United States District Court, E.D. North Carolina, Eastern Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE.
April 28, 2017, Josephine Cole Williams ("Williams"
or "plaintiff') filed a pro se complaint against the
North Carolina Administrative Office of the Courts, Sara Beth
Fulford Rhodes, Clerk of Superior Court for Pitt County
("Rhodes"), and Katheryn Watson, Assistant Clerk of
Superior Court for Pitt County ("Watson")
(collectively "defendants") seeking relief under
the Americans with Disabilities Act ("ADA"), 42
U.S.C. §§ 12101-12213. See Compl. [D.E. 1] 1, 4. On
June 20, 2017, defendants moved to dismiss the complaint
pursuant to Rules 12(b)(2), (5), and (6) of the Federal Rules
of Civil Procedure [D.E. 18] and filed a supporting
memorandum [D.E. 19]. On August 14, 2017, Williams responded
in opposition [D.E. 24]. On September 14, 2017, Williams
moved for leave to amend her complaint and filed a memorandum
in support [D.E. 26]. On September 22, 2017, Williams filed a
second motion for leave to amend her complaint [D.E. 27], and
on September 29, 2017, Williams filed a corrected motion to
amend her complaint [D.E. 28]. On October 12, 2017,
defendants responded in opposition to Williams's motions
to amend her complaint [D.E. 30]. As explained below,
defendants' motion to dismiss for failure to effect
service is granted, and Williams's motions to amend her
complaint are denied as futile.
2007, Williams began working in the Pitt County Clerk of
Superior Court Office. See Compl. [D.E.1] ¶ 6.
In 2007, Williams hurt her back in a car accident. See id.
¶ 8. In 2010, Williams received a new job assignment and
started to have back pain due to her job duties, which
required her to stand, bend, stoop, lift, push, and pull. See
Id. ¶¶ 10-11. Williams obtained a letter
from an assistant nurse practitioner advising Williams to
move to a more sedentary position, to wear athletic shoes to
work, and to use an ergonomic chair. See Id. ¶
12; Ex. A [D.E. 1-1]. Williams provided the letter to Rhodes
and requested the accommodations. See Compl. ¶ 13. Upon
request from Rhodes, Williams also obtained a note from a
physician. See Id, ¶¶ 13-14; Ex. B [D.E.
1-2]. Rhodes then told Williams that in order to obtain an
accommodation she would need a letter from aspecialist. See
Compl. ¶ 15. Williams's employer never gave her the
requested accommodations. See Id. ¶
16. On July 21, 2010, Williams informed Watson that her
workstation at the public counter was causing her problems
and that she would like to move to another position in the
office. See Id. ¶ 18. Watson denied the
request. See Id. On July 30, 2010, Ford Heath, a
Judicial Branch Risk Manager for the N.C. Administrative
Office of the Courts, evaluated Williams's workstation.
See Id. ¶ 19. Several months later, Williams
informed Heath that she wanted to file a workers'
compensation claim, and Williams was moved to a different
workstation and permitted to sit for three hours per day.
See Id. ¶ 20.
October 17, 2011, Williams met with Rhodes and Watson, and
they told her not to speak about her back issues in the
office anymore because her comments were causing a negative
work environment. See Id. ¶ 22. On December 7,
2011, Williams filed a grievance with the Administrative
Office of the Courts for workplace harassment and a hostile
work environment under Title VI and VH of the Civil Rights
Act of 1964. See Id. ¶ 23; Ex. F [D.E.1-6]. The
grievance did not concern alleged disability discrimination.
See Ex. F [D.E. 1-6]. On June 5, 2013, Williams had foot
surgery and was placed on "light duty" for two to
three weeks. See Compl. ¶ 23. On July 3, 2014, pursuant
to her doctor's instructions, Williams took leave for
lower back pain. See Id, ¶ 24. On July 21,
2014, Williams returned to work. See Id. On
September 25, 2014, pursuant to her doctor's
instructions, Williams took leave for lower back pain, and
was scheduled to return on October 29, 2014. See Id.
¶ 26. Williams did not, however, return to work on
October 29, 2014. Id. Instead, she scheduled back
surgery for November 18, 2014. See Id. After the
November 18, 2014 surgery, Williams was "confined to the
house" for six months. See Id. ¶ 27.
Williams did not return to work during 2015, and on November
20, 2015, she had a second back surgery. See Id.
¶ 28. This surgery left her confined to the house for
six more months. See Id. On June 9, 2016, defendants
terminated Williams's employment because she was unable
to return to work. See Id. ¶ 29. On April 28,
2017, Williams filed this complaint alleging that
defendants' failure to accommodate violated the ADA. See
Id. ¶¶ 32-35.
the defendants' motion to dismiss based on improper
service of process pursuant to Federal Rule of Civil
Procedure 12(b)(5), Federal Rule of Civil Procedure 4
describes the procedure for properly effecting service of a
summons. See Fed.R.Civ.P. 4. If a plaintiff fails to properly
effect service of process within 90 days of filing
the complaint, the court must dismiss the action without
prejudice, unless the plaintiff can show good cause for the
failure to properly serve the defendants. Fed.R.Civ.P. 4(m).
However, "[p]ro se status ... is insufficient to
establish good cause, even where the pro se plaintiff
mistakenly believes that service was made properly."
Hansan v. Fairfax Cty. School Bd., 405 Fed.Appx.
793, 794 (4th Cir. 2010) (per curiam) (unpublished).
"Absent waiver or consent, a failure to obtain proper
service on the defendant deprives the court of personal
jurisdiction over the defendant." Koehler v.
