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Williams v. N.C. Administrative Office of Courts

United States District Court, E.D. North Carolina, Eastern Division

December 29, 2017




         On 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.


         In 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.

         On 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.


         As for 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, 2013) (unpublished).

         Williams 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.

         Williams's 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.


         A 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.

         The 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 ...

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