N.C. Business Ct.: Pro-Tops v. Maksimenko_- Service of Process Short Cut is Improper

Summary:

Pro-Tops sought to effectuate service on Maksimenko through a private process server on six different occasions without success. The personal process server contacted Maksimenko, who denied avoiding service. On December 19, 2024, the private process server met with Maksimenko at an agreed location,  providing copies of the complaint and summons. Maksimenko moved to dismiss under Rule 12(b)(5) for improper service of process.

The Business Court granted Maksimenko’s motion to dismiss, noting that Plaintiff’s affidavit of service did not indicate service by the sheriff had first been attempted or that the sheriff was otherwise unable to serve the summons or complaint. Citing precedent, the Court noted that “use of a private process server is limited by statute to scenarios where the sheriff is unable to fulfill the duties of a process server.” Finding that service was not properly effectuated on Maksimenko, Plaintiff’s case was dismissed.

In a decision that reinforces the rigid contours of North Carolina’s civil procedure—and the potential pitfalls for creditors moving too quickly—the Business Court dismissed a suit without prejudice against an individual defendant due to improper service under Rule 12(b)(5), despite undisputed actual notice of the action.

While Pro-Tops, Inc. v. Maksimenko arises from a commercial trade secrets dispute rather than a consumer or bankruptcy case, the ruling has important implications for both areas—particularly as consumers continue to face lawsuits from creditors, landlords, and collectors increasingly represented by large firms seeking swift judgment in North Carolina courts.

Commentary:

While not a consumer case per se, Pro-Tops v. Maksimenko serves as a reminder that North Carolina courts—particularly its Business Court—demand strict adherence to service of process rules. For consumer advocates and bankruptcy attorneys, the case offers another procedural arrow in the quiver to defend against improperly served judgments, which, if timely challenged, may be dismissed or voided altogether.

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