Dodwell, 152 F.3d 304, 306 (4th Cir.1998). When proper
service of process is contested, plaintiff must prove proper
service. See Scott v. Md. State Dep't of Labor,
673 Fed.Appx. 299, 304 (4th Cir. 2016) (per curiam)
(unpublished); Reale v. Wake Cty. Human Servs.,
No.5:11-CV-682-D, 2013 WL2635181, at *1 (E.D. N.C. June 12,
failed to properly serve all three defendants. The N.C.
Administrative Office of the Courts is a state agency and
should be served in accordance with Rule 4(j)(2). Rule
4(j)(2)(B) requires that a state-created governmental
organization be served by, "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."
Fed.R.Civ.P. 4(j)(2)(B). Rule 4(j)(4) of the North Carolina
Rules of Civil Procedure details the requirements for serving
process on a state agency. See N.C. Gen. Stat. § 1 A-1,
Rule 4(j)(4). A state agency can be properly served
by personally delivering a copy of the summons and of the
complaint to the process agent appointed by the agency in the
manner hereinafter provided; by mailing a copy of the summons
and of the complaint, registered or certified mail, return
receipt requested, addressed to said process agent; or by
depositing with a designated delivery service authorized
pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons
and complaint, addressed to the process agent, delivering to
the addressee, and obtaining a delivery receipt.
Id. Rule 4(j)(4)(a). State agencies are responsible
for appointing a process agent and filing the name and
address of the agent with the Attorney General. See
Id. 4(j)(4)(b). If a state agency fails to designate
a process agent, service may made upon the agency by serving
the Attorney General or a deputy or assistant attorney
general. See Id. 4(j)(4)(c). The N.C. Administrative
Office of the Courts has designated Jonathan R. Harris,
General Counsel, as its process agent. See North Carolina
Department of Justice, Process Agent Directory (last visited
Dec. 28, 2017); [D.E. 19] 6. Williams did not properly serve
Harris on behalf of the N.C. Administrative Office of the
Courts. Indeed, Williams admits that she failed to properly
serve the N.C. Administrative Office of the Courts.
See [D.E.24] ¶1;[D.E.24-1]2.
service of process also was deficient because she personally
sent the defendants a copy of the summons and complaint via
certified mail, which she attests to in the affidavits of
service she filed with the court. See [D.E. 10-13]. Pursuant
to the Federal Rules of Civil Procedure, a party to the case
may not serve process. Rule 4(c)(2) specifically provides
that, "[a]ny person who is at least 18 years old and not
a party may serve a summons and complaint." Fed.R.Civ.P.
4(c)(2). Therefore, "[e]ven when service is effected by
use of the mail, only a nonparty can place the summons and
complaint in the mail." Constien v. United
States, 628 F.3d 1207, 1213 (10th Cir. 2010); Pitts
v. O'Geary, No. 5:13-CV-116-D, 2014 WL 229350, at *4
(E.D. N.C. Jan. 21, 2014) (unpublished); Knotts v. Univ.
N.C. at Charlotte, No. 3:08-CV-478, 2011 WL 650493, at
*8-9 (W.D. N.C. Feb. 10, 2011) (unpublished) ("Rule 4(c)
deals with 'who may serve' while Rule 4(e) and Rule
4(j) deal with the method of service. Nothing in the plain
language of Rule 4 or the advisory notes suggest that Rule
4(j) is meant to vitiate Rule 4(e)'s requirement that
someone other than a party effect service."). Thus, the
court lacks personal jurisdiction over the defendants until
Williams effects proper service of process or obtains waivers
of service under Rule 4(d). See, e.g., Murphy Bros.. Inc.
v. Michetti Pipe Stringing. Inc,, 526 U.S. 344, 350
(1999). Accordingly, the court grants defendants' motion
to dismiss for failure to effect service and dismisses the
action without prejudice.
motion to dismiss under Rule 12(b)(6) tests the
complaint's legal and factual sufficiency. See
Ashcroft v. Iqbal, 556 U.S. 662, 677-80, 684 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63
(2007); Giarratano v. Johnson, 521 F.3d 298, 302
(4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a
pleading "must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face." Iqbal, 556 U.S. at 678
(quotation omitted); see Twombly, 550 U.S. at 570;
Giarratano, 521 F.3d at 302. In considering the
motion, the court must construe the facts and reasonable
inferences "in the light most favorable to the
[nonmoving party]." Massey v. Qjaniit, 759 F.3d
343, 347, 352-53 (4th Cir. 2014) (quotation omitted); see
Clatterbuck v. City of Charlottesville, 708 F.3d
549, 557 (4th Cir. 2013) abrogated on other
grounds by Reed v. Town of Gilbert, 135 S.Ct.
2218 (2015). A court need not accept as true a
complaint's legal conclusions, "unwarranted
inferences, unreasonable conclusions, or arguments."
Giarratano, 521 F.3d at 302 (quotation omitted); see
Iqbal, 556 U.S. at 678-79. Rather, a plaintiffs
allegations must nudge her claims beyond the realm of
"mere possibility" into "plausib[ility]."
Iqbal, 556 U.S. at 678-79; Twombly, 550
U.S. at 570.
standard used to evaluate the sufficiency of a pleading is
flexible, "and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson, 551
U.S. at 94 (quotation omitted). Erickson, however,
does not ''undermine [the] requirement that a
pleading contain 'more than labels and
conclusions.'" Giarratano, 521 F.3d at 304
n.5 (quoting Twombly, 550 U.S. at 555); see
Iqbal, 556 U.S. at 677-83; Coleman v. Md. Court
of Appeals. 626 F.3d 187, 190 (4th Cir. 2010),
affd,566 U.S. 30 (2012); Nemet ...