BIOMILQ, INC. v. GUILIANO, 2023 NCBC 91A

STATE OF NORTH CAROLINA
ORANGE COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22 CVS 255
BIOMILQ, INC.,
Plaintiff and
Counterclaim Defendant,
v.
SHAYNE GUILIANO and 108LABS,
LLC,
Defendants and
Counterclaim Plaintiffs,
v.
LEILA STRICKLAND; MICHELLE
EGGER; BREAKTHROUGH
ENERGY VENTURES, LLC; BEV
JOHN DOES; BIOMILQ JOHN
DOES; and GOODWIN PROCTER
LLP,
Counterclaim Defendants.
AMENDED1 ORDER AND OPINION
ON GOODWIN PROCTER LLP’S
MOTION TO DISMISS SECOND
AMENDED COUNTERCLAIMS AND
THIRD-PARTY CLAIM AND
BIOMILQ AND LEILA
STRICKLAND’S MOTION TO
DISMISS SECOND AMENDED
COUNTERCLAIMS
1. 	THIS MATTER is before the Court following the 4 August 2023 filing of
two motions to dismiss: (1) Goodwin Procter, LLP’s (“Goodwin”) motion to dismiss
Defendants 	and 	Counterclaim 	Plaintiffs’ 	Second 	Amended 	Counterclaims2
(“Goodwin’s Motion to Dismiss”) pursuant to Rules 12(b)(5) and 12(b)(6) of the North
1 The Court enters this Amended Order and Opinion to clarify three things: (1) that the
dismissal of Goodwin Procter, LLP and Leila Strickland pursuant to Rule 12(b)(5) was
without prejudice, (infra at 15); (2) that the Court did not consider Affidavits of Service filed
after full briefing and a hearing on the motions addressed herein, (infra at 7–8); and (3) to
correct the date of the hearing, set forth in Section I herein, from 7 November 2022 to
7 November 2023, (infra at 6).
2 The counterclaims are contained in a filing titled “Defendants’ First Amended Joint Partial
Answer to Plaintiff’s Second Amended Complaint and Second Amended Counterclaims,” (the
“Counterclaims”). (Second Am. Countercls., ECF No. 154 [“Second Am. Countercls.”].)
BIOMILQ, Inc. v. Guiliano, 2023 NCBC 91A.

Carolina Rules of Civil Procedure (the “Rule(s)”), (Goodwin Procter LLP’s Mot.
Dismiss Second Am. Countercls. & Third-Party Claim, ECF No. 182 [“Goodwin
Mot.”]); and (2) Counterclaim Defendants BIOMILQ, Inc. (“BIOMILQ”) and Leila
Strickland’s 	(“Strickland”) 	motion 	to 	dismiss 	seeking 	(a) dismissal 	of 	the
counterclaims 	against 	Strickland 	pursuant 	to 	Rules 12(b)(5) 	and 12(b)(6) 	and
(b) dismissal 	of the counterclaims 	against 	BIOMILQ pursuant 	to 	Rule 12(b)(6)
(“BIOMILQ and Strickland’s Motion to Dismiss”, together with Goodwin’s Motion to
Dismiss, the “Motions”), (BIOMILQ & Leila Strickland’s Mot. Dismiss Second Am.
Countercls., ECF No. 185 [“BIOMILQ & Strickland Mot.”]).3
2. 	This Amended Order and Opinion addresses Goodwin and Strickland’s
arguments, made in the Motions pursuant to Rule 12(b)(5), that Counterclaim
Plaintiffs Shayne Guiliano and 108Labs, LLC (“Counterclaim Plaintiffs”) failed to
properly effect service of the Counterclaims pursuant to Rule 4, thereby warranting
their dismissal pursuant to Rule 12(b)(5).
3. 	For the reasons discussed below, the Court GRANTS in part and DENIES
in part Goodwin’s Motion to Dismiss, GRANTS in part and DENIES in part
BIOMILQ and Strickland’s Motion to Dismiss as to Strickland’s defense of improper
service, and DEFERS ruling on BIOMILQ and Strickland’s Motion to Dismiss to the
extent it seeks dismissal of the Counterclaims against BIOMILQ pursuant to
Rule 12(b)(6).
3 Identical copies of BIOMILQ and Strickland’s Motion to Dismiss were filed at ECF
Nos. 185–86.

