United States District Court, M.D. North Carolina
LATASHA M. PARHAM, Plaintiff,
ARBY'S RESTAURANT GROUP, INC., ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
CARLTON TILLEY, JR. SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on a Motion to Dismiss [Doc.
#20] pursuant to Federal Rule of Civil Procedure 4(m),
12(b)(5), and 12(b)(6) filed by Defendants Arby's
Restaurant Group, Inc. (“Arby's”), Andrew
Dobbins, Soraya Gomez, Tyika Johnson, Ronald Riemesch, and
Kevin Williams. For the reasons explained below, the
Motion will be granted.
Latasha M. Parham, proceeding pro se, is a former
employee of the Arby's restaurant located at 5503 South
Miami Boulevard in Durham, North Carolina. (Compl. [Doc. #2]
at 1-2.) According to the Complaint, Ms. Parham was sexually
harassed by Dwayne Thomas, a manager there, in front of other
Arby's managers. (Id. at 2.) Ms. Parham alleges
that Thomas “groped his genitalia on [her] and
grab[bed] her breast” and “made sexual
comments” to her. (Id.) She also alleges that
Thomas “violated other woman [sic] in front of [General
Manager] Kevin Williams.” (Id.) Ms. Parham
asserts that the other individual defendants, General
Managers Kevin Williams and Andrew Dobbins, Manager Ronald
Riemesch, and Area Supervisors Soraya Gomez and Tyika
Johnson, all of whom are employees of Arby's, did not
take her allegations seriously. (Id.)
Parham further alleges that, after she made a complaint,
“she was treated differently from other
employees.” (Id.) Specifically, she asserts
that: (1) Williams did not return her calls about the
harassment and eventually cut her work hours; (2) Dobbins
harassed her by using profanity, “jumped in [her] face
with hand contact, ” and “tormented” her;
(3) Riemesch harassed and “tormented” her; (4)
Gomez ignored her complaint and “stood me up about
taking down my complaint”; and (5) Johnson, a friend of
Dobbins, also harassed her. (Id.) In conclusion, Ms.
Parham alleges that Arby's management made her work in a
hostile environment, violated her rights, and “made
[her] feel less of a human being.” (Id.)
Parham filed a Charge of Discrimination with the U.S. Equal
Employment Opportunity Commission (“EEOC”) based
on sexual harassment and retaliation in violation of Title
VII of the Civil Rights Act of 1964. (Ex. A, Letter [Doc.
#2-1] at 1.) After finding “reasonable cause to believe
that violations of the statute had occurred, ” the EEOC
issued a Notice of Right to Sue on February 26, 2016. (Ex.A,
Notice of Right to Sue [Doc. #2-1] at 4-5.) On April 11,
2016, Ms. Parham filed the present action alleging sexual
harassment, retaliation, and hostile work environment.
April 14, 2016, the Magistrate Judge issued an Order Granting
Leave to Proceed In Forma Pauperis, which also directed that
Plaintiff is responsible for preparing and delivering to the
Clerk, the correct summons for service on each defendant,
including the correct address and the name and title of the
individual to be served on behalf of a corporation,
association, infant, incompetent or government agency.
Failure to prepare and deliver said summons within 15 days
from the filing of this order shall result in this case being
dismissed without further notice. The U.S. Marshal shall
serve the summons and complaint upon defendants.
[Doc. #4.] Almost four months later, on August 4, 2016, the
Magistrate Judge sua sponte issued an Order
recommending that the present action be dismissed without
prejudice for Ms. Parham's failure to comply with the
April 14, 2016 Order. [Doc. #5.] Ms. Parham timely filed an
Objection requesting that her action not be dismissed. [Doc.
#7.] On September 12, 2016, because Ms. Parham
“submitted to the Court summonses for service upon each
Defendant, ” the Magistrate Judge withdrew the prior
Recommendation and ordered the U.S. Marshal to “serve
the original complaint and summonses upon defendants.”
(Order [Doc. # 10].) To date, only the summonses to
Arby's, Dobbins, and Williams have been returned
executed. (Compare [Docs. #12, 24] with
[Doc. #13].) On November 10, 2016, Defendants filed a Motion
to Dismiss for Insufficient Process and for Failure to State
a Claim pursuant to Federal Rule of Civil Procedure 4(m),
12(b)(5), and 12(b)(6).
pursuant to Rules 4(m) and 12(b)(5) of the Federal Rules of
Civil Procedure, Arby's, Gomez, Johnson, and Riemesch
argue that dismissal is appropriate because they were not
properly served. (Defs.' Mem. in Supp. of Mot. to Dismiss
(“Defs.' Mem.”) [Doc. #21] at 2-7.) Gomez,
Johnson, and Riemesch contend that they were not served at
all as evidenced by the unexecuted summons docketed by the
Clerk's office. (Id. at 4; Process Receipt and
Return [Doc. #13].) Arby's argues that, although its
summons was returned as executed, service of that summons did
not comply with Federal Rule of Civil Procedure 4(h).
(Defs.' Mem at 6; Process Receipt and Return [Doc. #12].)
