurisdictional argument by appearing and
filing motions in court. Specifically, Plaintiff argues that because Defendant (1)
removed the case to federal court and (2) “sought and was granted two extensions of
time, there must be a submission to the jurisdiction of the court in order for the court
to grant any motion filed by the unserved Defendant[.]” We disagree with Plaintiff’s
position that that the filing of any motion or notice in court constitutes a waiver of
service of process and consent to the court’s jurisdiction.
¶ 15 Our General Statutes provide:
A court of this State having jurisdiction of the subject
matter may, without serving a summons upon him,
exercise jurisdiction in an action over a person:
(1) Who makes a general appearance in an action;
provided, that obtaining an extension of time within which
to answer or otherwise plead shall not be considered a
general appearance[.]
N.C. Gen. Stat. § 1-75.7(1) (2021). Therefore, if a defendant makes a “general
appearance,” the trial court has personal jurisdiction, even if service of process was
defective. Alexiou v. O.R.I.P., Ltd., 36 N.C. App. 246, 247, 243 S.E.2d 412, 413, cert.
denied, 295 N.C. 465, 246 S.E.2d 215 (1978). Here, as an initial matter and
removal; instead, it appears that the Defendant learned of its possible involvement through
other means.”
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notwithstanding the fact that the motions were filed in federal court, Plaintiff’s
argument that filing for extensions of time constitutes a general appearance is
expressly contradicted by the statute. Therefore, whether Defendant’s removal of the
case to federal court constituted a general appearance is primarily at issue.
¶ 16 Our “[c]ourts have interpreted the concept of ‘general appearance’ liberally.”
Woods v. Billy’s Auto., 174 N.C. App. 808, 813, 622 S.E.2d 193, 197 (2005). “[I]f the
defendant by motion or otherwise invokes the adjudicatory powers of the court in any
other matter not directly related to the questions of jurisdiction, he has made a
general appearance and has submitted himself to the jurisdiction of the court whether
he intended to or not.” Swenson v. Thibaut, 39 N.C. App. 77, 89, 250 S.E.2d 279, 288
(1978). See also Simms v. Mason’s Stores, Inc., 285 N.C. 145, 151, 203 S.E.2d 769,
773 (1974) (holding that that if a party “invoked the judgment of the court for any []
purpose [other than contesting service of process,] he made a general appearance and
by so doing he submitted himself to the jurisdiction of the court”) (subsequently
amended by statute in N.C. Gen. Stat § 1-75.7(1) to allow for extensions of time). “In
short, an appearance for any purpose other than to question the jurisdiction of the
court is general.” Billy’s Auto., 174 N.C. App. at 813, 622 S.E.2d at 197 (internal
marks and citation omitted). See also In re Blalock, 233 N.C. 493, 504, 64 S.E.2d 848,
856 (1951) (“[A] general appearance is one whereby the defendant submits his person
to the jurisdiction of the court by invoking the judgment of the court in any manner
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on any question other than that of the jurisdiction of the court over his person.”).
¶ 17 In order to constitute a general appearance, “[t]he appearance must be for a
purpose in the cause, not a collateral purpose.” Bullard v. Bader, 117 N.C. App. 299,
301, 450 S.E.2d 757, 759 (1994) (“The court will examine whether the defendant
asked for or received some relief in the cause, participated in some step taken therein,
or somehow became an actor in the cause.”) (citation omitted). In cases where this
Court has found a general appearance, typically, the lower court’s discretion was
invoked by the moving party or the court’s authority was assented to without
objection. See, e.g., Barnes v. Wells, 165 N.C. App. 575, 579-580, 599 S.E.2d 585, 588-
589 (2004) (collecting cases); Bumgardner v. Bumgardner, 113 N.C. App. 314, 319,
438 S.E.2d 471, 474 (1994) (holding that the defendant generally appeared by
participating in a divorce hearing, represented by counsel, without objection);
Bullard, 117 N.C. App. at 301-02, 450 S.E.2d at 759 (holding that the defendant made
a general appearance by submitting financial documents and a letter in a child
support case because “Defendant submitted these documents for a purpose in the
cause, and by so doing sought affirmative relief from the court on the issues of child
support and visitation”); Humphrey v. Sinnott, 84 N.C. App. 263, 265, 352 S.E.2d 443,
445 (1987) (holding that the defendant’s motion to transfer venue before asserting
jurisdictional defenses “necessarily invoked the adjudicatory and discretionary power
of the court as to the relief which he requested[,]” thereby constituting a general
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appearance). But see Ryals v. Hall-Lane Moving & Storage Co., 122 N.C. App. 242,
248, 468 S.E.2d 600, 604 (1996) (holding where the defendants “promptly alerted
plaintiff to the jurisdictional problems” in their answer and then “engaged in
discovery[,]” “[l]aw nor equity permits such actions alone to be considered a general
appearance” and the plaintiff “had ample opportunity to cure any jurisdictional
defects and was not unfairly prejudiced by defendants’ actions”).
