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Allen v. Atlas Boxing and Crating

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

December 2, 2019

ANDREW ALLEN, Plaintiff,
v.
ATLAS BOXING AND CRATING and ALL IN ONE STAFFING, Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This matter is before the court upon defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(4) and (6) (DE 39, 44). The motions have been briefed, and the issues raised are ripe for ruling. For the following reasons, the motions are denied.

         STATEMENT OF THE CASE

         Plaintiff moved for leave to proceed in forma pauperis in this employment discrimination action on November 1, 2018, relying upon a proposed complaint, exhibits, and summons. Following recommendation by magistrate judge to deny the motion for leave to proceed in forma pauperis, plaintiff sought an extension of time to December 13, 2018, to pay the filing fee. On its own initiative, on November 29, 2018, the court consolidated the instant action with No. 5:18-CV-521-FL, and directed plaintiff to pay a single filing fee for the consolidated case by December 13, 2018. Plaintiff paid the filing fee as directed, and, on December 17, 2018, the court directed the clerk to file the complaint, exhibits, and proposed summonses attached to plaintiff's motion for leave to proceed in forma pauperis.

         In his complaint, plaintiff asserts a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against defendants who are asserted to be plaintiff's former employers, based upon wrongful termination due to race. Plaintiff attaches copies of his Equal Employment Opportunity Commission (EEOC) notices of right to sue (hereinafter, “EEOC notice” or “EEOC notices”). Plaintiff seeks a trial by jury.

         Upon initial motions to dismiss by defendants including for insufficient service, the court on April 4, 2019, allowed plaintiff an extension of time in which to serve defendants. After plaintiff failed to file proof of service within that time, the court directed plaintiff to file proof of service, with additional extension to June 28, 2019.

         In the meantime, on June 11, 2019, defendant All in One Staffing (“All in One”) filed the instant motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6). Plaintiff responded in opposition to the motion on June 17, 2019, relying upon a United States Postal Service tracking report.

         Defendant Atlas Box and Crating (“Atlas Box”) filed the instant motion to dismiss on July 3, 2019, for failure to state a claim and for insufficient process, pursuant to Rule 12(b)(4) and (6). In support of the motion, defendant Atlas Box relies upon the following documents attached to its motion to dismiss: 1) a copy of the summons sent to it, 2) plaintiff's request for reconsideration of the EEOC notices, and 3) a response by EEOC to plaintiff's request for reconsideration. Plaintiff responded in opposition to the motion on July 15, 2019.

         STATEMENT OF FACTS

         The facts alleged in the complaint may be summarized as follows. Plaintiff was employed by defendants, who are alleged to be a temporary staffing agency and its client, from December 12, 2017, to March 2, 2018. (Compl. (DE 13) at 3, 9). According to plaintiff:

Sometime in February 2018, Johnny LNU (Hispanic), Manager with [defendant Atlas Boxing] called me into his office for an evaluation stating that I did not know how to use the computer. I explained to Johnny that Derrick (Black), Supervisor with [defendant Atlas Boxing] had not trained me on the use [of] the computer. Johnny said that he would figure out what to do upon his return from vacation. Upon Johnny[']s return from vacation, a week and half or so later, I could hear him, in the [span] of two days, use the word nigger three separate times on the floor; I believe the slur was directed at me. On March 2, 2018, Derrick told me that I did not have to work the following day. On March 3, 2018, Rhonda LNU (White), Staffing Specialist [with defendant All-in-One], called me and said that [defendant Atlas Boxing] did not want me to return to my assignment because I did not know how to use the computer. [Defendant All-in-One] has not assigned [plaintiff] any work at any of its other clients.

(Compl. Ex. (DE 13-3) at 1).[1] The EEOC mailed the EEOC notices on August 3, 2018. Plaintiff alleges that he received the EEOC notices on August 23, 2018.

         COURT'S DISCUSSION

         A. Standard of Review

         “To survive a motion to dismiss, 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right 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 ...


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