Argueta v. Fred Smith Co.

JESUS OSWALDO ARGUETA, Plaintiff, v. FRED SMITH COMPANY, and DEWEY PABINGWIT, Defendants.

NO. 5:19-CV-84-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

November 26, 2019

ORDER

This matter is before the court on defendants' motion to dismiss pursuant to Rules 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. (DE 14). Plaintiff did not respond in opposition to the motion, and the time to do so has expired. The issues raised are ripe for ruling. For the reasons that follow, defendants' motion is granted.

STATEMENT OF THE CASE

Plaintiff, proceeding pro se, commenced this action against defendants on March 6, 2019. Plaintiff alleges that defendants unlawfully discriminated against him on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.. Plaintiff directed the United States Marshals Service ("USMS") to serve both defendants at 6105 Chapel Hill Road, Raleigh, NC 27607. On June 10, 2019, defendants filed the instant motion to dismiss, relying upon plaintiff's EEOC charge and the declaration of Brent Wood ("Wood"). The court granted plaintiff's request for extension of time to respond to defendants' motion, but plaintiff never filed any response.

STATEMENT OF FACTS

The facts alleged in the complaint may be summarized as follows. Plaintiff allegedly was hired by defendant FSC II, LLC d/b/a Fred Smith Company¹ ("FSC II") as a pipe layer. (See Compl. at 3, 5; EEOC Charge (DE 15-1) at 2). Defendant Dewey Pabingwit ("Pabingwit") was a utility superintendent responsible for supervising plaintiff. (Compl. at 2). In or around November 2018, defendant Pabingwit allegedly went behind plaintiff and grabbed his private parts on several occasions. (Id. at 4). When plaintiff complained to defendant Pabingwit, he threatened to call the United States Citizenship and Immigration Services ("USCIS") to send plaintiff back to his place of origin. (Id. at 5). On one occasion, defendant Pabingwit made plaintiff cut concrete with no protection. (Id.). In his complaint, plaintiff alleges race discrimination. (Id. at 3). Plaintiff attached his right to sue letter to his complaint. (Id.; Right to Sue Letter (DE 5-1) at 1). Plaintiff's charge of discrimination does not explicitly raise race discrimination as an issue, but raises claims of sex and national origin discrimination. (EEOC Charge (DE 15-1) at 2).

DISCUSSION

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(2) allows for dismissal of a claim for lack of personal jurisdiction. "When a district court considers a question of personal jurisdiction based on the contents of a complaint and supporting affidavits, the plaintiff has the burden of making a prima facie showing in support of its assertion of jurisdiction." Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014). At this stage, the court "must construe all relevant pleading allegations in the light most favorable to plaintiff, assume credibility, and draw the most favorableinferences for the existence of jurisdiction." Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989); see Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993) ( "[T]he district court must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiff's favor."). "Absent waiver or consent, a failure to obtain proper service on the defendant deprives the court of personal jurisdiction over the defendant." Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998).

"A motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(4) challenges the sufficiency of process, while Rule 12(b)(5) motions challenge the sufficiency of service of process." Richardson v. Roberts, 355 F. Supp. 3d 367, 370 (E.D.N.C. 2019). "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, 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 notconsider "legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

B. Analysis

1. Sufficiency and Service of Process

The Federal Rules of Civil Procedure allow a plaintiff to serve a defendant that is a business association pursuant to the law of the state in which the district court is located. Fed. R. Civ. P. 4(e)(1), (h)(1). In pertinent part, North Carolina law allows process to be served "[b]y mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the officer, director, agent or member of the governing body." N.C. Gen. Stat. § 1A-1, Rule 4(j)(8)(c). Process must be mailed to an officer, director, managing agent, member of the governing body, or an agent authorized by appointment or by law to be served or to accept service of process. Id. § 1A-1, Rule 4(j)(8)(a), (b), (c).

As to defendant FSC II, process was addressed to Fred Smith Company and not to an officer, director, managing agent, member of the governing body, or an agent authorized by appointment or by law to be served. (See Wood Decl. (DE 15-2) ¶ 8; Ex. 1). Moreover, the individuals able to accept process on behalf of defendant FSC II are located at 701 Corporate Center Drive, Suite 101 Raleigh, NC 27607. (See id. ¶¶ 2, 4-5). Plaintiff's process was instead mailed to 6105 Chapel Hill Road, Raleigh, NC 27607, another business facility without a mailbox. (Id. ¶¶ 3, 8; Ex. 1). Therefore, plaintiff failed to provide sufficient process or sufficient service of process as to defendant FSC II.

North Carolina law allows service of a natural person "[b]y mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee." N.C. Gen. Stat. § 1A-1, Rule 4(j)(1)(c). Process must be addressed to defendant's usual place of abode or to an agent authorized to accept process on behalf of defendant. See id. § 1A-1, Rule 4(j)(1)(a), (b), (c); Davis v. Tyson Foods, Inc., No. 3:14-CV-00720-GCM, 2015 WL 4638301, at *2 (W.D.N.C. Aug. 4, 2015).

Plaintiff's process was not addressed to defendant Pabingwit's usual place of abode. (See Wood Decl. (DE 15-2) ¶ 4). Moreover, there is no evidence that process was served to an agent of defendant Pabingwit. (See Wood Decl. (DE 15-2) ¶¶ 9, 10). For these reasons, defendant's motion to dismiss for lack of personal jurisdiction, insufficient process, and insufficient service of process is granted.

2. Title VII

a. Exhaustion

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., requires that a plaintiff exhaust administrative remedies before filing suit in federal court. 42 U.S.C. §§ 2000e-5(b), (f)(1). "Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts." Fort Bend Cty., Texas v. Davis, 139 S. Ct. 1843, 1851 (2019) (abrogating Jones v. Calvert Grp., Ltd., 551 F. 3d 297, 300-01 (4th Cir. 2009)). Accordingly, the issue is properly analyzed under Rule 12(b)(6).

In a lawsuit claiming discrimination under Title VII, the court "may only consider those allegations included in the EEOC charge" in order to determine whether plaintiff has exhausted his remedies. Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013). If the claims "exceed the scope of the EEOC charge and any charges that would naturally have arisenfrom an investigation thereof, [the claims in the civil action] are procedurally barred." Id. at 407-08 (quoting Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005)).

However, the administrative charge "does not strictly limit a . . . suit which may follow; rather, the scope of the civil action is confined only by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination." Chisholm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981); see also Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995) (holding claims barred which "exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof."). "[I]f the factual allegations in the administrative charge are reasonably related to the factual allegations in the formal litigation, the connection between the charge and the claim is sufficient." Chacko, 429 F.3d at 509. "EEOC charges must be construed with utmost liberality since they are made by those unschooled in the technicalities of formal pleading." Alvarado...