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Anderson v. Jordan

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

May 24, 2018

EDWARD ANDERSON, Plaintiff,
v.
JASON JORDAN, CITY OF WILMINGTON, NORTH CAROLINA, JOHN STAPLETON, FISHER AND PHILLIPS LLP and WASTE MANAGEMENT OF CAROLINAS, INC., Defendants.

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         In 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.

         Defendant 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.

         Plaintiff 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.

         The 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].

         On May 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.

         All 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.

         DISCUSSION

         At the 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.

         I. 12(b)(5)Motions

         Rule 4 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).

         Rule ...


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