United States District Court, E.D. North Carolina, Southern Division
D.B.G., a minor, CARLOS BAEZA CORDOVA, and TERESA DE JESUS GARCIA GONZALEZ, Plaintiffs,
ROBESON COUNTY BOARD OF EDUCATION; LANCE ADAM HAIR individually and in his official capacity; JOHNNY HUNT, individually and in his official capacity as Superintendent of Robeson County Public Schools; ROBERT LOCKLEAR, individually and in his official capacity as Principal of St. Paul's Elementary School; RAYMOND CUMMINGS, individually and in his official capacity as Director of Transportation of Robeson County Public Schools; and CHRISTOPHER JONES, individually and in his official capacity as TIMS Coordinator for the public schools of Robeson County, Defendants.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on defendants Robeson County Board
of Education ("School Board"), Robert Locklear
("Locklear"), Raymond Cummings
("Cummings"), and Christopher Jones'
("Jones", collectively "defendants")
motions to dismiss for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1),
insufficient service of process pursuant to Federal Rule of
Civil Procedure 12(b)(5),  and failure to state a claim upon which
relief can be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6). (DE 35). The issues raised have been fully
briefed by the parties, and in this posture are ripe for
ruling. For the following reasons, defendants' motion is
granted in part and denied in part as set forth herein.
OF THE CASE
case concerns liability for an alleged sexual assault of a
student by a school bus driver. Plaintiffs commenced this
action on July 10, 2018. Plaintiffs filed proof of service on
August 16, 2018. In their amended complaint dated September
10, 2018, plaintiffs assert claims for violation of 42 U.S.C.
§ 1983 by defendants; state law negligence by defendant
School Board and defendant Locklear in his official capacity,
and by defendant Cummings and defendant Jones in their
official and individual capacities; battery, false
imprisonment, and intentional infliction of emotional
distress against defendant Hair in his individual capacity
and as an employee of defendant School Board; negligent
infliction of emotional distress against defendant Hair in
his individual and in his capacity as an employee of
defendant School Board. Plaintiffs seek compensatory and
October 30, 2018, defendants filed in the instant motion to
dismiss. Defendants argue that defendant Jones has not been
served with the summons and complaint in this case;
plaintiffs' official capacity claims should be dismissed
because they are duplicative of plaintiffs' claims
against defendant School Board; the complaint fails to allege
respondeat superior liability against defendant
School Board for the alleged actions of defendant Hair;
plaintiffs' claims against defendants are barredby
governmental immunity; and punitive damages against defendant
School Board fail to state a valid claim. In support of the
motion, plaintiffs submit affidavits from defendant Jones
("Jones Aff" (DE 35-1)), Melody Coons ("Coons
Aff" (DE 35-2)), and Hugh Mcllwain ("Mcllwain
Aff." (DE 35-3)). Defendants also filed their answer on
October 30, 2018.
November 20, 2018, plaintiffs filed their response in
opposition to the motion to dismiss. Plaintiffs argue that
defendants did not rebut the presumption of service;
defendants Cummings and Jones are public employees and
therefore governmental immunity does not apply to claims
against them; plaintiffs may pursue state law claims for
negligence against both defendant School Board and defendants
Locklear, Cummings, and Jones; respondeat superior
liability is permissible as against defendant School Board
for the actions of its employee, defendant Hair;
defendants' motion does not address plaintiffs'
§ 1983 claims; and plaintiff waives any claim to
punitive damages against defendant School Board for vicarious
December 3, 2018, defendants replied to plaintiffs'
response opposing the motion to dismiss. Defendants argue
that presumptive service is not implicated in this case; and
plaintiffs' official capacity claims against defendants
Locklear, Cummings, and Jones are redundant. In support of
defendants' reply, they attach the affidavit of Robert
Locklear ("Locklear Aff." (DE 45-1)).
meantime, plaintiffs also filed a motion for extension of
time to serve defendant Jones on November 20, 2019, which the
court later granted on January 14, 2019. Plaintiffs then
filed a second motion for extension of time to serve
defendant Jones on February 11, 2019, which the court granted
on February 15, 2019.
facts alleged in the complaint may be summarized as
follows. During the 2012-2013 school year, D.B.G.
was enrolled in fifth grade at St. Paul's Elementary
School, a public school operated by Defendant School Board in
Robeson County. (Compl. ¶ 20). At all relevant times, in
accordance with N.C. G.S. § 115C-241, Defendant School
Board provided transportation to its enrolled students on
buses that followed routes and schedules determined by
Defendant School Board and its agents and employees.
