United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
matter is before the Court on several motions: plaintiffs
motion for extension of time [DE 6], plaintiffs motion for
service by publication [DE 7], defendants Fisher and
Phillips, LLP and John Stapleton's motion to dismiss and
motion for judgment on the pleadings [DE 18], defendant City
of Wilmington's motion to dismiss [DE 22], defendant
Waste Management of Carolinas' motion to dismiss [DE 27],
defendant Jason Jordan's motion to dismiss [DE 33],
plaintiffs motion to strike defendants Fisher and Phillips,
LLP and John Stapleton's memorandum in support of their
motion, as well as John Stapleton's affidavit [DE 39],
plaintiffs motion to strike defendant Waste Management of
Carolinas' memorandum in support of its motion [DE 45],
plaintiffs motion for leave to file a surreply [DE 52],
plaintiffs motion for leave to file an amended surreply [DE
59], and plaintiffs motions for hearing [DE 55; DE 57]. The
matters are ripe for ruling.
2014, plaintiff was employed by defendant Waste Management of
Carolinas, Inc., as a garbage truck driver. While driving in
the early morning of June 2, 2014, plaintiff reached the
scene of a vehicle crash. According to plaintiff, after he
was waved through the scene by law enforcement, defendant
Jason Jordan, a fireman with defendant City of Wilmington,
followed him in a City of Wilmington Fire Department vehicle
and made plaintiff stop on the road. Then, defendant Jordan
blocked him from leaving, yelled at him, and threatened him.
A state trooper arrived at the scene. At this point,
plaintiff informed defendant Jordan and the state trooper
that he planned to file a complaint against defendant Jordan
and the City of Wilmington for violating his civil rights.
Jordan and the City of Wilmington contacted plaintiffs
employer, defendant Waste Management of Carolinas, Inc.,
about the incident. According to plaintiff, Jordan, the City
of Wilmington, and Waste Management then agreed together to
claim that plaintiff was stopped for speeding.
was terminated by Waste Management on July 14, 2014. On July
21, 2014, he filed a complaint with the Equal Employment
Opportunity Commission ("EEOC"), alleging he was
terminated for discriminatory reasons. Defendant Fisher and
Phillips, LLP, a law firm, and specifically defendant John
Stapleton, an attorney with the firm, drafted Waste
Management's position statement to the EEOC, denying
discrimination charges. In this statement, a footnote
referenced the dispute between plaintiff and the City of
Wilmington, describing it as a contested speeding ticket, and
stating that the City had contacted Waste Management seeking
information from the DriveCam in plaintiffs vehicle.
EEOC declined to act on plaintiffs discrimination claim, and
informed him of his right to sue on October 17, 2014. On
January 16, 2015, plaintiff filed suit in this court against
his employer, Waste Management, and three Waste Management
employees, alleging claims under Title VII, 42 U.S.C. §
1981, and common law wrongful discharge. Plaintiffs suit was
dismissed in part for failing to state a claim and in part
for failing to effect proper service. Anderson v. Waste
Management of Wilmington, et al, 7:17-CV-14-FL (E.D.
N.C. March 28, 2016) [DE 37].
30, 2017, plaintiff filed the instant lawsuit. This suit is
specifically focused on the June 2 incident, alleging first
that defendant Jordan violated his rights, and that Jordan
and the rest of the defendants conspired to violate his
rights. Specifically, plaintiff alleges one count of assault
against defendant Jordan, one count of false imprisonment
against defendant Jordan and the City of Wilmington, 42
U.S.C. § 1983 violations against defendant Jordan and
the City of Wilmington, a violation of what plaintiff cites
as N.C. G.S. § 58-156, but appears to be a reference to
North Carolina's exceptions to the general right-of-way
rules of the road for emergency vehicles, respondeat superior
claims against the City of Wilmington as defendant
Jordan's employer, and 42 U.S.C. § 1985 conspiracy
claims against all defendants.
defendants have moved to dismiss these claims on the basis of
insufficient service of process. Plaintiffs former employer,
Waste Management, has moved to dismiss for failing to state a
claim upon which relief can be granted. Fisher and Phillips,
LLP, and John Stapleton have also moved to dismiss for
failing to state a claim upon which relief can be granted
and, alternatively, judgment on the pleadings. Plaintiff also
filed several procedural motions.
outset, the Court notes that plaintiff is proceeding pro
se. As such, the Court construes his allegations
liberally. De 'Lonta v. Angelone, 330 F.3d 630,
633 (4th Cir. 2003). That liberality does not convert a
meritless suit into a meritorious one merely because the
plaintiff does not have an attorney. See Brown v.
Brock, 632 Fed.Appx. 744, 746 (4th Cir. 2015). Nor does
it free plaintiff from the constraints of Rule 11 of the
Federal Rules of Civil Procedure.
of the Federal Rules of Civil Procedure governs how to effect
service. Fed.R.Civ.P. 4. A defendant may move to dismiss a
claim when there is insufficient service of process.
Fed.R.Civ.P. 12(b)(5). If a defendant challenges the service
of process, the plaintiff bears the burden of showing it was
proper. See Plant Genetic Systems, N. V., v. Ciba
Seeds, 933 F.Supp. 519, 526 (M.D. N.C. 1996). A
defendant knowing about a lawsuit, or moving to dismiss it,
does not mean a plaintiff effected proper service. Pitts
v. O'Geary, 914 F.Supp.2d 729, 734 (E.D. N.C. 2012).