NonSequitur Show Hearing: Presumption of Service
While I have not yet received an official transcript of the hearing on Mr. Curtis’ motion to set aside the partial default judgement there were significant things that apparently the judge said I think are worth having some additional commentary upon. This is all based upon unofficial notes taken by people who listened to the hearing and up for revision once we get the official transcripts. I am also not an attorney, and I make no statement of fact here nor provide any legal advice of any kind. Everything contained herein is provisionally based upon what has been told to me and up for correction, reproof and revision.
My contention has always been that Mr. Curtis was properly served by G.S. 1A-1 Rule 4(j)(1)(c) of the North Carolina Rules of Civil Procedure (NCRCP), which raised the presumption of service as per Rule 4(j2)(2), and whereby a partial default judgement was obtained by Rule 55(b) NCRCP by Mr. Curtis’ failure to respond to the complaint within the time allotted by law. I also have maintained that proper service was obtained by certified mail, a copy of the summons and complaint were delivered to the post office for service by certified mail and was filed with affidavit, return receipt requested,and that the copy was in fact received as evidenced by the return receipt, with the attached original copy of the return receipt as per N.C. Gen. Stat. § 1-75.10(a)(4).
Under N.C. law the presumption of service is given when the conditions of Rule 4 have been met, which is rebuttable by the defense which means the defense has the burden of proof to show improper service, which in this case, is essentially as per Rule 60(b)(1); because of “mistake, inadvertence, surprise, or excusable neglect;”.
For over a year Mr. Curtis was operating under the defense that the presumption of service had arose, and that he believed that presumption was rebutted because he no longer lived at the address that he was served at…but that was until his Aug 24th, 2020 affidavit where he changed his defense from merely having rebutted presumption of service, but that presumption never arose because he had stated in that affidavit explicitly:
“5. I did not receive notice of this lawsuit from my mother. Rather. I received a YouTube link to a stream in which the plaintiff, Steve McRae, was discussing the lawsuit. When I first obtained a copy of the complaint several months later, I filed a motion to set aside the default judgment that had been entered against me.”
And there’s the rub. There is one of the more notable major contentions that Judge Gale had with Mr. Curtis’ testimony. Mr. Curtis had been recorded numerous times discussing just weeks in Discord about the “the original papers that I was served” ECF 35 (9)(b) and:
“Of course I responded to the lawsuit, not responding to it would be a dumb decision. So that’s going to be taking place in a couple weeks. There is a . . . I’m not going to speak to it any more aside from that but yet, it will be happening. We are set to rumble.” ECF 35 (8)(b).
Mr. Curtis had also explicitly stated that he had missed a filing deadline because of his own negligence:
“I missed a filing deadline because of something going on with, with on my side, not Steve’s. So that was my fault. But there . . . it’s going to be appealed.” ECF 35 (9)(a).
Mr. Curtis in a single statement claimed over a year later that he never actually received the service from his mom seems in stark contrast to his prior recorded statements that he in fact had the “original papers”. The reason why this is of notable importance is if in fact Mr. Curtis had not received papers from his mom, who in N.C. is presumed to be an agent upon signing for the certified mail with return receipt as then the presumption of service would not be raised and service would have been deemed improper. As both the judge and Mr. Curtis’ lawyer have I believe correctly noted, having “actual knowledge” is not in of itself sufficient to confer jurisdiction, but that is not what we have ever argued. We have never argued in the case that Mr. Curtis had proper service due to “actual knowledge”, but was in fact properly served by Rule 4 as he had received from his mom the “original papers”.
This is unofficial, as again, I have not yet received an official transcript…but I believe the question that Judge Gale asked Mr. Curtis’ attorney was:
Judge Gale (Unofficial): “Would you agree that even if he was living in Charlotte, if the papers were served upon his mother and she then promptly delivered those to Mr. Curtis so that he received the papers, with the presumption that Rule 4 allows, would that have been adequate service to convey personal jurisdiction?”
