Henry v. Morgan, 264 N.C. App. 363 (2019)


Defendant's motion to dismiss

  • When a plaintiff’s attempts to find and serve a defendant do not meet the due diligence standard described in Rule 4(j1) of the North Carolina Rules of Civil Procedure, service by process of publication is improper and dismissal is appropriate.” Sl. Op. at 1.
  • The exercise of due diligence to locate and serve defendant is a conclusion of law that is reviewed de novo. Due diligence does not involve a “restrictive mandatory checklist” but does require the plaintiff to “use all resources reasonably available to her in attempting to locate defendants.” Sl. Op. at 4-5. It is examined on a case-by-case basis. The focus is not on what plaintiff did not do but on what plaintiff did do. Here, Plaintiff’s attempts to serve defendant at one address where defendant did not reside and one general google search was insufficient when readily available resources were left unexplored, such as a DMV or public records search (Defendant’s driver’s license states his correct address) or request of defendant’s attorney for defendant’s address or whether he would accept service.
Civil Cases with Application to Child Welfare
Service of Process
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