Lusk v. Crawford Paint Co.

WELLS, Judge. Through his various assignments of error, plaintiff brings forward the questions of (1) whether the trial court correctly found that he had failed to comply with Rules 3, 4 and 11 of the Rules of Civil Procedure for failure “to properly and timely issue and serve process and complaint,” and (2) whether the trial court correctly found that plaintiff failed to comply with Rule 41 for “failure to timely prosecute” the action. We answer both questions in the negative and reverse. The record clearly shows that plaintiff did not violate or fail to comply with the provisions of Rules 3 or 4 in the manner in which he commenced his action or in the manner in which he accomplished service of process upon each defendant. See G.S. § 1A-1, Rules 3 and 4 of the Rules of Civil Procedure. The dispositive question before us is whether plaintiffs action was subject to dismissal for failure to “timely” serve his complaint, and whether the delay of the service of his complaint constituted failure to “timely” prosecute his action. Rules 3 and 4 do not contain a stated requirement as to the time within which a complaint must be served. In Childress v. Hospital Authority, 70 N.C. App. 281, 319 S.E.2d 329 (1984) and Hasty v. Carpenter, 40 N.C. App. 261, 252 S.E.2d 274 (1979), this Court has taken the position that the service of the complaint is not a part of “the chain of process” contemplated by Rule 4; thus, following that reasoning, there is no per se failure to comply with that rule in this case. In contrast, in Smith v. Quinn, 324 N.C. 316, 378 S.E.2d 28 (1989), our Supreme Court upheld the trial court’s dismissal of the plaintiff’s action where it appeared that plaintiff’s counsel deliberately withheld delivery of the summons to the sheriff so that there would be a delay of eight months in the defendant’s [298] learning of the action. The reasoning applied by the Court in that case was that the trial court “properly dismissed plaintiff’s action pursuant to Rule 41(b) based upon plaintiff’s violation of Rule 4(a) for the purpose of delay and in order to gain an unfair advantage [over the defendant].” (Emphasis added.) This Court has applied a similar standard in Jones v. Stone, 52 N.C. App. 502, 279 S.E.2d 13, disc, review denied, 304 N.C. 195, 285 S.E.2d 99 (1981) and Green v. Eure, 18 N.C. App. 671, 197 S.E.2d 599 (1973), for “failure to prosecute” under Rule 41(b), but with different results. “Dismissal for failure to prosecute is proper only [when] the plaintiff manifests an intention to thwart the progress of the action to its conclusion, or by some delaying tactic plaintiff fails to progress the action towards its conclusion.” Jones, supra, quoting Green, supra. We cannot conclude that the facts and circumstances of this case rise to the level of demonstrating an intent to thwart progress or to implement a delaying tactic. There appears to be no demonstrable intent here, but only arguable inadvertence or neglect of counsel. We deem it appropriate to suggest that this case may demonstrate the need for our Legislature to re-examine the provisions of Rules 3 and 4 with respect to the time requirements for service of the complaint in civil actions. For the reasons stated, the order of the trial court is reversed and this case is remanded to the trial court for further appropriate proceedings. Reversed and • remanded. Judges Arnold and Eagles concur.