United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge.
MATTER is before the Court on Defendants' Motion to
Dismiss for Lack of Jurisdiction (Doc. No. 3) and Motion to
Dismiss for Failure to State a Claim (Doc. No. 5). Plaintiff
filed responses in opposition to both motions (Docs. Nos. 10,
11), to which Defendants replied (Docs. Nos. 19, 20), and the
motions are now ripe for review.
to her pro se complaint, Plaintiff is a full-time employee
with GM Financial in Huntersville, North Carolina, where she
has worked since August 17, 1999. (Doc. No. 1, p. 7). On July
20, 2018, Plaintiff filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”),
claiming that because of her disability, Defendant GM
Financial “continually refused to properly
accommodate” her and “subject[ed] [her] to
retaliatory treatment and derogatory comments relating to
[her] disability.” (Doc. No. 1-1, p. 1). Moreover, she
alleges “GM Financial is subjecting [her] to a transfer
without warning or explanation, heightened scrutiny, and
refuses to assist [her] when [she] ask [sic] for help.”
Id. In her Statement of Discrimination, Plaintiff
stated in entirety: “I believe I have been
discriminated and retaliated against because of my disability
in violation of the Americans with Disability Act.”
21, 2019, the EEOC issued a Right to Sue letter to Plaintiff,
which noted the EEOC closed its file because it was
“unable to conclude that the information obtained
establishe[d] violations of the statutes.” Id.
at 2. Shortly thereafter, on August 22, 2019, Plaintiff filed
the instant case against Defendants Kenya Todd
(“Todd”), Michael Allman (“Allman”),
Cynthia Turner (“Turner”), Catrina Jett-Cameron
(“Jett-Cameron”), Shawndra Thomas
(“Thomas”), unnamed GM Financial Leave of Absence
Administrators (“Unnamed Defendants”)
(collectively, “Individual Defendants”) and GM
Financial (“GM Financial”). (Doc. No. 1, p. 2).
Plaintiff alleges violations of Title VII of the Civil Rights
Act, the Americans with Disabilities Act, the Family and
Medical Leave Act, and the Thirteenth Amendment to the United
States Constitution, in addition to allegations of
retaliation, harassment, and a hostile work environment.
Id. at 3.
filed their motions to dismiss based on Federal Rules of
Civil Procedure 12(b)(4) and 12(b)(5), and consequently
12(b)(2), as well as Rule 12(b)(6). (Docs. Nos. 3, 5). The
Court issued Plaintiff a Roseboro notice in which it
informed Plaintiff of her rights and responsibilities in
responding to the motions. (Doc. No. 9).
Standard of Review
considering a motion to dismiss involving pro se
parties, the court construes the pleadings liberally to
ensure that valid claims do not fail merely for lack of legal
specificity.” Brown v. Charlotte Rentals LLC,
No. 3:15-cv-0043-FDW-DCK, 2015 WL 4557368, at *2 (W.D. N.C.
July 28, 2015) (citing Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978)). At the same time, however, the
Court should not “assume the role of advocate for the
pro se plaintiff.” Gordon, 574 F.2d at 1151
Process, Service of Process, and Personal
Rules of Civil Procedure 12(b)(4) and 12(b)(5) provide for
dismissal of a case when a litigant does not adequately abide
by the rules regarding process and service of process.
See Fed.R.Civ.P. 12(b)(4)-(5); see also
Brown, 2015 WL 4557368, at *2. Process pertains to the
sufficiency of the forms, whereas service of process relates
to the delivery of the pleadings on a party. See
Brown, 2015 WL 4557368 at *2. “It is important to
note that proceeding pro se ordinarily will not
excuse failure to properly accomplish service or a failure to
understand the rules.” Id. at *3; see also
McNeil v. United States, 508 U.S. 106, 113 (1993)
(“[W]e have never suggested that procedural rules in
ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel. As we
have noted before, ‘in the long run, experience teaches
that strict adherence to the procedural requirements . . . is
the best guarantee of evenhanded administration of the
law.'”) (footnote omitted) (quoting Mohasco
Corp. v. Silver, 447 U.S. 807, 826 (1980)). The Fourth
Circuit has likewise made clear that “[a]ctual notice
does not equate to sufficient service of process, even under
the liberal construction of the rules applicable to a pro
se plaintiff.” Scott v. Md. State Dep't of
Labor, 673 Fed.Appx. 299, 305 (4th Cir. 2016) (per
curiam). In other words, “[a]lthough courts should
liberally construe the requirements of the Federal Rules of
Civil Procedure if a defendant has actual notice of a suit
against it, ‘plain requirements for the means of
effecting service of process may not be ignored.'”
Jones v. Se. Reg'l Med. Ctr., No. 7:18-cv-28-D,
2019 WL 97036, at *3 (E.D. N.C. Jan. 2, 2019) (quoting
Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733
F.2d 1087, 1089 (4th Cir. 1984)). The Plaintiff has the
burden of proving that process has been executed in
accordance with Rule 4 of the Federal Rules of Civil
Procedure. Sweeting v. Wells Fargo Bank, No.
