Walker v. Dunn

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND FOR INSUFFICIENT PROCESS AND SERVICE OF PROCESS

W.D. Tenn.September 23, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________ Sherman Walker, Plaintiff, v. Case No.: 2:16-cv-02279-STA-tmp J.E. Dunn, Defendant. ______________________________________________________________________ DEFENDANT J.E. DUNN CONSTRUCTION COMPANY’S MOTION TO DISMISS ______________________________________________________________________ Defendant J.E. Dunn Construction Company (“J.E. Dunn”) hereby moves, pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(4)-(6), and LR 7.2, to dismiss Plaintiff Sherman Walker’s (“Walker”) Complaint. Walker failed to properly serve J.E. Dunn because he did not serve a copy of his Complaint with the summons and his Complaint, therefore, should be dismissed pursuant to Fed. R. Civ. P. 12(b)(2), 12(b)(4), and/or 12(b)(5). Additionally, Walker failed to plead sufficient facts to plausibly suggest that he is entitled to relief from J.E. Dunn and, for that reason, his Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). In support of its motion, J.E. Dunn relies upon its contemporaneously filed supporting memorandum, which is incorporated herein by reference, and the Declaration of Sherry Proctor, which is attached to the memorandum as Exhibit A. WHEREFORE, J.E. Dunn respectfully requests that the Court enter an Order dismissing Walker’s Complaint for lack of personal jurisdiction, insufficient process, Case 2:16-cv-02279-STA-tmp Document 14 Filed 09/23/16 Page 1 of 3 PageID 54 2 insufficient service of process, and failure to state a claim upon which relief can be granted. Sincerely, /s/ Matthew G. Gallagher Matthew G. Gallagher (TN Bar No. 27242) Littler Mendelson, P.C. 3725 Champion Hills Drive, Suite 3000 Memphis, TN 38125 Email: mgallagher@littler.com Attorneys for Defendant J.E. Dunn Construction Company Case 2:16-cv-02279-STA-tmp Document 14 Filed 09/23/16 Page 2 of 3 PageID 55 3 CERTIFICATE OF SERVICE The undersigned certifies that on this 23rd day of September, 2016, a true and exact copy of the foregoing document has been filed with the Court through the Court’s Electronic Case Filing System, and served via U.S. Mail upon the following: Sherman Walker 5822 Dutton Place Memphis, TN 38115 /s/ Matthew G. Gallagher Case 2:16-cv-02279-STA-tmp Document 14 Filed 09/23/16 Page 3 of 3 PageID 56 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________ Sherman Walker, Plaintiff, v. Case No.: 2:16-cv-02279-STA-tmp J.E. Dunn, Defendant. ______________________________________________________________________ DEFENDANT J.E. DUNN CONSTRUCTION COMPANY’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS ______________________________________________________________________ Defendant J.E. Dunn Construction Company (“J.E. Dunn”), pursuant to LR 7.2, respectfully submits the following memorandum of law in support of its Motion to Dismiss: I. INTRODUCTION AND FACTUAL BACKGROUND On April 25, 2016, Plaintiff Sherman Walker (“Walker”) filed a court-provided form pro se Complaint alleging that he was discriminated and retaliated against in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) (See Doc. 1). While the Complaint names J.E. Dunn as the sole Defendant, it does not contain any allegation that J.E. Dunn employed Walker, terminated Walker’s employment, or otherwise took any adverse employment action against Walker which could plausibly be the basis for Walker’s claims (See Doc. 1). To the contrary, Walker alleges in his Complaint only that he “was working as a [sic] electrician at a CCA prison” when he was assaulted by a fellow employee and that his employment was terminated for reporting the assault (See Case 2:16-cv-02279-STA-tmp Document 14-1 Filed 09/23/16 Page 1 of 6 PageID 57 2 Doc. 1, at ¶ 10). Notably, the Complaint also does not contain any allegation that Walker reported any alleged misconduct to J.E. Dunn (See Doc. 1). On September 2, 2016, J.E. Dunn was served with a copy of a summons and an Order to Issue and Effect Service of Process in this matter, via hand-delivery, at its Brentwood, Tennessee location (See Declaration of Sherry Proctor1 at ¶ 3). The summons and order, however, were not accompanied by a copy of Walker’s Complaint and, to date, J.E. Dunn has not been served with a copy of Walker’s Complaint (See Declaration of Sherry Proctor at ¶¶ 3-4 and Exhibit A). Inasmuch as Walker did not serve J.E. Dunn with a copy of the Complaint and, in any event, has failed to plead sufficient facts to plausibly suggest, beyond a speculative level, that he is entitled to relief from J.E. Dunn, his claims should be dismissed in their entirety. II. LAW AND ANALYSIS A. The Complaint Should Be Dismissed For Insufficient Process and/or Insufficient Service of Process and Lack of Personal Jurisdiction Because Walker Did Not Serve A Copy of the Complaint with the Summons The Federal Rules of Civil Procedure specifically provide that “[a] summons must be served with a copy of the complaint.” Fed. R. Civ. P. 4(c)(1). Proper service is a condition precedent to a district court’s exercise of personal jurisdiction over a defendant, and where a Defendant has not been served properly under Fed. R. Civ. P. 4, the complaint must be dismissed. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (holding that the court cannot exercise personal jurisdiction over a defendant that has not been served properly); see also Watkins v. Kajima Int’l 1 The Declaration of Sherry Proctor is attached as Exhibit A. Case 2:16-cv-02279-STA-tmp Document 14-1 Filed 09/23/16 Page 2 of 6 PageID 58 3 Corp., 2011 U.S. Dist. LEXIS 22203, at *10 (M.D. Tenn. Mar. 4, 2011) (absent proper service, the district court does not acquire personal jurisdiction over the defendant, and the complaint must be dismissed). A plaintiff has the burden of proving proper service of process. See Byrd v. Stone, 94 F.3d 217, 219 (6th Cir.1996); McGath v. Hamilton Local Sch. Dist., 848 F.Supp.2d 831, 836 (S.D. Ohio 2012). While Walker has served a summons in this case, he has not served J.E. Dunn with a copy of the complaint as required by Fed. R. Civ. P. 4(c)(1) (See Declaration of Sherry Proctor at ¶¶ 3-4 and Exhibit A). Accordingly, this Court lacks personal jurisdiction over J.E. Dunn, and the complaint should be dismissed in its entirety pursuant to Fed. R. Civ. P. 12(b)(2), (4), and (5) for lack of personal jurisdiction, insufficient process, and/or insufficient service of process.2 B. The Complaint Should Be Dismissed For Failure To State A Claim Against J.E. Dunn Upon Which Relief Can Be Granted A motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure “tests whether a cognizable claim has been pleaded in the complaint.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (stating that the purpose of Rule 12(b)(6) is “to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the Complaint is true”). 2 Generally, a Rule 12(b)(4) motion challenges the sufficiency of the content of the summons, while a Rule 12(b)(5) motion challenges the method of service attempted by the plaintiff. See Moore’s Federal Practice: Civil § 12.33. Inasmuch as it is unclear which of these rules applies to the failure to serve a Complaint with the summons, J.E. Dunn moves for dismissal under both 12(b)(4) and 12(b)(5). See Adams v. Allied Signal Gen. Aviation Avionics, 74 F.3d 882, 884 n.2 (8th Cir. 1996) (noting that due to confusion between rules, it is appropriate to present service deficiencies under both Rules 12(b)(4) and 12(b)(5)). Case 2:16-cv-02279-STA-tmp Document 14-1 Filed 09/23/16 Page 3 of 6 PageID 59 4 Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This baseline standard has been interpreted by the Supreme Court as requiring “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Under this standard, “[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 (emphasis added). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. As set forth above, Walker has not alleged in his Complaint that J.E. Dunn employed him, that J.E. Dunn terminated his employment, or that J.E. Dunn otherwise took any adverse employment action against him (See Doc. 1).3 Additionally, while Walker claims he was terminated for reporting workplace violence (See Doc. 1, at ¶ 10), he has not alleged in his Complaint that he reported any workplace violence or other alleged misconduct to J.E. Dunn (See Doc. 1). Accordingly, Walker has failed to state a claim against J.E. Dunn upon which relief may be granted. Therefore, his Complaint should be dismissed in its entirety pursuant to Fed. R. Civ. P. 12(b)(6). IV. CONCLUSION For all the reasons set forth above, J.E. Dunn respectfully requests that the Court enter an Order dismissing Walker’s Complaint in its entirety for failure to serve J.E. 3 In fact, Walker was not employed by J.E. Dunn. Case 2:16-cv-02279-STA-tmp Document 14-1 Filed 09/23/16 Page 4 of 6 PageID 60 5 Dunn with a copy of the Complaint and failure to state a claim against J.E. Dunn upon which relief can be granted. Respectfully submitted, /s/ Matthew G. Gallagher Matthew G. Gallagher (TN Bar No. 27242) Littler Mendelson, P.C. 3725 Champion Hills Drive, Suite 3000 Memphis, TN 38125 Email: mgallagher@littler.com Attorneys for Defendant J.E. Dunn Construction Company Case 2:16-cv-02279-STA-tmp Document 14-1 Filed 09/23/16 Page 5 of 6 PageID 61 6 CERTIFICATE OF SERVICE The undersigned certifies that a true and exact copy of the foregoing document has been filed with the Court through the Court’s Electronic Case Filing System, and served via U.S. Mail, this 23rd day of September, 2016, to the following: Sherman Walker 5822 Dutton Place Memphis, TN 38115 /s/ Matthew G. Gallagher Case 2:16-cv-02279-STA-tmp Document 14-1 Filed 09/23/16 Page 6 of 6 PageID 62 Case 2:16-cv-02279-STA-tmp Document 14-2 Filed 09/23/16 Page 1 of 11 PageID 63 Case 2:16-cv-02279-STA-tmp Document 14-2 Filed 09/23/16 Page 2 of 11 PageID 64 Case 2:16-cv-02279-STA-tmp Document 14-2 Filed 09/23/16 Page 3 of 11 PageID 65 Case 2:16-cv-02279-STA-tmp Document 14-2 Filed 09/23/16 Page 4 of 11 PageID 66 Case 2:16-cv-02279-STA-tmp Document 14-2 Filed 09/23/16 Page 5 of 11 PageID 67 Case 2:16-cv-02279-STA-tmp Document 14-2 Filed 09/23/16 Page 6 of 11 PageID 68 Case 2:16-cv-02279-STA-tmp Document 14-2 Filed 09/23/16 Page 7 of 11 PageID 69 Case 2:16-cv-02279-STA-tmp Document 14-2 Filed 09/23/16 Page 8 of 11 PageID 70 Case 2:16-cv-02279-STA-tmp Document 14-2 Filed 09/23/16 Page 9 of 11 PageID 71 Case 2:16-cv-02279-STA-tmp Document 14-2 Filed 09/23/16 Page 10 of 11 PageID 72 Case 2:16-cv-02279-STA-tmp Document 14-2 Filed 09/23/16 Page 11 of 11 PageID 73