Opinion
7:22-CV-223-M-KS
01-22-2024
LAGENIA SIMMONS, Plaintiff, v. BRUNSWICK COUNTY SCHOOLS, STEVE BARGER, and STEPHEN FOSTER, Defendants.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Defendants' motion to dismiss for lack of personal jurisdiction, insufficiency of process, insufficiency of service of process, and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6), the matter having been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) by the Honorable Richard E. Myers II, Chief United States District Judge. Plaintiff responded in opposition to Defendants' motion, and the time for further filings has expired. The matter is therefore ripe for ruling.
BACKGROUND
Plaintiff, proceeding pro se, initiated this action on December 12, 2022, upon filing a motion to proceed in forma pauperis and a proposed complaint. Plaintiff's motion to proceed in forma pauperis was denied, and Plaintiff was given until February 10, 2023, to pay the requisite filing fee. Upon payment of the filing fee, Plaintiff's complaint was filed and, on February 9, 2023, summonses were issued to Plaintiff for service.
Plaintiff seeks to sue Brunswick County Schools and Defendants Steve Barger and Stephen Foster pursuant to Title VII of the Civil Rights Act of 1964. She alleges they terminated her employment and discriminated against her based upon her race. Defendants have moved to dismiss all claims, asserting lack of personal jurisdiction, insufficiency of process, insufficiency of service of process, and failure to state a claim upon which relief can be granted.
DISCUSSION
The Federal Rules of Civil Procedure require a plaintiff to serve a copy of both the summons and the complaint on each defendant. Fed.R.Civ.P. 4(c). Unless extended by the court, service must be effected within ninety days after the complaint is filed. “Absent waiver of service of process or consent, a plaintiff's failure to effect proper service of process deprives the court of personal jurisdiction over a defendant.” Saimplice v. Ocwen Loan Servicing Inc., 368 F.Supp.3d 858, 865 (E.D. N.C. 2019). “Pro se litigants are not exempt from the Federal Rules of Civil Procedure” and, like represented parties, must properly effect service of process or suffer dismissal. Id.
Defendants seek dismissal of Brunswick County Schools pursuant to Rules 12(b)(2), 12(b)(4), and 12(b)(5) and dismissal of Defendants Barger and Foster pursuant to Rules 12(b)(2) and 12(b)(5). “A motion to dismiss under Rule 12(b)(4) challenges the sufficiency or ‘form' of the process itself' - “the contents of the documents served.” Wright v. Tyson Foods, Inc., No. 5:18-CV-27-D, 2018 WL 3232776, at *1 (E.D. N.C. June 30, 2018). A Rule 12(b)(5) motion, on the other hand, objects to a defect in the act of serving or delivering the process. Id. In either instance, where there is a defect in the process or service, dismissal for lack of personal jurisdiction is warranted. Id.
Defendants also move, pursuant to Rule 12(b)(6), to dismiss Plaintiff's claims for failure to state a claim upon which relief can be granted. A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. “[I]t 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). The court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
To withstand a 12(b)(6) motion, a Title VII plaintiff “is not required to plead facts that constitute a prima facie case” of discrimination. Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing Swierkiewicz v. Sorema N.A, 534 U.S. 506, 510-15 (2002)). However, the complaint must allege facts that raise a right to relief above the speculative level. Coleman, 626 F.3d at 190 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Detailed factual allegations are not necessary, but the complaint must give each defendant fair notice of what the claim is and the grounds upon which it rests. Twombly, 550 U.S. at 555. Thus, a plaintiff must allege facts sufficient to support a reasonable inference as to each of the elements of her Title VII claim. Miler v. Carolinas Healthcare Sys., 561 F. App'x. 239, 241 (4th Cir.2014) (quoting Jordan v. Alt. Res. Corp., 458 F.3d 332, 346 (4th Cir. 2006)).
A. Brunswick County Schools
As to Brunswick County Schools, the record reflects that Plaintiff requested and was issued a summons addressed to Brunswick County Schools on February 9, 2023. Defendants contend, however, that no service was accomplished as to Brunswick County Schools or the proper body corporate, the Brunswick County Board of Education. Plaintiff has not filed a proof of service as to this defendant, nor does she dispute the lack of service in her response to Defendants' motion to dismiss. Accordingly, personal jurisdiction has not been obtained over the Brunswick County Board of Education. Dismissal is warranted pursuant to Rules 12(b)(5) and 12(b)(2) for insufficiency of service of process and, consequently, lack of personal jurisdiction.