¶ 18 The parties do not point to any binding North Carolina precedent, nor have we
found any, addressing whether removal to federal court is a general appearance. This
is therefore an issue of first impression.
¶ 19 “Removal” is a federal process that allows a state civil action to be removed to
a federal district court if it has original jurisdiction. 28 U.S.C. § 1441(a) (“[A]ny civil
action brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the place
where such action is pending.”). Therefore, removal of a state action to a federal court
is necessarily a question of jurisdiction.
¶ 20 Importantly, under the federal statute, defendants can remove a case to federal
court by their own election, if the case could have been filed in federal court to begin
with, and therefore, state courts do not actually exercise any discretion or
adjudicatory authority in determining whether a case is removed to federal court or
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not. Once a defendant files a notice of removal with the state court, all further
proceedings take place in federal court. See N.C. Gen. Stat. § 1A-1, R. 12(a)(2) (2021)
(“Upon the filing in a district court of the United States of a petition for the removal
of a civil action or proceeding from a court in this State and the filing of a copy of the
petition in the State court, the State court shall proceed no further therein unless and
until the case is remanded.”). See also 28 U.S.C. § 1446(d) (“Promptly after the filing
of such notice of removal of a civil action the defendant or defendants shall give
written notice thereof to all adverse parties and shall file a copy of the notice with the
clerk of such State court, which shall effect the removal and the State court shall
proceed no further unless and until the case is remanded.”).
¶ 21 Because the right of removal is governed by federal statute, the federal court
determines if original jurisdiction has been properly established by the defendant.
See Kerley v. Standard Oil Co., 224 N.C. 465, 466, 31 S.E.2d 438, 439 (1944) (“The
Federal Courts have final authority in matters of removal[.]”). See also Comm. of
Road Improvement v. St. Louis Sw. Ry. Co., 257 U.S. 547, 557-58 (1922) (“The
question of removal under the federal statute is one for the consideration of the
federal court. It is not concluded by the view of a state court as to what is a suit
within the statute.”); Carden v. Owle Constr., LLC, 218 N.C. App. 179, 183, 720
S.E.2d 825, 828 (2012) (“Removal of an action from a state court to a federal court is
governed by federal law. The determination of whether a case is removable is a
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determination left to the federal court.”).
¶ 22 Therefore, a North Carolina trial court does not exercise any adjudicatory or
discretionary power when presented with a notice of removal. Consequently, filing
such notice cannot constitute a “general appearance” by a defendant. Because we
conclude that Defendant’s filing of a notice removal was not a general appearance,
we reject Plaintiff’s argument that service of process defects were waived by
Defendant.
¶ 23 Plaintiff next argues that, even if service of process was not waived by
Defendant, he eventually cured the defect in service by serving Defendant’s litigation
counsel. We disagree.
¶ 24 As described above, Plaintiff did not serve Defendant properly after filing the
original complaint on 18 December 2019. The Sheriff returned the summons to
Plaintiff on 23 December 2019, noting that Defendant was not served. After the case
was remanded to state court, Plaintiff had a third-party mail the summons3 and
complaint to Defendant’s litigation counsel on 5 August 2020, nearly eight months
after the complaint was filed. Thereafter, Plaintiff amended his complaint on 12
August 2020 and served the amended complaint upon Defendant’s litigation counsel
on or around 12 August 2020. Plaintiff does not cite any binding authority to support
3 Nothing in the record indicates whether the original summons was ever reissued.
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his argument that Defendant’s litigation counsel was authorized to accept service on
behalf of Defendant. Nonetheless, even assuming Defendant’s litigation counsel was
a proper party upon which to effectuate service on the corporation, Plaintiff’s
argument is fruitless. Plaintiff’s second attempt to serve the original complaint to
Defendant’s counsel was well beyond the time allotted to serve process or seek an
extension under Rule 4(d). Therefore, Plaintiff failed to serve Defendant and then
subsequently failed to cure the defective service in a timely manner.
C. Dismissal for Failure to State a Claim
¶ 25 Because we affirm the trial court’s dismissal for lack of personal jurisdiction
and improper service of process pursuant to Rules 12(b)(2) and (b)(5), conclusions of
the trial court that were separate and independent bases for dismissing Plaintiff’s
claims, we need not address whether dismissal was also proper under Defendant’s
Rule 12(b)(6) argument.
IV. Conclusion
¶ 26 Because Defendant was never properly served with service of process and did
not generally appear before the trial court, the trial court properly concluded that it
did not have personal jurisdiction over Defendant and was thereby required to
dismiss the action. The trial court’s order is therefore affirmed.
AFFIRMED.
Chief Judge STROUD and Judge HAMPSON concur.