ORDER
This mаtter comes before the Court on multiple motions, all of which concern defendant’s desire to see the complaint in this matter stricken for insufficient process and insufficient sendee of process pursuant to Fed.R.Civ.P. Rules 12(b)(4) and 12(b)(5).
The record indicates that on March 22, 1995, plaintiff filed its complaint and caused a summons to issuе. On April 11, 1995, the summons was returned unexecuted, stating that defendant was out of the country at the time and would return later. The summons was re-issued on May 2, 1995, but was returned unexecuted оn June 15,1995, with the following statement by the Deputy Sheriff: “unable to locate in time for service after many attempts.” Defendant also refers to an incident on April 25, 1995, wherе plaintiff attempted to effect service by leaving the summons and a copy of the complaint at defendant’s house with “Dina,” his housekeeper.
On June 27, 1995, the magistrate judge assigned to this case held a conference to address his concerns at the time “over the state of the pleadings.” The “responsive pleading” and the response thereto were struck from the rеcord, and defendant was allowed time to file an amended motion to dismiss on the service grounds. On July 10, 1995, defendant’s amended motion was filed, but nine days later, defendant filed an amended-amended motion, as well as a motion for leave to file that motion. Plaintiff opposed amending the amended motion, and filed a response to the once-amended motion. Defendant replied to both measures, and also filed two motions to strike affidavits attached to plaintiffs opposition, to which plaintiff responded. These pleadings are considered en masse below. It should also be noted that on September 26, 1995, an amended complaint was filеd naming an additional defendant. There is apparently no challenge to service of process by the other defendant, although it is unclear whether the аmended complaint was also served on Mr. Longiotti, thereby mooting the question now presented. Nevertheless, the Court will proceed to rule on defendant’s mоtion. For the reasons given below, that motion must be DENIED.
* * *
The events leading up to the disputed incident clearly indicate that the defendant was well-aware that a complaint had been filed against him and that the plaintiff was attempting to effect service of process. Given
On the evening of May 31, 1995, plaintiff engaged Mr. Louis J. Wheeler, of APS process servers, to pay a visit to the Longiotti household. Mr. Wheeler testified that the door was answered by the Longiottis’ eight-year-old daughter, of whom he asked if it was possible that he could speak with her father. The girl allegedly said, “Daddy, aren’t you coming to the door?” whereupon an undiscer-nible male voice was followed by the appearance of defendant’s wife, Sue Medlin Lon-giotti, who represented herself simply as “Sue Medlin.” Ms. Longiotti allegedly told Mr. Wheeler that her attornеy advised her not to accept anything that didn’t arrive in the regular mail. She then asked Mr. Wheeler whether he was a Federal Express employee, referring to the Federal Express envelope that had been delivered to Mr. Wheeler containing the summons and a copy of the complaint, although the legal documents were by now in a separate manila envelope that Mr. Wheeler was also carrying. Mr. Wheeler testified he disclaimed being a Federal Express employee, explaining that he was a private investigator who had been retained to serve process on Mr. Longiotti and that the papers had been dеlivered to him via Federal Express. He showed Ms. Longiotti his private investigator’s license, which she read aloud as, “private investigator,” and also gave her his business сard. Mr. Wheeler explained that private process servers such as he were retained in order to reduce the workload for the Sheriffs Department, to which she replied that a person from the Sheriffs Department had previously visited the residence in an attempt to serve process.
Ms. Longiotti’s testimony
Since Ms. Longiotti refusеd to accept the manila envelope, Mr. Wheeler left it at her doorstep and departed from the location in his car. Ms. Longiotti then called the police department, stating that a suspicious man had left an equally suspicious package at her doorstep, alluding that she feared this was a bomb left by the “Unabomber.” The neighborhood was evacuated, the bomb squad was called in, and the “Unabomber” task force was notified. The Red Cross was also appаrently alerted to the possibility that several families had been evacuated from their homes.
Detective William E. Frick of the Chapel Hill Police Departmеnt testified that he was the “on-call” investigator in charge of the bomb scare. Det. Frick testified that Ms. Longiotti gave another officer Mr. Wheeler’s business card, and that another officer called Mr. Wheeler to inquire about the manila envelope. The officer thereafter informed Det. Frick that the envelope сontained legal papers and that Mr. Wheeler had visited the home in order to serve process on Mr. Lon-giotti. Det. Frick opened the envelope, verified that it contained legal documents, and handed those documents to Ms. Longiotti.
Defendant’s motions to strike portions of the Wheeler and Frick affidavits are DENIED. The affidavits contain no objectionable material or hearsay statements.
The Court reaches the following conclusions:
(1) the defendant willfully and intentionally avoided service of process.
(2) the defendant’s wifе knew that Mr. Wheeler was attempting to serve process.
(3) service of process was effected by Mr. Wheeler.
(4) service of process was also effected by Det. Frick, who intended to effectuate serviсe of process when he verified the envelope’s contents as legal documents, was informed that they had been delivered in an attempt to effeсt service of process, and thereafter served defendant’s wife at their home with those papers.
Setting off a bomb scare in an attempt to avoid service of process, with all the attendant neighborhood dislocation and strain upon local protective services, is outrageous. Defendant’s motion is DENIED. The “responsive pleading” of May 18, 1995, and the plaintiffs response thereto, are hereby ORDERED RE-INSTATED in the record and shall serve as the defendant’s answer and plaintiffs response, respectively.
SO ORDERED.
Notes
. The record does not indicate whether or not "Dina” was "a person of suitable age and discretion residing therein." Fed.R.Civ.P. Rule 4(e)(2).
. It is difficult to believe that she was unaware of .repeated visits by the Sheriff, or of the massive “responsive pleading” filed by her husband in this Court on May 18, 1995.
. In addition to the allegations set forth in defendant’s amended motion and brief in support thereof, defendant moved to amend the amended motion in order to add an affidavit by Ms. Lon-giotti. This latter motion was opposed, properly, by plaintiff. Nevertheless, the affidavit was considered by the Court, although it proves unconvincing.