United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen, Is; United States District Judge.
MATTER is before the Court on the Motion to Dismiss
(Doc. No. 13) filed by Defendant Berry Global Films, LLC.
Plaintiff William Wrenwick has responded, and Defendant has
filed a reply. Plaintiff filed a surreply in this matter on
May 8, 2018, without leave of the Court. Defendant has also
moved to strike this surreply, and Plaintiff had an
opportunity to respond. This matter is now ripe for
William Wrenwick (“Wrenwick”) was employed as a
truck driver by Defendant Berry Global Films, LLC
(“Berry Global Films”). Wrenwick was terminated
on March 9, 2017, after a conversation with Defendant Craig
Cook (“Cook”), an HR Manager for Berry Global
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.
acting pro se, subsequently brought this action
against Cook and Berry Global Films, alleging that he was
terminated from his position out of retaliation. In his
initial Complaint, Wrenwick mislabeled Berry Global Films as
“Berry Plastics/ A.E.P. Industrial, a/k/a Berry
Plastics Global Group, Inc./ A.E.P. Industries, Inc.”
Berry Global Films and Cook jointly filed a motion to dismiss
the original Complaint. On January 23, 2018, this Court
granted in part and denied in part that motion, dismissing
all claims against Cook but quashing the service of process
on Berry Global Films. The Court allowed Wrenwick twenty-one
days to amend his Complaint, file a new summons, and properly
serve Berry Global Films.
filed his Amended Complaint on February 15, 2018, correctly
identifying Berry Global Films. Berry Global Films again
moves to dismiss the Amended Complaint for lack of personal
jurisdiction because Wrenwick's summons and service of
process were defective. Berry Global Films also moves to
dismiss the Amended Complaint for failure to state a claim.
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)).
Motion to Strike
filed a surreply in this matter, labeled “Continuing
Original Brief, ” on May 8, 2018. A surreply is not
allowed by the Local Civil Rules absent leave of the Court.
Wrenwick did not request leave of the Court to file a
surreply more than a month after the close of the briefing
schedule in this matter, nor does Wrenwick offer any
rationale for his additional late filing. And finally, ...