Robinson, Bradshaw & Hinson, P.A. by J. Dickson Phillips and Stephen
D. Feldman, and Goodwin Procter, LLP by Rachel M. Walsh, for Plaintiff
BIOMILQ, Inc. and Counterclaim Defendant Leila Strickland.
Robinson, Bradshaw & Hinson, P.A. by J. Dickson Phillips, Stephen D.
Feldman, and Brendan Biffany, for Counterclaim Defendant Goodwin
Procter, LLP.
Carnes Warwick, PLLC by Jonathan A. Carnes and Tara D. Warwick,
for Defendants Shayne Guiliano and 108Labs, LLC.4
Wallis, Bowens, Averhart & Associates, PLLC by Stephon J. Bowens and
Saleisha Averhart, for Defendant 108Labs, LLC.
Robinson, Judge.
I. 	BACKGROUND
4. 	This dispute began as one focused on the alleged misappropriation by
Mr. Guiliano of trade secret information allegedly owned by BIOMILQ regarding a
process to develop cell-cultured human milk. 	It has since expanded to encompass
Mr. Guiliano’s alleged ownership rights in 108Labs, LLC, a North Carolina limited
liability company, that Mr. Guiliano contends developed antecedent technology. The
factual background and procedural history of this matter is set forth in greater detail
in the Court’s 10 February 2023 Order and Opinion on Defendants’ Joint Motion to
Dismiss or in the Alternative Hold Proceedings in Abeyance. 	See BIOMILQ, Inc. v.
Guiliano, 2023 NCBC LEXIS 24 (N.C. Super. Ct. Feb. 10, 2023). The Court sets forth
herein only those portions of the factual and procedural background relevant and
necessary to its determination of the Motions.
4 Following the filing of the Motions and briefing, Shayne Guiliano (“Mr. Guiliano”) elected
to proceed pro se. (See ECF No. 223.) On 29 November 2023, the Court permitted attorneys
Tara D. Warwick and Jonathan A. Carnes of Carnes Warwick, PLLC to withdraw as counsel
of record for Mr. Guiliano. (ECF No. 232.)

5. 	BIOMILQ initiated this action on 4 March 2022 by filing its Complaint,
(ECF No. 3), and its Motion for Temporary Restraining Order and Preliminary
Injunction, (ECF No. 4), against Mr. Guiliano. 	This matter was designated to the
North Carolina Business Court on the same day, (ECF No. 7), and assigned to the
undersigned on 7 March 2022, (ECF Nos. 1–2).
6. 	BIOMILQ filed its First Amended Complaint as of right on 13 April 2022,
adding 108Labs, LLC (“108Labs”) as a Defendant. 	(ECF No. 42.) 	Thereafter, on
15 June 2022, Counterclaim Plaintiffs filed their Joint Motion to Dismiss or in the
Alternative Hold Proceedings in Abeyance. (See ECF No. 73.) On 10 February 2023,
the Court granted Counterclaim Plaintiffs’ motion in part, dismissing without
prejudice some of BIOMILQ’s claims. 	BIOMILQ, Inc., 2023 NCBC LEXIS 24, at
**30–32. Following permission of the Court, (see ECF Nos. 135–36), BIOMILQ filed
the Second Amended Complaint (the “SAC”) on 21 April 2023, (Second Am. Compl.,
ECF No. 137 [“SAC”]).
7. 	On 6 February 2023, Counterclaim Plaintiffs, filed a document entitled
Answer and Counterclaims. 	(ECF No. 120.) 	In this filing, Counterclaim Plaintiffs
failed to answer the allegations in the First Amended Complaint, but rather solely
attempted to bring counterclaims against BIOMILQ and to raise additional claims
against Strickland, Michelle Egger, Breakthrough Energy Ventures, LLC, and
Goodwin. (See ECF No. 120.) Counterclaim Plaintiffs did not obtain a summons for
either Strickland or Goodwin prior to or at the time of filing that document.