Mr. Curtis’ lawyer (unofficial): “I think that if Mr. Curtis had not rebutted the presumption of service that his mother is his agent and I think that he also under the law would have had to in fact receive the papers from her, a phone call for example wouldn’t suffice.”
Judge Gale (unofficial): “But I ask you the question is if the mother received them, signed the return receipt and then delivered the papers to Mr. Curtis and he received them would that have been adequate to convey personal jurisdiction?”
Mr. Curtis’s lawyer (unofficial): “I believe so yes.”
This is, to me, what the crux of how to determine if service was proper or not, and what it basically efficiently and succinctly trimmed down to. Did Mr. Curtis’ mom sign for the certified mail, return receipt, and then deliver those papers to Mr. Curtis as that would in fact convey personal jurisdiction. Contrary to what some who are following the case have erroneously claimed, where Mr. Curtis primarily lived is of no relevance whatsoever to if personal jurisdiction was conferred. In N.C. you can have more than one “usual place of abode”, and Ms. Curtis by signing by the certified mail legally raised the presumption that she is an agent by law of Mr. Curtis (Rule 4(j)(2), by which merely denying she is an agent fails to rebut, and delivering those papers to Mr. Curtis then personal jurisdiction was conferred and service was proper.¹ Mr. Curtis’ lawyer has been arguing to the court in the records that “actual knowledge”, such as a “phone call for example” wouldn’t suffice to confer personal jurisdiction and I believe that she would be correct if in fact that was such the case, however our argument to the court has always been that Mr. Curtis did in fact receive “original papers” from his mother soon after the service was issued on Aug 30th, 2019…not that he had “actual knowledge” and we are arguing proper service based upon that, but arguing that he was served properly per Rule 4 and the judge seems to agree that if Mr. Curtis did in fact receive papers then service was proper. Where he actually lived is of no relevance. It is pretty clear that the judge does not believe Mr. Curtis rebutted service and he that was willing to rule on during the hearing on that, if not for the inconsistencies in Mr. Curtis’ affidavits.
Judge (unofficial): “I would have to tell you, right now, uh, but for the august 24th affidavit, I would say that you’ve totally failed…“
The judge wants to have completeness of record to avoid any potential of appeal and because he can not just look past the glaringly diametrical statements of Mr. Curtis. Mr. Curtis talking about the “original papers” that he was served, a mere 3 weeks after the date of service, to which Mr. Curtis would have to try to rebut the presumption of service to then over a year later changing his defense to the presumption of service never even arose because he didn’t get the papers until “several months later”.
Judge (unofficial): “I’ve got to determine whether I believe his testimony that he did not receive the papers was credible or not.”
This is in order to minimize any chance of appeal by Mr. Curtis as well to investigate any possible charges of perjury to Mr. Curtis. The judge seems to want a “limited discovery” as to why Mr. Curtis has conflicting statements as well as contradictory affidavits from Mr. Curtis’ former boyfriend Mr. Potts who has sworn the court that Mr. Curtis never lived with him as Mr. Curtis has claimed…but that part of the story is for a future blog entry. Once again, however, the judge can not just simply overlook possible fraud being perpetrated upon the court and wants both Mr. Curtis and Mr. Potts deposed under oath as to why there are such conflicting stories in their affidavits and with internal inconsistencies and possible altering of evidence in Mr. Curtis’ own submissions to the court.
The judge seemingly has also issued a pretty stern warning to Mr. Curtis that the longer he chooses to ignore the partial default judgement the worse it is going to get…which to me is a pretty significant indication that he has no intention of vacating or setting aside the judgement. What it essentially comes down to is the credibility of Mr. Curtis when he states that he did not receive papers until “several months later” as opposed to his own statements on recordings that he did.
To that I merely just say: “In the original papers that I was served”
¹ “it is unrealistic to interpret Rule 4(d)(1) so that the person to be served only has one dwelling house or usual place of abode at which process may be left.” 4 Wright and Miller, Federal Practice and Procedure (1969), § 1096, p. 368.