Ace Hardware was long advertised as “the place with the helpful hardware man,” but even well-stocked aisles of tools and DIY accessories have their limitations. In Pro-Tops, Inc. v. Yuriy Maksimenko, 2025 NCBC 4, it turned out that a private process server – decked out in a helpful-looking red vest or not – did not effectively serve process on a defendant who had agreed to meet there to receive it.
As the Business Court pointed out, it’s not that service could never be made on an individual within North Carolina by a private server, but that Rule 4 only allows for that result in special circumstances.
Judge Earp pointed out that N.C. R. Civ. P. 4(a) allows service on an individual in North Carolina by a “proper person [who] shall be the sheriff of the county where service is to be made or some other person duly authorized to serve summons.” Id. ¶ 14 (quoting Rule 4(a)).
But, a private process server is only “authorized” under State law in “scenarios where the sheriff is unable to fulfill the duties of a process server.” Id. ¶ 15 (quoting Locklear v. Cummings, 262 N.C. App. 588, 597-98 (2018)) A party’s subjective view that a sheriff’s office is unable to accomplish service still doesn’t allow use of a private server. Under Rule 4(h) only “the clerk of the issuing court” can do that upon a written affidavit showing there is no proper official capable of service, a proper official refuses to do it, or such official suffers from a conflict. Id.
In Pro-Tops, the hardware store service was ineffective because:
“there is no return of service or other filing in the record to indicate that the sheriff could not serve, or did not make diligent efforts to serve, [defendant] or that the Clerk of Court has duly appointed any private person . . . to serve process upon [defendant].”
Id. ¶ 17 (quoting Schwarz v. St. Jude Med., 2018 N.C. Super. LEXIS 502, at *5 (Jan. 16, 2018)).
The Business Court rejected plaintiff’s argument that this infirmity could be cured by defendant’s agreement to meet in person to accept service. And it also noted plaintiff had weeks of notice of the “service issue,” and could still obtain an alias and pluries summons. Id. ¶¶ 19-20.
Worth Noting
- The Court also declined plaintiff’s suggestion that it could simply quash the attempted service at Ace Hardware. Judge Earp reminded that “[a]bsent valid service of process, a court does not acquire personal jurisdiction over the defendant and the action must be dismissed.” Id. ¶ 21 (quoting Glover v. Farmer, 127 N.C. App. 488, 490 (1997)).
- We think you can’t write about hardware stores in our neck of the woods without drawing attention to the David Wilcox gem, East Asheville Hardware. Enjoy!
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