United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen, United States District Judge
MATTER is before the Court on the Motion to Dismiss
(Doc. No. 4) filed jointly by Defendant Craig Cook and
Defendant Berry Plastics Global Group, Inc. Plaintiff William
Wrenwick, acting pro se, has responded. The matter
is now ripe for decision. For the reasons set forth below,
Defendants' Motion is granted in part and denied in part
William Wrenwick (“Wrenwick”) was employed as a
truck driver by Defendant Berry Plastics/ AEP Industrial
(“Berry”). Wrenwick was terminated on March 9,
2017, after a conversation with Defendant Craig Cook
(“Cook”), an HR Manager for Berry.
filed a Charge of Discrimination with the EEOC on April 19,
2017, alleging that he was fired out of retaliation in
violation of Title VII of the Civil Rights Act of 1964. The
EEOC issued a Dismissal and Notice of Rights to Wrenwick on
April 21, 2017.
subsequently brought this action against Cook and Berry,
alleging that he was terminated from his position because of
discrimination for his religious beliefs. Wrenwick, acting
pro se, served both Defendants by certified mail at
the same address in Matthews, North Carolina.
Cook and Berry collectively filed this Motion to Dismiss
pursuant to Rules 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6)
of the Federal Rules of Civil Procedure.
STANDARD OF REVIEW
a federal court may exercise personal jurisdiction over a
defendant, the procedural requirement of service of summons
must be satisfied.” Omni Capital Int'l, Ltd. v.
Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987).
“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). “Once service has been
contested, the plaintiff bears the burden of establishing the
validity of service pursuant to Rule 4.”
O'Meara v. Waters, 464 F.Supp.2d 474, 476 (D.
faced with a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Court must
“accept as true all well-pleaded allegations and . . .
view the complaint in a light most favorable to the
plaintiff.” Mylan Labs, Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). The Court “assume[s]
the veracity” of these factual allegations, and
“determine[s] whether they plausibly give rise to an
entitlement to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). However, the court “need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments.” E. Shore Mkts., Inc. v.
J.D. Assocs. LLP, 213 F.3d 175, 180 (4th Cir. 2000).
Thus, to survive a motion to dismiss, the plaintiff must
include within his complaint “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Iqbal,
556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
Service of Process
Berry argues that Wrenwick's summons and service of
process upon it was deficient in two ways. First, Berry
argues that Wrenwick failed to address the summons to the
correct legal entity, which is named “Berry Global
Films, LLC.” Second, Berry claims that Wrenwick failed
to identify an agent or officer that is qualified to accept
service on behalf of Berry in his summons and accordingly did
not effectuate service upon an authorized agent or officer.
Rule 4(a) of the Federal Rules of Civil Procedure, a summons
must name the proper parties and must be directed to the
defendant. Further, under Rule 4(h), service on a corporation
requires a plaintiff to either follow the procedures of the
applicable state law or to deliver a copy of the summons and
the complaint to “an officer, a managing or general
agent, or any other agent authorized by appointment or by law
to receive service of process.” Because Wrenwick
provided the incorrect name ...