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Dixon v. Hill11/1/2005
ch refusal is nothing more than a refusal to admit a fact. It is not evidence of any fact except the fact of refusal.").
Finally, the Church argues that summary judgment is improper as to the Church because plaintiffs have failed to present evidence that Barber was acting as an agent of the Church. Plaintiffs' Second Request for Admissions asked the Church to admit that Barber was acting as an agent for the Church when performing the acts and omissions alleged in the complaint. Rule 36(a) of the Rules of Civil Procedure provides that each request "is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection . . . ." It is undisputed that the Church neither responded nor objected to the Second Request forAdmissions. Moreover, the record contains no indication that the Church ever moved to withdraw the admissions resulting from its failure to respond. See N.C.R. Civ. P. 36(b) ("Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.").
The Church argues, however, that the Second Request for Admissions was not properly served on the Church. The certificate of service dated 22 May 2001 indicated service by mailing to "Bishop Thomas L. Hill" and the "Palmetto Born Again Church of Christ (Apostolic)" at a post office box in Lumberton, North Carolina. The record also includes a return receipt attached to the certificate of service evidencing receipt by Thomas L. Hill on 29 May 2001. The Church does not argue that the address was the wrong address for the Church or that the Church failed to receive the Second Request for Admissions. Instead, the Church contends that proof of service was insufficient because plaintiffs failed to offer proof that Mr. Hill was an officer, director, or agent of the Church as set out in Rule 4(j)(6) and (8) of the Rules of Civil Procedure.
Plaintiffs were obligated to serve the Second Request for Admissions in accordance with Rule 5 of the Rules of Civil Procedure. Rule 5(b) provides:
With respect to all pleadings subsequent to the original complaint and other papers required or permitted to be served, service with due return may be made in the manner provided for service and return of process in Rule 4 and may be made upon either the party or, unless service upon the party personally is ordered by the court, upon the party'sattorney of record. With respect to such other pleadings and papers, service upon the attorney or upon a party may also be made by delivering a copy to the party or by mailing it to the party at the party's last known address or, if no address is known, by filing it with the clerk of court.
(Emphasis added.) As the plain language of Rule 5(b) indicates _ contrary to the Church's contention _ a party is not required to comply with Rule 4 in serving documents subsequent to the complaint. Instead, Rule 5(b) specifically permits parties to serve another party by mail or delivery to that party's attorney or, if unrepresented, to that party.
Because the trial court had allowed the Church's attorney to withdraw, plaintiffs were required to serve the Church directly. See 1 James W. Moore et al., Moore's Federal Practice ยง 5.04 (3d ed. 1997) (" f a party is no longer represented by an attorney in a particular action, service must be made directly on the party."). Rule 5(b) authorized plaintiffs to serve the Church by mailing the Second Request for Admissions to the Church at the Church's last known address. Once plaintiffs submitted a certific
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