Henderson v. Bekaert

I. Background On April 13, 1988, James Henderson, as bankruptcy trustee for Service Equipment Company, and John Smithgall filed suit against the accounting firm of Cherry, Bekaert & Holland (CBH), a North Carolina partnership, for its role in the purchase and sale of the stock of Service Equipment Company. The complaint included federal securities law and pendent state law claims. CBH filed a Fed.R.Civ.P. 12(b) motion to dismiss the complaint. The motion sought dismissal on the ground that the district court lacked subject matter jurisdiction over the claims asserted against it by Smithgall. The motion also sought dismissal of the complaint on the ground of insufficient service of process. See Fed.R.Civ.P. 12(b)(5).1 In support of its motion to dismiss, CBH submitted the affidavits of Tomi Simpkins, a receptionist who spoke with the process server, and Jerry Killinger, the CBH employee with whom the summons and complaint were left. Henderson submitted the affidavit of Robert Heath, the process server, in opposition to the motion.