United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
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.
OF THE CASE
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.
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.
facts alleged in the complaint may be summarized as follows.
Plaintiff is currently employed by defendant Hotel. (Compl.
at 3). 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.).
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
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.).
Standard of Review
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).
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 ...