(Id. ¶ 21). During the 2012-2013 school year,
the minor plaintiff D.B.G. was assigned to the bus driven by
Defendant Hair, who was supposed to pick her up and drop her
off at a designated stop near her home. Id. ¶
the 2012-2013 school year, defendant Hair allegedly used his
used his authority, control, and access to plaintiff D.B.G.
to subject her to sexual improprieties, set forth fully in
plaintiffs' complaint. (See id. ¶¶
24-27). Plaintiffs allege that before defendant Hair began to
exploit and abuse plaintiff D.B.G., he had already been
accused of impropriety with another female student on his
bus. (Id. ¶ 28). The accusation of impropriety
with a student was made to defendants School Board, Locklear,
Cummings, and/or Jones. (Id.). However, defendants
did not take any actions to train or monitor defendant Hair
or take other appropriate actions, such as investigating
defendant Hair, report defendant Hair to law enforcement, or
fire or discipline defendant Hair. (Id. ¶¶
December 2013, a teacher learned that defendant Hair was
sending obscene pictures to students. (Id.
¶37). A criminal investigation followed. (Id.).
Defendant Hair admitted to numerous criminal offenses against
schoolchildren, including plaintiff D.B.G.. (Id.).
He eventually pled guilty to two counts of felonious
restraint, two counts of using minors to assist in obscenity,
two counts of disseminating obscene material to minors, and
two counts of taking indecent liberties with children.
(Id.). Defendant Hair entered his guilty plea
pursuant to a bargain with the prosecutor, and the offenses
to which he pled guilty did not encompass all of his
misconduct with children in the Robeson County public
Standard of Review
motion to dismiss under Rule 12(b)(1) challenges the
court's subject matter jurisdiction. Such motion may
either 1) assert the complaint fails to state facts upon
which subject matter jurisdiction may be based, or 2) attack
the existence of subject matter jurisdiction in fact, apart
from the complaint. Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982). When a defendant challenges the factual
predicate of subject matter jurisdiction, a court "is to
regard the pleadings' allegations 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.
Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
The nonmoving party in such case "must set forth
specific facts beyond the pleadings to show that a genuine
issue of material fact exists." Id.
motion under Rule 12(b)(5) challenges the sufficiency of
service of process. See Fed.R.Civ.P. 12(b)(5).
"When the process gives the defendant actual notice of
the pendency of the action, the rules ... are entitled to a
liberal construction" and "every technical
violation of the rule or failure of strict compliance may not
invalidate the service of process." Armco, Inc. v.
Penrod-StaufferBldg. Sys., Inc., 733 F.2d 1087, 1089
(4th Cir. 1984). Nevertheless, "the rules are there to
be followed, and plain requirements for the means of
effecting service of process may not be ignored."
Id. The plaintiff bears the burden of establishing
that process properly has been served. Dalenko v.
Stephens, 917 F.Supp.2d 535, 542 (E.D. N.C. 2013);
see also Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56,
60 (4th Cir. 1993) (holding the plaintiff must prove service
of process if challenged).
survive a motion to dismiss" under Rule 12(b)(6),
"a complaint must contain 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, 663 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "Factual
allegations must be enough to raise aright to relief above
the speculative level." Twombly, 550 U.S. at
555. In evaluating whether a claim is stated, "[the]
court accepts all well-pled facts as true and construes these
facts in the light most favorable to the plaintiff," but
does not consider "legal conclusions, elements of a
cause of action, . . . bare assertions devoid of further
factual enhancement[, ] . . . unwarranted ...