United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
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
OF THE CASE
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
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.
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.
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.
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
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.
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.).
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.
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).
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.
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.