Under North Carolina law, the Brunswick County Board of Education is the body corporate and entity responsible for defending suits against the local school administrative unit. See N.C. Gen. Stat. § 115C-40.
Given the lack of service, the court need not determine whether Plaintiff's misidentification of the defendant school board constitutes insufficient process requiring dismissal pursuant to Rules 12(b)(4) and 12(b)(2). See Gonzalez v. Wake Cnty. Pub. Sch. Sys., No. 5:20-CV-684-M, 2022 WL 125295, at *3 (E.D. N.C. Jan. 12, 2022) (mistake in defendant's name does not necessarily render process fatally deficient).
Defendants further argue that Plaintiff's Title VII claims should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim. Plaintiff asserts she was wrongfully terminated from her employment based upon race. To state a Title VII race-based wrongful termination claim, Plaintiff must allege facts to support a reasonable inference that (1) Plaintiff was terminated from employment and (2) the termination was because of her race. See McCleary-Evans v. Maryland DOT, 780 F.3d 582, 585 (4th Cir. 2015). Her claim “must be supported by factual enhancement sufficient ‘to permit the court to infer more than the mere possibility of misconduct,' such that the claim is rendered ‘plausible on its face.'” England v. Ahoskie Hous. Auth, No. 2:19-CV-19-M, 2021 WL 865123, at *2 (E.D. N.C. Mar. 8, 2021) (first quoting Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), and then quoting Twombly, 550 U.S. at 570).
In her complaint, Plaintiff states that she was employed with Brunswick County Schools from January 2013 through October 2021, when she was fired for bringing her son to work with COVID. Plaintiff complains that her termination was discriminatory because three white employees had COVID and were not fired. (Compl. [DE #6] at 3-4.) Plaintiff does not state her race or job position in the complaint. Nor does she allege any facts from which the court could make a reasonable inference that she was treated differently because of her race. Plaintiff does not identify the three white employees or include facts to show that they were similarly situated (e.g., that they held similar jobs, that their job performance was similar to Plaintiff's, that their medical condition raised similar concerns, or that Defendants were aware the individuals came to work knowing they had COVID). While Plaintiff's allegations may be consistent with discrimination, they do not alone support a reasonable inference that her termination was motivated by racial bias. See McCleary-Evans, 780 F.3d at 586. Rather, her allegations are “naked assertions” or threadbare recitals supported only by conclusory statements of discrimination. Accordingly, Plaintiff has not articulated facts sufficient to plausibly allege a Title VII race-discrimination claim.
B. Steve Barger and Stephen Foster
Defendants further contend that Plaintiff's claims against Defendants Steve Barger and Stephen Foster should be dismissed for insufficiency of service of process and lack of personal jurisdiction. On May 25, 2023, Plaintiff filed proofs demonstrating that a Brunswick County Deputy Sheriff personally served summonses upon Stephen Foster on May 12, 2023, and on Steve Barger on May 15, 2023. Defendants contend service on Defendants Foster and Barger was untimely because the ninety-day period for service prescribed by Rule 4(m) had elapsed. Defendants further argue that service was deficient because Foster and Barger were only served with the summons. In support of their motion, Defendants have submitted affidavits signed by Barger and Foster declaring that no complaint was served on them. Plaintiff does not dispute the alleged deficiency in service, and her claims against the individual defendants should therefore be dismissed pursuant to Rules 12(b)(5) and 12(b)(2) for insufficiency of service of process and, consequently, lack of personal jurisdiction.
Moreover, there is no legal basis for Title VII liability against Defendants Foster and Barger, individually. As relevant here, Title VII makes it unlawful for an employer to discriminate against an individual based on race. 42 U.S.C. § 2000e-2(a). Supervisors and coworkers cannot be held liable under Title VII. Lewis v. Baltimore City Bd. of Sch. Comm'rs, 187 F.Supp.3d 588, 594 (D. Md. 2018) (citing Lissau v. S. Food Serv., Inc., 159 F.3d 177, 181 (4th Cir. 1998)). Plaintiff's claims against Defendants Foster and Barger must be construed as official capacity claims against the local school board, see I.M. v. Granville Cnty. Sch., No. 5:22-CV-7-FL, 2022 WL 3441835, at *5 (E.D. N.C. Aug. 16, 2022), which are subject to dismissal for the reasons explained above. To the extent Plaintiff intended to sue Defendants Foster and Barger in their individual capacities, the claims should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
C ONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendants' motion to dismiss [DE #17] be GRANTED and Plaintiff's complaint be dismissed in its entirety.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 8, 2024, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. (May 2023).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).