United States District Court, E.D. North Carolina, Eastern Division
AUGUSTINE R. THOMPSON, Plaintiff,
PAMELA HANSON, Clerk of Superior Court of Carteret County, Defendant.
W. EARL BRITT, District Judge.
This matter comes before the court on defendant Pamela Hanson's motion to dismiss. (DE # 10.) Plaintiff Augustine Thompson has filed a response to the motion. (DE # 15.)
Pro se plaintiff Augustine Thompson ("Thompson") initiated this proceeding by filing an application to proceed in forma pauperis, which the court allowed on 23 May 2014. (DE ## 1, 3.) She alleges that defendant Pamela Hanson ("Hanson"), Clerk of Superior Court for Carteret County, North Carolina, fired her from her job as Deputy Clerk of Court based on her race and "in retaliation for opposing unlawful practices in violation of Title VII...." (Compl., DE # 4, at 3.)
Hanson seeks dismissal of the complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), (b)(5), and (b)(6) for lack of personal jurisdiction, insufficient service of process, and failure to state a claim. (DE # 11.)
II. LEGAL STANDARD
A plaintiff bears the burden of showing that the service of process complies with the requirements set forth in Rule 4 of the Federal Rules of Civil Procedure. Elkins v. Broome, 213 F.R.D. 273, 275 (M.D. N.C. 2003). The Fourth Circuit has counseled that
[w]hen the process gives the defendant actual notice of the pendency of the action, the rules, in general, are entitled to a liberal construction. When there is actual notice, every technical violation of the rule or failure of strict compliance may not invalidate the service of process. But the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored.
Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984).
Rule 4(j)(2) of the Federal Rules of Civil Procedure outlines the requirements for effectuating service on a state or local government. The rule requires that "[a] state... be served by: (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant." In turn, North Carolina Rule of Civil Procedure 4(j)(4) provides that service may be made upon a state agency by delivery of process to that agency's designated process agent or, absent designation of an agent, to the Attorney General of North Carolina.
Pursuant to Federal Rule of Civil Procedure 12(b)(5), a court may dismiss an action for insufficient process of service. However, "[d]ismissal under Rule 12(b)(5) is not justified where it appears that service can be properly made.'" Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F.Supp. 519, 527 (M.D. N.C. 1996) (quoting Coastal Neuro-Psychiatric Assoc. V. Onslow Cnty. Hosp. Auth., 607 F.Supp. 49, 50 (E.D. N.C. 1985)).
When service of process is deficient, dismissal may also be proper under Rule 12(b)(2) for lack of personal jurisdiction. See Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984) ("Since there was no valid service of process, the district court was without jurisdiction of the defendant....").
A court may dismiss a complaint pursuant to Rule 12(b)(6) for failure to state a claim if the complaint does not contain enough factual allegations to state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In evaluating a motion to dismiss under Rule 12(b)(6), the court must take all the factual allegations in the complaint as true, but legal conclusions and conclusory ...