3:17-cv-00309-FDW, 2017 WL 3923978, at *3 (W.D. N.C. Sept. 7,
well-settled law that without valid process or service of
process, the Court has no jurisdiction over a defendant.
See, e.g., Armco, 733 F.2d at
1089. Without personal jurisdiction over the defendants, the
case must be dismissed. See Fed.R.Civ.P. 12(b)(2).
Failure to State a Claim
Rule of Civil Procedure 12(b)(6) likewise provides for
dismissal when the pleading party fails to “state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6) tests the legal “sufficiency of a
complaint” but “does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992);
accord E. Shore Mkts, Inc. v. J.D. Assocs. Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000). A
complaint attacked by a Rule 12(b)(6) motion to dismiss will
survive if it contains “enough facts to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Robinson v. American Honda Motor Co., Inc.,
551 F.3d 218, 222 (4th Cir. 2009). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
The Supreme Court has also opined that
Federal Rule of Civil Procedure 8(a)(2) requires only
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Specific facts are
not necessary; the statement need only “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” In addition, when ruling
on a defendant's motion to dismiss, a judge must accept
as true all of the factual allegations contained in the
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(alteration in original) (internal citations omitted)
(quoting Twombly, 550 U.S. at 555-56).
Motion to Dismiss-Lack of Personal Jurisdiction
first motion to dismiss is based on lack of personal
jurisdiction. (Doc. No. 3). Defendants raise three arguments
in this motion: first, Plaintiff failed to include a copy of
the complaint with the summons; second, the summons for GM
Financial was not directed to an officer, director, or other
authorized agent of the corporation; and third, the summonses
were mailed to an office where none of the individual
defendants worked. Id. Each argument is analyzed
Failure to Include Copy of the Complaint with the
first argument in favor of its motion to dismiss is that
Plaintiff failed to include a copy of the complaint with the
summons. (Doc. No. 4, p. 4). Plaintiff admits “that a
copy of the complaint was not sent with the summon [sic] but,
when [she] submitted [her] complaints to the courts [sic], it
was attached, and all information was available in
Pacer.” (Doc. No. 11, p. 2).
Rule of Civil Procedure 4(c)(1) states in its entirety that
“A summons must be served with a copy of the
complaint. The plaintiff is responsible for having the
summons and complaint served within the time allowed by Rule
4(m) and must furnish the necessary copies to the person who
makes service.” Fed.R.Civ.P. 4(c)(1) (emphasis added).
“It is clear . . . that even though a copy of the
complaint is on file at the clerk's office, service of a
summons without a copy of the complaint is not effective
service.” 4A. Fed. Prac. & Proc. Civ. § 1093
courts have determined the basic process requirements of Rule
4 must be closely followed. In Diede v. UNC
Healthcare, No. 5:16-cv-00788-BR, 2018 WL 3448219 (E.D.
N.C. July 17, 2018), the Eastern District of North Carolina
concluded that dismissal was warranted when the pro
se plaintiff failed to serve a defendant with both the
summons and a copy of the complaint. Diede, 2018 WL
3448219, at *3 (“Because plaintiff has failed to show
compliance with the requirements of Rule 4, dismissal is
warranted for plaintiff's failure to effect
service.”). The Eastern District similarly dismissed a
complaint where, although the plaintiff believed she served
sufficient process, the Defendant never “receive[d] the
summons or a complete copy of [the plaintiff's]
complaint.” Jones, 2019 WL 97036, at *1.
Relying in part on Patterson v. Brown, No.
3:06-cv-476, 2008 WL 219965, at *9-11 (W.D. N.C. Jan. 24,
2008), rev'd in part sub nom. Patterson v.
Whitlock, 392 Fed.Appx. 185, 191-92 (4th Cir. 2010) (per
curiam) (reversing because Defendants failed to timely raise
the defense of insufficient process and thus waived any
defense as to that point), the Jones court properly
determined that the pro se plaintiff's failure
to include the summons and a complete copy of the complaint
constituted insufficient process. Jones, 2019 WL
97036, at *3-4. Even in light of the reduced standards
afforded pro se litigants, the “mistake does
not excuse that litigant from the Federal Rules of Civil
Procedure.” Id. at 4.
clear Plaintiff has failed to meet her burden proving she
complied with the requirements of serving sufficient process
to Defendants, even in light of the liberal construction
afforded pro se litigants. According to the
Declaration of Lora Stanford, a Senior Paralegal for GM
Financial who received the package containing the summonses,
no copies of the complaint were included with the summonses.
See (Doc. No. 4-1, p. 1, ¶ 5). Moreover,
Plaintiff concedes that she failed to serve sufficient
process on Defendants, instead stating “that a copy of
the complaint was not sent with the summon [sic] but, when
[she] submitted [her] complaints to the courts [sic], it was
attached, and all information was available in Pacer.”
(Doc. No. 11, p. 2). The requirement to serve both the
summons and a complete copy of the complaint is a clear
requirement of Rule 4, which cannot be ignored, even with a
liberal construction. See Armco, 733 F.2d at 1089.
Thus, the Court finds that process was insufficient. To the