May 7, 1993
The Honorable Estie Bennington, Clerk Guilford County Superior Court Guilford County Courthouse Drawer T-5 Greensboro, NC 27402
RE: Advisory Opinion in Response to Request by Estie Bennington, Clerk of Superior Court of Guilford County, to Services to State Agencies Section, Administrative Division, of the Attorney General’s Office for Interpretation of the Provisions of Rule 4(h) of the North Carolina Rules of Civil Procedure.
Dear Ms. Bennington:
We are writing in response to your letter of April 30, 1993, by which you sought an interpretation of the provisions of Rule 4(h) of the North Carolina Rules of Civil Procedure. As we understand it, Central Carolina Legal Services, Inc., and Courtwatch of North Carolina, Inc., have received a $23,000.00 grant to fund a private process server program for use in child support cases. These organizations have hired an administrator for this program and have come to your office seeking appointment of private process servers for this purpose. You have raised questions concerning your authority to make such appointments.
The general rule in North Carolina is that only the sheriff of the county where service is to be made may make service of process within the State. See Rule 4(a) of the North Carolina Rules of Civil Procedure. An exception to this rule, however, is contained in Rule 4(h) of the Rules of Civil Procedure. That Rule states:
If at any time there is not in a county a proper officer, capable of executing process, to whom summonses or other process can be delivered for service, or if a proper officer refuses or neglects to executive such process, or if such officer is a party to or otherwise interested in the action or proceeding, the clerk of the issuing court, upon the facts being verified before him by written affidavit of the plaintiff or his agent or attorney, shall appoint some suitable person who, after he accepts such process for service, shall execute such process in the same manner, with like effect, and subject to the same liabilities, as if such person were a proper officer regularly serving process in that county. (Emphasis added.)
It is our understanding that the portion of this Rule emphasized above, and particularly the word "neglects," are at the heart of your concerns.
Enclosed with your letter, you provided a copy of a memorandum to you from Stanly Sprague of Central Carolina Legal Services. In that memorandum, Mr. Sprague discusses various interpretations given the word "neglect" by a number of courts from North Carolina and elsewhere. While we agree that the word "neglect" can be given differing shades of meaning, these meanings all share a common concept: the careless or indifferent failure to take some action. Indeed, the dictionary definition of "neglect" centers around this concept; The Random House Dictionary of the English Language (1966) defines "neglect" as follows:
1. to pay no attention or too little attention to; disregard or slight. 2. to be remiss in care for or treatment of. 3. to omit, through indifference or carelessness. 4. to fail to carry (orders, duties, etc.)
In construing the provisions of a statute, words are to be given their usual and ordinary meaning unless specific statutory language or context requires otherwise. It is our opinion, then, that "neglect," as used in Rule 4(h), means the failure of the sheriff to attempt to properly serve a summons or other process by reason of heedlessness, indifference, or carelessness. In other words, if a summons is allowed to simply sit on a desk in the sheriff’s office, or if the sheriff’s office does not make a reasonable effort to see that a summons is served, then the sheriff will have neglected his duty to serve the summons.
The sheriff, however, cannot be said to have neglected his duty if he makes a reasonable, good faith effort to serve a summons but is unable to do so because, after due and diligent search, neither the defendant nor any other person who can receive service for the defendant can be located. Such failure to serve is not the result of neglect, but rather of circumstances beyond the control of the sheriff. It is in no way an omission of action; rather, it is a clear attempt to act that cannot be completed. A sheriff simply cannot be said to have neglected — that is, disregarded or carelessly failed to act upon — his duty to serve process when he has, in fact, taken reasonable, appropriate, and good faith steps in furtherance of that duty. The sheriff may have been unsuccessful in completing his duty, but he has not neglected it.
This means, in our opinion, that before you as clerk can appoint a private process server pursuant to Rule 4(h), you must be presented with an affidavit that shows that the sheriff either has refused to make service or has made no reasonable attempt to serve process. You provided us with a copy of the affidavit that Central Carolina Legal Services has proposed to use in this regard. It is our opinion that this affidavit does not satisfy the requirements of Rule 4(h) because it shows only that the sheriff has not effected service, even though he may diligently have tried to do so.
We trust that this fully answers your questions on this matter. Please do not hesitate to contact us if we can be of further assistance.
Ann Reed Senior Deputy Attorney General
Alexander McC. Peters Assistant Attorney General