DeVillez v. Dolgen Corp, LLC

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VANESSA DEVILLEZ, Plaintiff, v. DOLGEN CORP, LLC, et al., Defendants.

No. 3:22-cv-00557

United States District Court, M.D. Tennessee, Nashville Division

January 19, 2023

William L. Campbell, Jr. Judge

REPORT AND RECOMMENDATION

ALISTAIRE. NEWBERN, UNITED STATES MAGISTRATE JUDGE

To The Honorable William L. Campbell, Jr., District Judge

This employment discrimination action brought under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C §§ 2000e-2000e-17, and the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634, arises out of pro se Plaintiff Vanessa DeVillez's employment at Dollar General's corporate office in Goodlettsville, Tennessee. (Doc. No. 1.) Defendant Doug Kays has filed a motion to dismiss DeVillez's claims against him (Doc. No. 10) and DeVillez has responded (Doc. No. 13). For the reasons that follow, the Magistrate Judge will recommend that Kays's motion be granted.

I. Factual and Procedural Background^[1]

DeVillez filed this action against Dolgen Corp, LLC (Dollar General) and Kays on July 26, 2022. (Doc. No. 1.) DeVillez alleges that, in January 2020, she started a new job at Dollar General as the Senior Energy and Building Systems Department Manager. (Id.) Kays, the manager of the Design and Store Development Group, which includes the Energy and Building Systems department, was DeVillez's supervisor. (Id.) DeVillez states that, while working for Dollar General, she was “[t]reated less favorably than [and] subjected to hostile [and] abusive treatment by several males” including Kays. (Id. at PageID# 4.) DeVillez complained about the discriminatory behavior to multiple people, including Kays and the human resources department, but no one at Dollar General addressed the behavior or disciplined the individuals in question. (Doc. No. 1.) In January 2021, Dollar General terminated DeVillez's employment. (Id.) DeVillez states that the decision was based on her gender and age and was made in retaliation for her complaints about the discrimination she faced. (Id.) She seeks compensatory damages, punitive damages, and equitable relief. (Id.)

The Court issued summonses for both defendants. (Doc. Nos. 3, 5.) In its order referring the case to the Magistrate Judge, the Court notified DeVillez that she “is responsible for effecting service of process on Defendants in accordance with Federal Rule of Civil Procedure 4” and directed her to the Court's online resources for pro se litigants. (Doc. No. 4, PageID# 26.) The Court warned DeVillez that “[f]ailure to timely complete service of process could result in dismissal of this action.” (Id.)

On August 15, 2022, DeVillez filed what she described as an executed summons for Kays. (Doc. No. 7.) The summons is addressed to Doug Kays, Senior Director Design and Store Development, Dollar General, 100 Mission Ridge, Goodlettsville, Tennessee 37072, and is accompanied by a proof of service affidavit signed by DeVillez on July 27, 2022. (Id.) DeVillez's affidavit states that she “mailed the summons by certified mail/return receipt requested.” (Id. at PageID# 33.) DeVillez included a certified mail receipt showing that, on July 29, 2022, an individual named “Mary Davis” accepted delivery of a mailing addressed to “Doug Kays c/o Dollar General” at the same address that appears on the summons. (Id. at PageID# 34.)

On August 26, 2022, Kays filed a motion to dismiss DeVillez's claims against him. (Doc. No. 10.) Kays argues that DeVillez's claims should be dismissed under Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process because DeVillez failed to serve him in compliance with Federal Rule of Civil Procedure 5. (Doc. No. 10-1.) Kays further argues that DeVillez's claims should be dismissed under Federal Rule of Civil Procedure 12(b)(6) because he cannot be held individually liable under Title VII or the ADEA. (Id.) DeVillez responded, stating that she “has no opposition” to Kays's motion to “dismiss the claims against him in his individual capacity” under Rule 12(b)(6) but that she “assume[s] . . . that Kays will continue to be named in the lawsuit as he was [her] supervisor and failed to address her complaints of discriminatory behavior and engaged in abusive, discriminatory and retaliatory behavior towards her.”^[2] (Doc. No. 13, PageID# 54.) DeVillez has not responded to Kays's arguments regarding service. Kays has not filed an optional reply.

