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Richardson v. Roberts

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

May 8, 2019

HILDA RICHARDSON, Plaintiff,
v.
VICKIE ROBERTS, Member Svcs Chief; DAN FOWELL; KRISTEN BIERLIN, HR Director; NC DEPARTMENT OF STATE TREASURER; and JOSEPHINE STITH, HR Generalist, Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant Kristen Bierlin's (“Bierlin”) motion to dismiss (DE 47) as well as remaining defendants' motion to dismiss (DE 45). Also before the court is defendants' motion to strike (DE 53) and plaintiff's motion to seal (DE 51). Plaintiff filed response in opposition to defendants' motions to dismiss but has not responded to defendants' motion to strike. The time to do so has expired. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court grants defendants' motions and plaintiff's motion.

         STATEMENT OF THE CASE

         As previously stated by the court, plaintiff, proceeding pro se, filed motion for leave to proceed in forma pauperis, along with proposed complaint and summonses, on January 22, 2018. Richardson v. Roberts, 355 F.Supp.3d 367, 369 (E.D. N.C. 2019). Magistrate Judge James E. Gates recommended that the motion be denied, and the court adopted the report and recommendation, ordering the plaintiff to pay the appropriate filing fee by April 5, 2018. On April 11, 2018, the filing fee was paid, and plaintiff's form complaint was filed the following day, alleging unlawful termination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (“Title VII”), based on disability discrimination. (See Compl. (DE 8)).

         Thereafter, the court issued notice to plaintiff for failure to make service within 90 days to all defendants, to which plaintiff responded. The court issued text order August 6, 2018, in which the court held that due to deaths in plaintiff's family and her misunderstanding regarding her responsibility to prosecute her case, among other reasons, good cause had been shown and plaintiff's service deadline was extended to September 3, 2018.

         On September 17, 2018, an attorney, Abraham P. Jones (“Jones”), sent letter to the court requesting an extension of time for service to be completed. On October 11, 2018, the court issued text order, allowing plaintiff until November 5, 2018 to either effect and prove service or show by that date what cause existed for continued maintenance of the case on the court's active docket in light of repeated failure to make service.

         On October 30, 2018, Jones filed notice of appearance on behalf of plaintiff as well as another motion to extend time for service, seeking an extension through November 30, 2018, which the court granted.

         On November 23, 2018, defendant Bierline filed motion to dismiss, arguing insufficient service of process. Plaintiff filed no direct response. Instead, on November 29, 2018, plaintiff filed another motion for extension of time for service, seeking extension to effect service of process to January 31, 2019. On December 22, 2018, remaining defendants also filed motion to dismiss, arguing insufficient service of process.

         On January 7, 2019, the court granted plaintiff's motion for extension of time and denied defendants' motions to dismiss, allowing plaintiff until January 31, 2019, to effect and prove service on the docket regarding this action. See Richardson, 355 F.Supp.3d at 372. The court held that although “plaintiff's counsel has not demonstrated good cause for failure to effectuate service on defendants and therefore an extension is not required under Rule 4(m) . . . . the court is reluctant to inflict counsel's oversight on his client under the facts of this particular case and in that counsel filed for motion for extension within the deadline set by the court, ” noting “all defendants except defendant Bierline have been served” and “all defendants have actual notice of the lawsuit.” Id.

         Thereafter, plaintiff sought the reissuance of a summons for the defendant Bierline, and summons was reissued on January 30, 2019. (DE 44). According to the online records of the U.S. Postal Service, plaintiff mailed a copy of the newly-issued summons and complaint to defendant Bierline by certified mail on January 30, 2019. (DE 48-2). Defendant Bierline received the package containing the summons and complaint on February 1, 2019. (Id.).

         Defendants Vickie Roberts (“Roberts”), Dan Fowell (“Fowell”), Josephine Stith (“Stith”), and North Carolina Department of State Treasurer (“Treasurer”) filed instant motion to dismiss on February 11, 2019, arguing plaintiff's complaint should be dismissed because 1) Title VII does not provide relief for a claim for discrimination based on disability, 2) plaintiff's claim is time-barred, 3) plaintiff fails to state a claim upon which relief can be granted, and 4) any claim against defendant Fowell should be dismissed with prejudice. (DE 45). Defendant Bierline filed instant motion to dismiss on February 13, 2019. (DE 47). In addition to the same arguments made by the other defendants in their motion to dismiss, defendant Bierline argues plaintiff has failed to obtain proper service of process on defendant Bierline as directed by the court.

         In response in opposition, plaintiff made two filings. First, via counsel, plaintiff filed opposition on March 5, 2019, arguing 1) this case is not one appropriate for dismissal where “there are key genuine issues of material fact, which go to the heart of the ADA” and 2) service has been effective as to defendant Treasurer, for whom defendant Bierline works, thus “[t]here is no substantive argument for lack of service.” (DE 50 at 1-2).

         On the same day, plaintiff also filed affidavit, via counsel, in opposition to defendants' motion to dismiss, attaching 1) notice of self representation, 2) letter from Sarah H. Hodges, MD, concerning plaintiff's hearing loss, and 3) letter from defendant Treasury stating in part the department separated plaintiff from employment effective June 20, 2016.

         On March 19, 2019, defendants filed unified reply in response to plaintiff's opposition to defendants' motions to dismiss as well as instant motion to strike plaintiff's affidavit or, in the alternative, exclude affidavit and exhibits. (DE 53). Plaintiff filed no response to defendants' motion to strike.

         STATEMENT ...


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