8. 	Counterclaim 	Plaintiffs 	filed 	Defendants’ 	Amended 	Answer 	and
Counterclaims (“First Amended Counterclaims”) on 2 March 2023, (ECF No. 127),
again without causing summonses to be issued by the Clerk of Superior Court for
service upon either Goodwin or Strickland. 	After the Court inquired regarding the
status of the issuance of summonses at the Case Management Conference in April
2023, (see ECF No. 134), Counterclaim Plaintiffs secured the issuance of summonses
for service upon Goodwin and Strickland on 20 April 2023,5 (ECF Nos. 183.2, 187.2).
9. 	On 1 May 2023, Counterclaim Plaintiffs attempted to serve Strickland by
sending the summons to her, along with the Answer and Counterclaims and the First
Amended Counterclaims, by use of Federal Express Corporation’s (“FedEx”) “FedEx
Express Saver” service. 	According to the tracking history filed with the Court by
Counterclaim Plaintiffs, the materials were purportedly delivered to Strickland on
2 May 2023. 	(See Aff. Service, ECF No. 148 [“Aff. Serv.”]; Ex. A, ECF No. 148.1
[“Strickland Receipt”].) Notably, the receipt for Strickland’s package did not have or
require a signature. 	(Strickland Receipt 1 (“Signed for by: S.IGNATURE [sic] NOT
REQ”).)
10. 	On 2 May 2023, Counterclaim Plaintiffs attempted to serve Goodwin by
sending the summons directed to it, along with the Answer and Counterclaims and
First Amended Counterclaims, to Goodwin’s address in Boston, Massachusetts, using
the same FedEx Express Saver service. (Aff. Serv.; Ex. F, ECF No. 148.6 [“Goodwin
5 The Court may take judicial notice of the summonses issued against Goodwin and
Strickland, including the date on which they were issued. Kroger Ltd. P’ship I v. Guastello,
177 N.C. App. 386, 395 (2006).

Receipt”].) 	The package was addressed to “Goodwin Procter LLP,” but not to a
specifically identified person. (Goodwin Receipt 1.) According to the tracking history
filed with the Court by Counterclaim Plaintiffs, the package was delivered to
Goodwin’s mailroom on 4 May 2023. 	(Goodwin Receipt 1.) 	The delivery receipt
appears to have been signed by “T. Pisarevskaya”. (Goodwin Receipt 1.)
11. 	Counterclaim Plaintiffs filed their Affidavit of Service with the Court on
31 May 2023, setting forth the process by which service on Strickland and Goodwin
was purportedly effected. (See Aff. Serv.)
12. 	Counterclaim Plaintiffs thereafter filed the operative Counterclaims on
5 June 2023. 	(Second Am. 	Countercls.) 	No new 	summonses 	were 	issued in
connection with the Counterclaims.
13. 	On 12 July 2023, in response to a timely motion consented to by all parties,
the 	Court 	entered 	its 	Scheduling 	Order 	extending 	the 	time 	for 	Counterclaim
Defendants, 	including 	Strickland 	and 	Goodwin, 	to 	file 	their 	responses 	to 	the
Counterclaims and for Counterclaim Plaintiffs to file any response briefs. 	(ECF
No. 175.) 	Accordingly, Goodwin, BIOMILQ, and Strickland filed the Motions now
before the Court with supporting briefs on 4 August 2023. 	(See Goodwin Mot.;
BIOMILQ & Strickland Mot.)
14. 	Having considered the Motions, briefing, and arguments by counsel at a
hearing on 7 November 2023, at which all parties were present and represented
through counsel, the Motions are now ripe for resolution. (See ECF No. 210.)

