United States District Court, W.D. North Carolina, Statesville Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant's Motion
to Dismiss Plaintiff's Complaint (Doc. No. 8) pursuant to
Rules 12(b)(2), (4), (5), and (6) of the Federal Rules of
Civil Procedure for lack of personal jurisdiction,
insufficient process, insufficient service of process, and
for failure to state a claim upon which relief can be
granted. Because Plaintiff appears pro se, the Court
issued a Roseboro notice (Doc. No. 10) informing
Plaintiff of the burden she carries in responding to
Defendant's Motion. Plaintiff responded (Doc. No. 11),
and this matter is now ripe for review. For the following
reasons, the Court DENIES Defendant's Motion.
January 30, 2017, Plaintiff, an African-American female,
filed suit against Defendant, the Chairman of the Catawba
County Board of Education in his official capacity, for
alleged race discrimination and retaliatory acts that took
place while Plaintiff was employed by Defendant. (Doc. No. 1,
began work as a substitute teacher for the Catawba County
public school system in November of 2015. Id. at 4.
On May 9, 2016, she was selected to teach at Maiden
Elementary, with the expectation that she also be present to
teach on May 16, May 23, May 27, and May 31. Id. On
May 23, 2016, Plaintiff alleges that she was approached by
two African-American students who informed Plaintiff that
they were being treated unfairly by their permanent teacher
due to their race. Id. Later that same day,
Plaintiff approached another of the school's permanent
teachers and informed him of the possible discrimination
happening against the two students. Id. at 5. The
next morning, May 24, 2016, Plaintiff alleges that she was
ordered to not report to Maiden Elementary School for the
remaining days of her teaching assignment. Id. at 6.
When Plaintiff contacted the principal at Maiden Elementary
inquiring about her dismissal, the principal allegedly told
Plaintiff she was not the “best match” for the
group of students to which she had been assigned.
20, 2016, Plaintiff filed a race discrimination complaint
with the county's Assistant Superintendent. Id.
at 8. The Assistant Superintendent conducted an
investigation. Id. On October 7, 2016, he informed
Plaintiff via letter that his investigation revealed no
discrimination against Plaintiff on the basis of race.
Id. at 10. Plaintiff then contacted the county's
Superintendent, who allegedly informed Plaintiff that he
agreed with the Assistant Superintendent's findings and
conclusions. Id. at 12. On October 13, 2016,
Plaintiff filed a charge of race discrimination and
retaliation with the Equal Employment Opportunity Commission
(“EEOC”). Id. After receiving a Notice
of Suit Right from the EEOC on Nov. 3, 2016, Plaintiff then
filed this present suit. Id. at 15. On April 7,
2017, Defendant moved to dismiss Plaintiff's complaint
(Doc. No. 8).
STANDARD OF REVIEW
Rules 12(b)(2), (4) and (5), of the Federal Rules of Civil
invoking federal jurisdiction has the burden of establishing
that personal jurisdiction exists over the defendant. New
Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416
F.3d 290, 294 (4th Cir. 2005); Combs v. Bakker, 886
F.2d 673, 676 (4th Cir. 1989). On a motion to dismiss
pursuant to Rule 12(b)(2), where a defendant provides
evidence that jurisdiction does not exist, a plaintiff must
come forward with evidence sufficient to counter that of
defendant. IMO Industries, Inc. v. Seim S.R.L.,
3:05-CV-420-MU, [2006 BL 145365], 2006 U.S. Dist. LEXIS
92554, 2006 WL 3780422, at *1 (W.D. N.C. Dec. 20, 2006).
Rules 12(b)(4) and (5), "the plaintiff bears the burden
of establishing that the service of process has been
performed in accordance with the requirements of Federal Rule
of Civil Procedure 4." Elkins v. Broome, 213
F.R.D. 273, 275 (M.D. N.C. 2003). Where service of process
has given the defendant actual notice of the litigation,
"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." Armco, Inc. v.
Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089
(4th Cir. 1984). However, this does not give the Court
license to ignore the plain requirements for the means of
effecting service of process contained in the rules. See
Id. Under North Carolina law, "a plaintiff who
fails to comply with [service of process statutes], even
where actual notice occurs, does not properly serve the
defendant." Shaver v. Cooleemee Volunteer Fire
Dep't., No. 1:07-cv-175, [2008 BL 71005], 2008 WL
942560, at *2 (M.D. N.C. 2008) (citing Stack v. Union
Reg'l Mem'l Med. Ctr., Inc., 614 S.E.2d 378, 382
( N.C.App. 2005); Greenup v. Register, 410 S.E.2d
398, 400 ( N.C.App. 1991); Broughton v. Dumont, 259
S.E.2d 361, 363 ( N.C.App. 1979)).
Rule 12(b)(6) of the Federal Rules of Civil
12(b)(6) allows a defendant to move for dismissal when a
plaintiff has not stated a claim that is recognized by law.
In order to survive a Rule 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted,
Plaintiff's "complaint must contain sufficient
factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Ashcroft
v. Iqbal, 556 U S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). In order to be plausible, a complaint must
contain sufficient factual matter "that allows the court
to draw the reasonable inference that the defendant is
liable." Id. Rule 8(a) requires that a
plaintiff's complaint must contain "a short and
plain statement of the claim showing that the pleader is
entitled to relief." Fed. R. Civ. Pro. 8(a). While a
high level of factual detail is not required, a complaint
needs more than "an unadorned,
Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007)).
supports its Motion to Dismiss with two arguments: (1) the
complaint should be dismissed under Rules 12(b)(2), (4), and
(5) because it fails to correctly name “Catawba County
Board of Education” as a defendant in the caption of
her complaint pursuant to N.C. Gen. Stat. § 115C-40; and
(2) the complaint should be dismissed because it is an
“official-capacity” claim and is therefore
duplicative of Plaintiff's ...