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Marks v. Cambria Hotel and Suites

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

January 2, 2020




         This matter comes before the court on defendant Cambria Hotel and Suites's (“Hotel”) motion to dismiss for insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5), and failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 18). The issues raised have been fully briefed, and in this posture are ripe for ruling. For the reasons that follow, defendant's motion is granted.


         Plaintiff, proceeding pro se, initiated this action by filing a motion to proceed in forma pauperis (“IFP”) on March 13, 2019. While plaintiff's IFP application was pending before the court, plaintiff paid the filing fee for her case, and her proposed complaint was filed by the clerk of court on April 8, 2019. Plaintiff's complaint alleges that defendant Hotel unlawfully discriminated against her based on race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

         Service of process in this case was due July 7, 2019. Following a failure to serve defendants Hotel and Kayla Blair (“Blair”), the court ordered plaintiff to perfect service on defendants not later than October 9, 2019. On October 24, 2019, finding no service had been made, the court dismissed the action without prejudice for failure to timely serve process on defendants. Later that same day, the clerk of court entered into the record proof of service as to defendant Hotel. Finding service timely perfected, the court vacated its judgment as to defendant Hotel. In the meantime, defendant Hotel filed the instant motion to dismiss.


         The facts alleged in the complaint may be summarized as follows. Plaintiff is currently employed by defendant Hotel. (Compl. at 3).[2] On October 10, 2018, at 9:00 p.m., plaintiff submitted a leave request to Blair, defendant Hotel's assistant manager. (Id. at 5). Plaintiff repeatedly checked Blair's inbox to determine if Blair had processed her leave request, but the request was still in her inbox. (Id.).

         On October 24, 2018, Blair asked plaintiff for a copy of a customer record that plaintiff had made the previous night. (Id.). Plaintiff responded that the customer record was in Blair's inbox. (Id.). Blair then told plaintiff she would ask Chrissy, the morning shift guest service representative, to check Blair's inbox again. (Id.). Later that day, plaintiff checked Blair's inbox for the customer record, and observed that her leave request had been removed. (Id.). Plaintiff called Chrissy to ask if she had removed her leave request, called Blair to inform her that she believed Chrissy had removed her leave request, and sent Chrissy a text, stating in part “ . . . I didn't nor do I ever need you to go to anyone for me, I wrote my request off because I'm my own person 24 hours a day, just in case that invasion of my privacy and I don't like it.” (Id. at 5-6).

         The next day, Blair called plaintiff into her office and told plaintiff that she was receiving a disciplinary write up for harassment. (Id. at 6). Plaintiff asked for what, and Blair explained it was for the communications plaintiff sent to Chrissy regarding plaintiff's leave request, since Blair was the one that removed the leave request and gave it to defendant Hotel's general manager. (Id.). During the meeting, Blair also informed plaintiff that she was hiring a full-time desk clerk and plaintiff was only needed for two days next week. (Id.). Plaintiff left Blair's office and never signed the disciplinary letter. (Id.).


         A. Standard of Review

         A motion under Rule 12(b)(5) challenges the sufficiency of service of process. See Fed.R.Civ.P. 12(b)(5). “When the process gives the defendant actual notice of the pendency of the action, the rules ... are entitled to a liberal construction” and “every technical violation of the rule or failure of strict compliance may not invalidate the service of process.” Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). Nevertheless, “the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored.” Id. The plaintiff bears the burden of establishing that process properly has been served. Dalenko v. Stephens, 917 F.Supp.2d 535, 542 (E.D. N.C. 2013); see also Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993) (holding the plaintiff must prove service of process if challenged).

         “To survive a motion to dismiss” under Rule 12(b)(6), “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, 663 (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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