15. 	Following the filing of the Motions, completion of briefing on the Motions,
and conclusion of the hearing on 7 November 2023, Mr. Guiliano filed the Affidavit of
Service on 8 December 2023, without comment, request for consideration or other
relief, which purports to show that he effected service of the Counterclaims and an
alias and pluries summons upon Goodwin “in accordance with Rule 4(j)(8)(c),” (the
“Goodwin Affidavit of Service”). (ECF No. 235.)
16. 	On 28 December 2023, after the Court entered its Order and Opinion on the
Motions, Mr. Guiliano filed the Guiliano Affidavit of Service to Strickland, indicating
that, 	roughly 	seven 	days 	before 	the 	Court 	entered 	the 	Order 	and 	Opinion,
Mr. Guiliano purportedly served Strickland with the Counterclaims and an alias and
pluries summons issued on 27 November 2023 (the “Strickland Affidavit of Service”).
(ECF No. 244.)
17. 	Mr. Guiliano did not promptly bring these matters to the undersigned’s
attention 	or 	request 	that 	the 	Court 	consider 	these 	subsequent 	procedural
developments in conjunction with the Court’s determination of the Motions.
18. 	Rule 6(d) provides, in relevant part, that
opposing affidavits shall be served at least two days before the hearing
[on a motion]. If the opposing affidavit is not served on the other parties
at least two days before the hearing on the motion, the court may
continue the matter for a reasonable period to allow the responding
party to prepare a response, proceed with the matter without considering
the untimely served affidavit, or take such other action as the ends of
justice require.
N.C.G.S. § 1A-1, Rule 6 (emphasis added); see Lane v. Winn-Dixie Charlotte, Inc., 169
N.C. App. 180, 184–85 (2005).

19. 	To be clear, the Court did not consider the Goodwin Affidavit of Service or
the Strickland Affidavit of Service in its consideration of the Motions, and no party
to this action requested that the Court consider these documents. The Court does not
herein determine whether such service on either Goodwin or Strickland was proper
under Rule 4, and the Court does not herein determine whether the filing of the
Goodwin Affidavit of Service or the Strickland Affidavit of Service is satisfactory proof
of service on either Counterclaim Defendant. Rather, the Court, in its discretion, has
not considered the later-filed affidavits in its ruling on the Motions.
II. 	LEGAL STANDARD
20. 	“It is well established that a court may obtain personal jurisdiction over a
defendant only by the issuance of summons and service of process by one of the
statutorily specified methods.” 	Glover v. Farmer, 127 N.C. App. 488, 490 (1997)
(citation omitted). 	Pursuant to Rule 12(b)(5), an action must be dismissed when
service of process is not valid. Draughon v. Harnett Cty. Bd. of Educ., 166 N.C. App.
449, 451 (2004); see Glover, 127 N.C. App. at 490.
21. 	“Rule 4 . . . provides the methods of service of summons and complaint
necessary to obtain personal jurisdiction over a defendant[.]” Grimsley v. Nelson, 342
N.C. 542, 545 (1996) (citation omitted). 	Thus, Rule 4 provides several specific
methods by which service may be properly achieved with respect to different types of
persons and entities or the State and its various municipalities. 	N.C.G.S. § 1A-1,
Rule 4(j).