II. Legal Standards

A. Adequacy of Service Under Federal Rule of Civil Procedure 4

“[T]he requirement of proper service of process ‘is not some mindless technicality[,]'” Friedman v. Est. of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991) (quoting Del Raine v. Carlson, 826 F.2d 698, 704 (7th Cir. 1987)), nor is it “meant to be a game or obstacle course for plaintiffs[,]” Ace Am. Ins. Co. v. Meadowlands Dev. Ltd. P'ship, 140 F.Supp.3d 450, 455 (E.D. Pa. 2015). Rather, it goes to the very heart of a court's ability to hear a case. “[W]ithout proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant.” King v. Taylor, 694 F.3d 650, 655 (6th Cir. 2012); see also Mann v. Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (explaining that “[s]ervice is . . . not only a means of ‘notifying a defendant of the commencement of an action against him,' but ‘a ritual that marks the court's assertion of jurisdiction over the lawsuit'” (citation omitted)). Where personal jurisdiction is not properly established, a court cannot exercise its authority consistent with due process of law. See Friedman, 929 F.2d at 1156-57.

Federal Rule of Civil Procedure 4(m) provides that, “[i]f a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m). The Court must extend the time for service upon a showing of good cause, and the Court may exercise its discretion to permit late service even where a plaintiff has not shown good cause. United States v. Oakland Physicians Med. Ctr., LLC, 44 F.4th 565, 568 (6th Cir. 2022) (first citing Fed.R.Civ.P. 4(m); and then citing Henderson v. United States, 517 U.S. 654, 662 (1996)). Otherwise, the language of Rule 4(m) mandates dismissal, either on motion or by the court on its own initiative. Fed.R.Civ.P. 4(m); see also Byrd v. Stone, 94 F.3d 217, 219 & n.3 (6th Cir. 1996).

Federal Rule of Civil Procedure 4(c) requires that “[a] summons must be served with a copy of the complaint . . . within the time allowed by Rule 4(m)” by a “person who is at least 18 years old and not a party” to the action. Fed.R.Civ.P. 4(c)(1)-(2). “The plaintiff is responsible for having the summons and complaint served . . . and must furnish the necessary copies to the person who makes service.” Fed.R.Civ.P. 4(c)(1). Rule 4(1) requires that, “[u]nless service is waived, proof of service must be made to the court” and, “[e]xcept for service by a United States marshal or deputy marshal, proof must be by the server's affidavit.” Fed.R.Civ.P. 4(1)(1).

B. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(5)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(5) challenges “the manner or method of service” of a summons or complaint. Buck Mountain Cmty. Org. v. Tenn. Valley Auth., 629 F.Supp.2d 785, 792 n.5 (M.D. Tenn. 2009). “In deciding a motion to dismiss under Rule 12(b)(5), the court may refer to record evidence in determining the sufficiency of service[,]” including “uncontroverted affidavits ....” Metro. Alloys Corp. v. State Metals Indus., Inc., 416 F.Supp.2d 561, 563 (E.D. Mich. 2006); see also Wanke v. Invasix Inc., No. 3:19-cv-0692, 2020 WL 2542594, at *5 (M.D. Tenn. May 19, 2020) (finding that the Court may consider “record evidence in determining the sufficiency of service” under Rule 12(b)(5)). It is the plaintiff's burden to establish that service was proper. See Sawyer v. Lexington-Fayette Urban Cnty. Gov't, 18 Fed.Appx. 285, 287 (6th Cir. 2001) (citing Byrd, 94 F.3d at 219).

C. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must “construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff.” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). Federal Rule of Civil Procedure 8(a)(2) requires only that a complaint contain “a short and plain statement of the claim[.]” Fed.R.Civ.P. 8(a)(2). However, “[t]he factual allegations in the complaint need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead ‘sufficient factual matter' to render the legal claim plausible, i.e., more than merely possible.” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 556 (2007)). A plaintiff must plead more than “‘labels and conclusions[,]'” “‘a formulaic recitation of the elements of a cause of action[,]'” or “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (third alteration in original) (quoting Twombly, 550 U.S. at 555, 557). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that...