United States District Court, E.D. North Carolina, Western Division
Earl Britt, Senior U.S. District Judge.
matter is before the court on the 26 April 2017 motion to
dismiss filed by defendant UNC Healthcare. (DE # 12.)
Plaintiff filed a memorandum in opposition on 18 May 2017.
(DE # 18.) UNC Healthcare did not file a reply brief, and the
time within which to do so has expired. This matter is
therefore ripe for disposition.
Annmarie Diede was employed by UNC Healthcare in the Central
Processing Department from 19 January 2015 to 21 April 2015.
(Compl., DE # 4, ¶¶ 2, 5.) Following the
termination of her employment, plaintiff filed a motion for
leave to proceed in forma pauperis and a proposed
complaint in this court. (DE # 1.) Plaintiff's complaint
names the following as defendants in this action: UNC
Healthcare; Beth Paganini-Finch; Bradley Jensen; Christina
Vanessa Daniels, Rajai Hussari, and Jerry Unknown. (DE # 4,
at 1.) In the complaint, plaintiff alleges that she was
sexually harassed by Hussari, and that she was terminated
following her complaints about Hussari's conduct in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e
et seq. (Id. at 4-5.) Plaintiff also
alleges a state law claim for assault and battery against
Hussari. (Id. at 4.) She seeks recovery of back pay,
reinstatement of her former job, and a trial by jury on all
issues. (Id. at 5.)
January 2017, Magistrate Judge Robert T. Numbers, II granted
plaintiff's motion for leave to proceed in forma
pauperis and ordered that plaintiff's complaint be
filed. (DE # 3.) In the same order, Judge Numbers provided a
memorandum and recommendation on frivolity review pursuant to
28 U.S.C. § 1915(e)(2), in which he recommended that
some of plaintiff's claims be dismissed without
prejudice, in part, because she failed to state a claim upon
which relief may be granted. (Id.) Judge Numbers
also recommended that the court dismiss plaintiff's
claims against all defendants except for UNC Healthcare and
Hussari. (Id.) On 24 February 2017, the court
adopted, in its entirety, the reasoning in Judge Number's
memorandum and recommendation and dismissed plaintiff's
battery claim and all claims against Paganini-Finch, Daniels,
Jensen, and Unknown. (DE # 7.) Plaintiff's claims of
hostile work environment, retaliation, and assault against
UNC Healthcare and Hussari remain.
motion to dismiss, UNC Healthcare moves for dismissal based
on lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1). (Def.'s Mem. Supp. Mot.
Dism., DE # 13, at 5.) In the alternative, UNC Healthcare
seeks dismissal of the claims against it for lack of personal
jurisdiction due to plaintiff's failure to properly serve
it under Federal Rules of Civil Procedure 12(b)(2) and
12(b)(5), or in the further alternative dismissal under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim. (Id. at 10, 12.)
Standards of Review
to Rule 12(b)(1), a court must dismiss all or part of an
action over which it lacks subject matter jurisdiction.
Whether subject matter jurisdiction exists is a threshold
question that must be addressed by the court before
considering the merits of the case. Jones v. Am. Postal
Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). A
plaintiff seeking federal jurisdiction has the burden of
proving that subject matter jurisdiction exists. Williams
v. United States, 50 F.3d 299, 304 (4th Cir. 1995).
“In determining whether jurisdiction exists, the
district court is to regard the pleadings as mere evidence on
the issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary
judgment.” Richmond, Fredericksburg & Potomac
R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991) (citations omitted).
12(b)(2) and 12(b)(5)
to properly serve a defendant prevents a court from obtaining
personal jurisdiction over the defendant and entitles the
defendant to dismissal under Rule 12(b)(2).”
Fordham v. Doe, No. 4:11-CV-32-D, 2011 WL 5024352,
at *3 (E.D. N.C. Oct. 20, 2011) (citation omitted). When a
defendant challenges the court's personal jurisdiction
pursuant to Rule 12(b)(2), “the plaintiff bears the
burden [of] making a prima facie showing of a sufficient
jurisdictional basis to survive the jurisdictional
challenge.” Consulting Eng's Corp. v. Geometric
Ltd., 561 F.3d 273, 276 (4th Cir. 2009). Similarly, a
plaintiff bears the burden of establishing the validity of
service when a defendant seeks dismissal for insufficient
service of process pursuant to Rule 12(b)(5).
Fordham, 2011 WL 5024352, at *3. “Therefore,
dismissal is appropriate under both Rules 12(b)(2) and
12(b)(5) if the court determines the plaintiff failed to
properly serve [defendant].” Id. (citations
to Rule 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion
challenges the legal sufficiency of a complaint, and the
relevant inquiry is whether the plaintiff's factual
allegations are “enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint attacked
by a Rule 12(b)(6) motion to dismiss will survive if it
contains “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 (2009) (quoting Twombly, 550 U.S. at 570). When
ruling on the motion, the court “must accept as true
all of the factual allegations contained in the
complaint.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (citing Twombly, 550 U.S. at 555-56).
Additionally, the court may consider documents attached to
the complaint. United States ex rel. Constructors, Inc.