22. 	Goodwin is a partnership. 	Service upon a partnership using FedEx, a
delivery service, requires that the serving party deposit, “with a designated delivery
service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and
complaint, addressed to any general partner or to any attorney-in-fact or agent
authorized by appointment or by law to be served or to accept service of process in its
behalf[.]” Id. Rule 4(j)(7)a.
23. 	Service on an individual, such as Strickland, is governed by a similar
provision requiring the serving party to deposit, “with a designated delivery service
authorized pursuant to 26 U.S.C § 7502(f)(2) a copy of the summons and complaint,
addressed to the party to be served, delivering to the addressee, and obtaining a
delivery receipt.” Id. Rule 4(j)(1)d.
24. 	Service in a manner authorized by Rule 4(j) is mandatory. Guthrie v. Ray,
293 N.C. 67, 69 (1977) (citation omitted) (“Where a statute provides for service of
summons . . . by designated methods, the specified requirements must be complied
with or there is no valid service.”). Thus, a serving party must strictly comply with
Rule 4 in serving the summons and complaint. Id.; Grimsley, 342 N.C. at 545. Actual
notice is not a valid substitute for service that does not comply with Rule 4. Stack v.
Union Regional Mem’l Med. Ctr., Inc., 171 N.C. App. 322, 328 (2005) (citing Guthrie,
293 	N.C. 	at 	69); 	Roshelli 	v. 	Sperry, 	57 	N.C. 	App. 	305, 	307 	(1982) 	(citations
omitted) (“It is generally held that process must be issued and served in the manner
prescribed by statute, and failure to do so makes the service invalid even though a
defendant had actual notice of the lawsuit.”).

III. 	ANALYSIS
25. 	The record irrefutably discloses that, in attempting to serve the summonses
and documents containing their counterclaims against Strickland and Goodwin,
Counterclaim Plaintiffs used the FedEx Express Saver service. 	(Aff. Serv. 1.)
Goodwin and Strickland argue in support of the Motions pursuant to Rule 12(b)(5),
that FedEx Express Saver is a delivery service that does not comply with Rule 4
because it does not meet the definition of a “designated delivery service” as the term
is used in Rule 4(j)(7)a. for Goodwin, or Rule 4(j)(1)d. for Strickland. 	(See Br. Supp.
Goodwin Mot. 9–10, ECF No. 183 [“Br. Supp. Goodwin Mot.”]; Br. Supp. BIOMILQ &
Strickland Mot. 9–11, ECF No. 187 [“Br. Supp. BIOMILQ & Strickland Mot.”].) The
Court agrees.
26. 	By reference to and incorporation of 26 U.S.C. § 7502(f)(2), Rule 4 requires
that a party effecting service under subsections 4(j)(1)d. or 4(j)(7)a. use a designated
delivery service approved by the Secretary of the Treasury. See 26 U.S.C. § 7502(f)(2)
(providing that “the term ‘designated delivery service’ means any delivery service
provided by a trade or business if such service is designated by the Secretary [of the
Treasury] . . . .”). 	The list of such services is found in IRS Notice 2016-30. 	I.R.B.
No. 2016-18, at 265 (Rev. May 2, 2016). 	This list does not include FedEx Express
Saver. Id.
27. 	As a threshold matter, in opposition to the Motions, Counterclaim Plaintiffs
argue that Notice 2016-30 “is not properly before the [C]ourt.” 	(Countercl. Pls.’ Br.
Opp. Goodwin Mot. 10, ECF No. 205 [“Br. Opp. Goodwin Mot.”]). 	However, North

Carolina courts and federal courts routinely take judicial notice of public filings by
federal agencies. 	See, e.g., N. Carolina State Bar v. Talman, 62 N.C. App. 355, 364
(1983) 	(“[W]e 	take 	judicial 	notice 	of 	the 	regulations 	of 	the 	Internal 	Revenue
Service[.]”); Shore v. Charlotte-Mecklenburg Hosp. Auth., 412 F. Supp. 3d 568, 573
(M.D.N.C. 2019) (similar). 	Here, the Court may properly, and does, take judicial
notice of IRS Notice 2016-30 and determines that FedEx Express Saver is not an
enumerated designated delivery service in that Notice.
28. 	Counterclaim Plaintiffs also argue that the services enumerated in IRS
Notice 2016-30 are illustrative of those permitted by 26 U.S.C. § 7502(f)(2), not
exhaustive. (Br. Opp. Goodwin Mot. 10.) However, Counterclaim Plaintiffs provide
no legal support to warrant expansion of the delivery services that may be utilized
beyond those expressly listed in IRS Notice 2016-30. See Evans v. Diaz, 333 N.C. 774,
779–80 (1993) (“Under the doctrine of expressio unius est exclusio alterius, when a
statute lists the situations to which it applies, it implies the exclusion of situations
not contained in the list.”).
29. 	Counterclaim Plaintiffs also argue that FedEx Express Saver “meets the
minimum requirements under which the Secretary is authorized to designate”
delivery services, and therefore, this Court should deem the service of process upon
Strickland and Goodwin as proper and legally effective. 	(Countercl. Pls.’ Br. Opp.
BIOMILQ & Strickland Mot. 6, ECF No. 194 [“Br. Opp. BIOMILQ & Strickland
Mot.”].) 	In this regard, Counterclaim Plaintiffs focus the Court’s attention on the
portion of Section 7502 that states:

