United States District Court, E.D. North Carolina, Western Division
C DEVER III UNITED STATES DISTRICT JUDGE
January 8, 2019, the court denied Wen Chiann Yen's
("Yeh" or "plaintiff') motion for entry of
default, motion for service of pleadings by paper rather than
electronically, and motion for reconsideration, and granted
defendants' motion to dismiss without prejudice Yeh's
first amended complaint [D.E. 37]. The court explicitly
informed Yeh that, if she wished to continue with this
action, she must file a second amended complaint and ensure
that North Carolina State University ("NC State" or
"defendant") is served properly under the Federal
Rules of Civil Procedure. See Id. at 2.
January 28, 2019, Yeh, proceeding pro se, filed a second
amended complaint against NC State, alleging claims for
discriminatory discharge, disparate treatment, retaliation,
and "hostile workplace harassment" [D.E. 38]. On
February 20, 2019, NC State moved to dismiss for lack of
subject-matter jurisdiction, lack of personal jurisdiction,
improper service of process, and failure to state a claim
[D.E. 43] and filed a memorandum in support [D.E. 44]. The
court notified Yeh about the motion, the consequences of
failure to respond, and the response deadline [D.E. 45].
See Roseboro v. Garrison. 528 F.2d 309, 310 (4th
Cir. 1975) (per curiam). On April 29, 2019, Yeh responded in
opposition [D.E. 54]. NC State did not reply. As explained
below, the court grants NC State's motion to dismiss for
lack of personal jurisdiction and dismisses Yen's second
amended complaint without prejudice.
an Asian-American woman who worked at NC State's Center
for Urban Affairs and Community Services ("CUACS")
from November 6, 2017, until November 21, 2017. See 2d Am
Compl. [D.E. 38] 8-9. When Yeh applied for the position at
CUACS, Yeh did not include her prior, two-month employment
with the North Carolina Department of Public Instruction
("DPF') on her resume, because Yeh believed that DPI
would give her "a very bad reference." Id.
at 8. Yeh alleges that she consulted two lawyers concerning
whether she could lawfully omit her employment with DPI, and
both lawyers advised her that she could do so. See
Id. at 8-9, 16. NC State's Human Resources
department conducted a background check before NC State hired
Yeh. See Id. at 9.
November 6, 2017, Yeh began work at CUACS. See Id.
Yeh alleges that, on her first day, she had a conversation
with a colleague, Tilson Rice ("Rice"), concerning
his pay at CUACS that left her feeling "threatened and
harassed." Id. Yeh alleges that Rice and other
colleagues refused to share work assignments with her to oust
her from her job at CUACS. See Id. at 9-10. Yeh also
began to experience personality conflicts with Kevin Stover
("Stover"), the individual in charge of databases
on which Yeh worked. See Id. at 11. Specifically,
Yeh's supervisor, Randy Craven ("Craven"),
asked Yeh to analyze potential database issues, but when Yeh
showed her notes to Stover to get his feedback, she alleges
that Stover became "very angry." Id. Yeh
deleted her notes because she was a "newcomer" and
did not "want to make enemies" at work.
Id. Yeh alleges that Stover, who she thinks hates
her, retaliated against her after she showed him her notes.
See Id. In addition, when Yeh asked Chad Simon
("Simon"), the network administrator, to set up her
computer, Simon yelled at her and told her to come back later
because he was busy. See Id. at 10-11. These
conflicts led Yeh to believe that various individuals,
including Stover, Simon, and Rice, sought "to get rid of
[Yeh] because [she is an] Asian woman." M. at 12, 16-17.
the weekend of November 18 and 19, 2017, NC State teachers
"were unable to log into the official test site"
and blamed Craven and Yevonne Brannon ("Brannon"),
the CUACS Director. Id. at 5, 12. Yeh alleges that
Craven and Brannon-neither of whom are IT
professionals-blamed Yeh for the problem, without any
evidence that Yeh caused the issue, because Yeh was a new
employee and an Asian woman. See Id. at 12-13.
Further, Yeh alleges that Craven and Brannon refused to blame
white employees. See Id. at 13. According to Yeh,
Kenneth Barbour ("Barbour"), a white male,
ultimately took responsibility for causing the network error.
See Id. at 15. Yeh alleges that she did not
learn of the error until November 20, 2017, and that she did
not "even... know where the official test site is."
Id. at 12.
November 21, 2017, Dan O'Brien ("O'Brien")
and Brannon informed Yeh that they had decided to terminate
her employment at NC State because Yeh had omitted her former
employment at DPI on her resume and state application, which
Yeh alleges they called "false leadership and false
statements." Id. at 13-14. Yeh alleges that
O'Brien and Brannon erroneously believed that Yeh had
worked there for two years, rather than two months. See
Id. at 14. Yeh also asserted that O'Brien and
Brannon had themselves put misleading information on their
resumes and public social media profiles, such as Linkedin
accounts. See Id. Yeh argues that they did not fire
Barbour (a white male), despite Us admission that Us coding
errors caused the network issue. See Id. at 15. Yeh
also asserts that various NC State employees omitted past
employment from and falsified entries in their resumes,
applications, and online social media profiles but remained
employed at NC State because they are white. See Id.
at 16-17. Yeh alleges that these omissions and falsifications
have misled "millions of employers" and that NC
State has engaged in discrimination on the basis of race and
national origin against her by discharging her from her
position at NC State. See Id. at 9, 16-17. On May
17, 2018, Yen filed a charge of discrimination with the Equal
Employment Opportunity Commission, alleging that her
discharge of November 21, 2017, constituted discrimination on
the basis of race and national origin. See Id. at
17: Ex. A [D.E. 44-1], "Absent waiver or consent, a
failure to obtain proper service on the defendant deprives
the court of personal jurisdiction over the defendant."