When a defendant argues that service was improper, the
plaintiff bears the burden of establishing that the service
of process has been performed in accordance with the
requirements of Federal Rules of Civil Procedure Rule 4.
Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F.Supp.
519, 526 (M.D. N.C. 1996).
Rule of Civil Procedure 4(e), which governs service of
process upon individuals located in the United States,
provides that service may be accomplished by either (1)
delivering a copy of the summons and complaint to the
defendant personally or to a person of suitable age and
discretion then residing at the defendant's home or usual
place of abode or (2) delivering a copy of the summons and
complaint to an agent authorized by appointment or by law to
receive service of process. Fed.R.Civ.P. 4(e)(2)(A)-(C). Rule
4(h), which governs service of process upon a corporation,
provides that service may be accomplished by delivering a
copy of the summons and complaint to an officer or any other
agent authorized by appointment or by law to receive service
of process. Fed.R.Civ.P. 4(h)(1)(B). Service on a corporation
may also be accomplished “in the manner prescribed by
Rule 4(e)(1).” Fed.R.Civ.P. 4(h)(1)(A). Rule 4(e)(1)
provides that service of process may be accomplished pursuant
to the law of the state in which the district court sits.
North Carolina's requirements for service of process are
virtually identical for all practical purposes with the
requirements of the Federal Rules of Civil Procedure.
See N.C. R. Civ. P. 4(j)(1) & 4(j)(6).
Accordingly, Ms. Parham could have effectuated service
pursuant to Rule 4 of the Federal Rules of Civil Procedure or
North Carolina's laws for service of process. However,
she did not follow either.
Federal and North Carolina courts require that service of
process statutes be strictly construed and followed.
Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733
F.2d 1087, 1089 (4th Cir. 1984) (“[T]he rules are there
to be followed, and plain requirements for the means of
effecting service of process may not be ignored.”);
see also, Greenup v. Register, 410 S.E.2d
398, 400 ( N.C. Ct. App. 1991); Broughton v. Dumont,
259 S.E.2d 361, 363 ( N.C. Ct. App. 1979). This is true even
where defendants have actual notice of the action. Hoyle
v. United Auto Workers Local Union 5285, 444 F.Supp.2d
467, 474 (W.D. N.C. 2006); Stack v. Union Reg'l
Mem'l Med. Ctr., Inc ., 614 S.E.2d 378, 382 ( N.C.
Ct. App. 2005). When a statute provides for designated
methods of service and a plaintiff has failed to comply with
those methods, there is no valid service. Broughton,
259 S.E.2d at 363.
September 6, 2016, the Clerk issued summonses for Arby's,
Riemesch, Gomez, Dobbins, Williams, and Johnson. [Doc. #9.]
To date, only the summonses for Arby's, Dobbins, and
Williams have been returned executed. [Docs. #12, 13, 24.]
Therefore, as to the individual Defendants, only Dobbins and
Williams have been served. Riemesch, Gomez, and Johnson have
not been served, and, as a result, the Court has not acquired
jurisdiction over them.
summons issued for Arby's, the corporate defendant,
provided the name “Arby's Incorporation, Registered
Agent” and the 5503 South Miami Boulevard, Durham,
North Carolina 27703 address of the Arby's restaurant
where Ms. Parham worked. (Process Receipt and Return [Doc.
#24].) The Marshal recorded Arby's summons as having been
served when the summons was signed for by an assistant
manager of that Arby's restaurant. ([Doc. #12] at 4.)
However, the assistant manager of an individual Arby's
location is neither an officer nor an authorized agent for
the purposes of service. See, e.g., Wilson v.
WalMart Store, Inc., No. CV15-4283, 2016 U.S. Dist.
LEXIS 112618, at *5-9 (S.D.N.Y. Aug. 22, 2016) (finding that
service on assistant store manager of a local branch of a
national chain was not sufficient service on corporate
defendant). Here, despite explicit instruction from the
Magistrate Judge, the summons and complaint were not directed
or addressed to any officer or agent of Arby's as
required by both the Federal and North Carolina Rules of
Civil Procedure. See, e.g., Lane v.
Winn-Dixie Charlotte, Inc., 609 S.E.2d 456, 460
( N.C. Ct. App. 2005) (finding summons defective on its face
for failure to designate any person authorized by North
Carolina Rule of Civil Procedure 4(j)(6)). Therefore, Ms.
Parham's attempted service on Arby's was defective,
and, as a result, the Court has not acquired jurisdiction
Parham's Complaint, read in the light most favorable to
her, seems to assert causes of action for sexual harassment
against Dobbins and hostile work environment and retaliation
against both Dobbins and Williams. (Compl. at 2.) Title VII
of the Civil Rights Act of 1964 (“Title VII”)
states that “[i]t shall be an unlawful employment
practice for any employer . . . to discriminate against any
individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such
individual's . . . sex . . . .” 42 U.S.C. §
2000e- 2(a)(1). Sexual harassment, hostile work environment,
and retaliation are all claims that may be brought under
Title VII. See, e.g., Balas v. Huntington
Ingalls Indus., Inc., 711 F.3d 401 (4th Cir. 2013).
However, Title VII “do[es] not provide for causes of
action against ...