The Secretary may designate a delivery service . . . only if the Secretary
determines that such service—
(A) is available to the general public,
(B) is at least as timely and reliable on a regular basis as the United
States mail,
(C) records electronically to its data base, kept in the regular course of
its business, or marks on the cover in which any item referred to in this
section is to be delivered, the date on which such item was given to such
trade or business for delivery, and
(D) meets such other criteria as the Secretary may prescribe.
26 U.S.C. § 7502(f)(2).
30. 	Section 7502(f)(2) is clear that, in addition to the prerequisites set forth
above, a “designated delivery service” includes only those services that are actually
“designated 	by 	the 	Secretary.” 	26 	U.S.C. 	§ 7502(f)(2) 	(“For 	purposes 	of 	this
subsection, the term ‘designated delivery service’ means any delivery service provided
by a trade or business if such service is designated by the Secretary for purposes of
this section.” (emphasis added)).
31. 	In 	arguing 	that 	the 	prerequisites 	alone 	are 	sufficient, 	Counterclaim
Plaintiffs attempt to eliminate one of the five mandatory conditions in the definition
of “designated delivery service.” 	(See Br. Opp. BIOMILQ & Strickland Mot. 5.)
Where, as here, “the language of the statute is clear and is not ambiguous, we must
conclude that the legislature intended the statute to be implemented according to the
plain meaning of its terms.” 	Lunsford v. Mills, 367 N.C. 618, 623 (2014) (citations
omitted). 	In addition, Counterclaim Plaintiffs’ interpretation directly conflicts with
the language of IRS Notice 2016-30, which states that “[o]nly the specific delivery
services enumerated in this list are designated delivery services for purposes of

§ 7502(f). DHL Express, FedEx, and UPS are not designated with respect to any type
of delivery service not enumerated in this list.” I.R.B. No. 2016-18, at 265 (Rev. May
2, 2016); see also Herzog v. Comm’r, 643 F. App’x 942, 943–44 (11th Cir. 2016)
(recognizing that FedEx Express Saver is not a designated delivery service under
26 U.S.C. § 7502(f)(2)).
32. 	Counterclaim Plaintiffs’ position relies not on the plain language of the law,
but rather on the factual assertion that Goodwin and Strickland received actual
notice of the service of the summonses and pleadings upon them.6 However, actual
notice does not cure defective service. Fulton v. Mickle, 134 N.C. App. 620, 624 (1999)
(“Although defective service of process may sufficiently give the defending party
actual notice of the proceedings, such actual notice does not give the court jurisdiction
over the party.” (cleaned up)); Jones v. Trinity Highway Prods., LLC, 2021 N.C. App.
LEXIS 741, at **17 (2021) (unpublished) (quoting Fulton, 134 N.C. App. at 624);
Bizrobe Trust by Doublebent, LLC v. InoLife Techs., Inc., 2019 NCBC LEXIS 3, at
*15–16 (N.C. Super. Ct. Jan. 9, 2019) (dismissing complaint when plaintiff failed to
comply with Rule 4 despite defendant actually receiving process).
33. 	Counterclaim Plaintiffs further argue that the policy set forth in N.C.G.S.
§ 1-75.1 should prevail over mechanical application of the law. 	(Br. Opp. Goodwin
Mot. 6; Br. Opp. BIOMILQ & Strickland Mot. 4–5.) 	Section 1-75.1 expresses the
legislative intent behind the statutes regarding jurisdiction, stating: “[t]his Article
6 It is not clear when Goodwin had actual notice of the claims against it. Though Goodwin
admits that it received the service package in its mailroom on 4 May 2023, it is unclear from
the papers when a person authorized by law to accept service became aware of the filings in
this matter.