Koehler v. Dodwell. 152 F.3d 304, 306 (4th Cir.
1998). Yeh, as the plaintiff, bears the burden of proving
proper service. See Johnson v. BAC Home Loans Servicing.
LP. 867 F.Supp.2d 766, 773 (E.D. N.C. 2011);
O'Meara v. Waters. 464 F.Supp.2d 474, 476 (D.
Md. 2006). Rule 4 of the Federal Rules of Civil Procedure
details the means of properly effecting service of a summons
and complaint Under Rule 4, a non-party must serve the
summons. See Fed.R.Civ.P. 4(c)(2). The plaintiff may not
serve the defendant. See id.; Constien v. United
States. 628 F.3d 1207, l2l3-14(10thCir.20l0');
Dougherty v. Snyder. No. 1:CV-10-1071, 2010 WL
3168323, at *1 (M.D. Pa. July 29, 2010) (unpublished);
Price v. Hous. Auth. of New Orleans. No. 09-4257,
2010 WL 2836103, at *1 (E.D. La. July 16, 2010)
(unpublished). This principle in Rule 4(c)(2) applies
"[e]ven when service is effected by use of the mail[.]
[O]nly a nonparty can place the summons and complaint in the
mail.... [T]he rule contains no mailing exception to the
nonparty requirement for service." Constien.
628 F.3d at 1213-14; see Kelley v. Enviva. LP. No.
7:13-CV-197-BO, 2014 WL 1323186, at*l (E.D. N.C. Apr. 1,
2014) (unpublished); Pitts v. O'Geary. No.
5:13-CV-116-D, 2014 WL 229350, at *4 (E.D. N.C. Jan. 21,
2014) (unpublished); Reale v. Wate Cty Human Sptvr.,
No. 5:ll-CV-682-D, 2013 WL 2635181, at *2 (E.D. N.C. June 12,
2013) (unpublished); Knotts v. Univ. of N.C. at
Charlotte. No. 3:08-CV-478, 2011 WL 650493, at *8-9
(W.D. N.C. Feb. 10, 2011) (unpublished).
personally mailed the summons and a copy of the complaint to
NC State, which is the sole defendant named in Yeh's
second amended complaint, by certified mail. See [D.E. 40].
Yeh did not serve NC State through a nonparty. Thus, NC State
has not been properly served. Even pro se plaintiffs must
comply with the Federal Rules of Civil Procedure.
See, e.g., Baldwin Cty. Welcome Ctr. v.
Brown. 466 U.S. 147, 149-52 (1984) (per curiam);
Sys. Signs Supplies v. U.S. Dep't of Justice.
903 F.2d 1011, 1013-14 (5th Cir. 1990) (per curiam). Although
the court recognizes that it enjoys some discretion in
enforcing Rule 4 when there is actual notice to the
defendant, "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).
4(m) permits the court to extend the 120-day time for service
when a plaintiff shows good cause for the failure to serve a
defendant See, e.g.. Hansan v. Fairfax Cty. Sch.
Bd.. 405 Fed.Appx. 793, 793-94 (4th Cir. 2010) (per
curiam) (unpublished); Giacomo-Tano v. Levine. 199
F.3d 1327, at *l-2 (4th Cir. 1999) (per curiam) (unpublished
table decision); Scruggs v. Spartanburg Reg'l Med.
Ctr.. 198 F.3d 237, at *l-3 (4th Cir. 1999) (per curiam)
(unpublished table decision); Mendez v. Elliot 45
F.3d 75.78-79 f4th Cir. 1995). Additionally, the court has
discretion to extend the 120-day period if a plaintiff can
show excusable neglect See Fed.R.Civ.P. 6(b)(1)(B);
Henderson v. United States. 517 U.S. 654, 662-63
(1996). Yeh has not shown good cause or excusable neglect,
and her pro se status alone is insufficient See
Hansan, 405 Fed.Appx. at 794; Deo v. N.C.
Dep't of Envtl. & Nat Res.. No. 5:13-CV-323-D,
2014 WL 3738448, at *2 (E.D. N.C. July 29, 2014)
(unpublished); Pitts, 2014 WL 229350, at *4-5; cf McNeil
v. United States. 508 U.S. 106, 113 (1993). Moreover,
the court's order of January 8, 2019, explicitly warned
Yeh to ensure that she properly served NC State in accordance
with the Federal Rules of Civil Procedure. See [D.E. 37] 2.
Thus, the court declines to extend the 120-day time for
service of process. Accordingly, the court grants NC
State's motion to dismiss for failure of service of
process and lack of personal jurisdiction.
the court GRANTS NC State's motion to dismiss [D.E. 43]
and DISMISSES without prejudice Yeh's second amended
complaint [D.E. 38]. The court DENIES as moot Yen's
motion to compel [D.E. 52].