shall be liberally construed to the end that actions be speedily and finally determined
on their merits.” N.C.G.S. § 1-75.1. While Counterclaim Plaintiffs are indeed correct
that 	N.C.G.S. 	§ 1-75.1 	greatly 	liberalizes 	the 	grounds 	for 	jurisdiction, 	they
nonetheless incorrectly assert that the legislature’s intent was also to liberalize how
service might comport with Rule 4’s specific requirements. 	In fact, in Edwards v.
Edwards, our Court of Appeals explained that Rule 4 and N.C.G.S. § 1-75.1 are
complementary to one another, with Rule 4’s requirements regarding service of
process 	tightened 	to 	ensure 	that 	the 	defendant 	receives 	actual 	notice 	of 	the
controversy. 13 N.C. App. 166, 169 (1971).
34. 	Finally, Counterclaim Plaintiffs contend that a “rebuttable presumption”
that service was proper applies to their attempted service of process on Strickland
and Goodwin. 	However, Counterclaim Plaintiffs admit that such a presumption
arises only “[o]nce proof of service is established[.]” (Br. Opp. Goodwin Mot. 6 (citing
Granville Med. Ctr., 160 N.C. App. at 489).) 	Because Counterclaim Plaintiffs’
Affidavit of Service demonstrates that the method of service of process utilized by
them is defective, they cannot take advantage of any presumption of valid service.
(See Aff. Serv.) Notably, the case Counterclaim Plaintiffs rely on for support concerns
the presumption found in Rule 4(j2)(2), which applies before a default judgment may
be ordered. Granville Med. Ctr., 160 N.C. App. at 490–91. This language is not found
elsewhere in Rule 4.
35. 	For 	the 	reasons 	discussed 	herein, 	Counterclaim 	Plaintiffs’ 	attempted
service on Strickland and Goodwin using FedEx Express Saver failed to comply with

the requirements of Rule 4. As such, service was insufficient and warrants dismissal
of the action against both Goodwin and Strickland.
IV. 	CONCLUSION
36. 	THEREFORE, the Court hereby GRANTS in part Goodwin’s Motion to
Dismiss pursuant to Rule 12(b)(5), and GRANTS in part BIOMILQ and Strickland’s
Motion to Dismiss to the extent that motion requests dismissal of claims against
Strickland pursuant to Rule 12(b)(5).
37. 	Having concluded that service on Goodwin and Strickland was insufficient
under the requirements of Rule 4, and that the actions against them should be
DISMISSED without prejudice pursuant to Rule 12(b)(5), the Court determines that
it does not have jurisdiction to rule on Goodwin’s Motion to Dismiss and Strickland’s
Motion to Dismiss pursuant to Rule 12(b)(6) for failure to state a claim. Accordingly,
the Court DENIES as moot the remainder of Goodwin’s Motion to Dismiss and
DENIES as moot BIOMILQ and Strickland’s Motion to Dismiss as it relates to
Strickland.
38. 	The 	Court 	otherwise DEFERS ruling on 	BIOMILQ and Strickland’s
Motion to Dismiss to the extent BIOMILQ seeks dismissal of the Counterclaims
against it pursuant to Rule 12(b)(6). 	The Court will address the remainder of that
motion by separate order.

IT IS SO ORDERED, this the 9th day of January, 2024.
/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases