Freeman v. HKA Enters. of S.C.

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CORY FREEMAN, Plaintiff, v. HKA ENTERPRISES OF SOUTH CAROLINA, LLC; JOHN WOOD GROUP, PLC; and AMEC FOSTER WHEELER KAMTECH, INC., Defendants.

No. 4:21-CV-77-FL

United States District Court, E.D. North Carolina, Eastern Division

August 26, 2022

ORDER

LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

This matter is before the court on motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(4) 12(b)(5), and 12(b)(6) by defendant HKA Enterprises of South Carolina, LLC (“HKA Enterprises”). (DE 28). The issues raised have been briefed fully. For the following reasons, defendant HKA Enterprises's motion is granted in part and denied in part.

STATEMENT OF THE CASE

Plaintiff commenced this action April 1, 2021, in the Superior Court of Edgecombe County, North Carolina (the “state court”), alleging defamation, wrongful termination, and fraud in violation of state law by former defendant Wood Environment and Infrastructure Solutions, Inc., previously alleged to be his employer.^[1] Plaintiff later filed amended complaint in state court, alleging the same but targeting also defendants John Wood Group PLC (“John Wood Group”), another entity previously alleged to have employed plaintiff, and HKA Enterprises, plaintiff's now-alleged employer. Defendant John Wood Group and then-defendant Wood Environment and Infrastructure Solutions Inc., removed the case to this court May 20, 2021, with the consent of defendant HKA Enterprises. Thereafter, through second amended and operative complaint,^[2]plaintiff added Amec Foster Wheeler Kamtech, Inc. (“Amec”) as a defendant, alleging that defendant Amec employed an individual who defrauded him.

Defendants John Wood Group and Amec filed answer. Defendant HKA Enterprises moved to dismiss plaintiff's complaint for lack of personal jurisdiction, insufficient process insufficient service of process, and failure to state a claim. Defendant HKA Enterprises places reliance in support of its motion on declaration of its employee Nicholas Nuzzi (“Nuzzi”). Plaintiff's opposition makes reference to a screenshot from the North Carolina Secretary of State's website and an executed state summons pertaining to defendant HKA Enterprises.

STATEMENT OF FACTS

The facts alleged in plaintiff's complaint may be summarized as follows.^[3] In 2016, plaintiff was hired by defendant HKA Enterprises, a South Carolina corporation “specializing in contingent labor staffing, payroll services, direct hire, and onsite services.” (Compl. (DE 24) ¶¶ 78). Plaintiff served as a foreman, working at defendant HKA Enterprises's project in Battleboro, North Carolina. Plaintiff was approached about a project in Virginia for an entity called “Dominion Power” (the “Dominion Power project”). (Id. ¶ 16). He was told the “project required employees to have an Occupational Safety Health Administration” (“OSHA”) “30-Hour certification” (hereinafter, “OSHA certification” or “certification”)^[4] issued within the previous four years. (Id.). Plaintiff did not have an OSHA certification and was without knowledge about how one could be obtained.

Later, in October 2020, plaintiff was approached by a superintendent for defendant Amec,^[5]named Brandis Kackos (“Kackos”). She asked if he had an OSHA certification and when he responded no, informed him that she would sign him up for such a certification. In December 2020, plaintiff received his certification from an employee of defendant John Wood Group. The certification “indicated that it was ‘presented by' . . . Kackos,” an “OSHA authorized trainer.” (Id. ¶ 20; see also OSHA Certificate (DE 24-1) at 1). Plaintiff presented the OSHA certification to defendant John Wood Group's “[s]afety representatives at orientation for the Dominion Power project” on January 4, 2021. Four days later, plaintiff was suspended “pending an investigation into fraudulent” OSHA certifications, including the one given to him by Kackos, and told he would be interviewed by human resources, which at the time his pleading was formed had not occurred. (Compl. ¶ 24).

On January 14, 2021, defendant HKA Enterprises terminated plaintiff's employment, and Dominion Power and defendant John Wood Group suspended him for one year from working for either company. Defendants, allegedly falsely, informed OSHA and Dominion Power that plaintiff was involved in the fraudulent OSHA certification training course. Plaintiff alleges, as a result of his termination, suspension, and the purportedly false statements, that he lost the house he was in the process of buying, became stressed to the point of ending his relationship with the mother of his minor daughter, and moved to Pensacola, Florida, a significant distance from his daughter in Virginia.

COURT'S DISCUSSION

A. Standard of Review

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. Fed.R.Civ.P. 12(b)(4), (5). Further, “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); see also Omni Cap. Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”),^[6] implicating Rule 12(b)(2)'s enumeration of “lack of personal jurisdiction” as a basis for dismissal. Fed.R.Civ.P. 12(b)(2). Plaintiff bears the burden both of showing personal jurisdiction and establishing that effective process has been served properly. See Mylan Lab'ys, Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993).

“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, 678 (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 enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

B. Analysis

1. Insufficient Process or Service of Process

Rule 81(c) provides that the Federal Rules of Civil Procedure “apply to a civil action after it is removed from a state court.” Fed.R.Civ.P. 81(c)(1) (emphasis added). Thus, where, as here, process is issued and service of that process is made prior to removal, the propriety of each is controlled by the law of the state court from which the action was removed. See Rice v. Alpha Sec., Inc., 556 Fed.Appx. 257, 260 (4th Cir. 2014); accord Cobb v. Aramark Corr. Servs., LLC, 937 F.3d 1037, 1040 (7th Cir. 2019); Anderson v. Allstate Ins. Co., 630 F.2d 677, 682 (9th Cir. 1980). Accordingly, the court turns to North Carolina's requirements regarding the sufficiency of process and service of that process.

a. Insufficient Process

Rule 4 of the North Carolina Rules of Civil Procedure requires that summons contain certain information such as “the title of the cause and the name of the court and county wherein the action has been commenced,” and, as important here, “shall be directed to defendant.” N.C. R. Civ. P. 4(b). The commentary to the rule explains that “the principal change in the content of the summons” implemented by 1967-enacted rule is that summons “shall be directed to the defendant rather than to a process officer.” N.C. R. Civ. P. 4(b) general statute commission's commentary to 1967 enactment. At its core, “[t]he purpose of a service of summons is to give notice to the party against whom a proceeding is commenced to appear at a certain place and time and to answer a complaint against him.” Harris v. Maready, 311 N.C. 536, 541 (1984). Thus “[w]hile [North Carolina's] Rule 4(b) does require that the summons be directed to the defendant . . ., [i]f it names [the defendant] in such terms that every intelligent person understands who is meant, . . . it has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else.” Wiles v. Welparnel Const. Co., 295 N.C. 81, 8485 (1978).

Here, the summons issued to accompany plaintiff's first amended complaint (which named HKA Enterprises as a defendant) is directed, in part, to:

(Table Omitted)

(State Court Pleadings (DE 1-8) at 2; Executed Summons (DE 30-2) at 1).^[7] Defendant HKA Enterprises contends that this is directed insufficiently to it because it fails to “identif[y] . . . an officer, director, or managing or authorized agent,” meaning it “is defective on its face.” (Def. HKA Enterprises's Mem. (DE 29) at 10) (quoting Sweeting v. Wells Fargo Bank, No. 3:17-CV-00309-FDW, 2017 WL 3923978, at *3 (W.D. N.C. Sept. 7, 2017))).

The cases cited by defendant HKA Enterprises rely ultimately on the text of North Carolina Rule 4(j)(6) or cases interpreting that rule for their holding. See Lane v. Winn-Dixie Charlotte, Inc., 169 N.C.App. 180, 187 (2005) (“A review of the summons demonstrates that plaintiffs failed to designate any person authorized by Rule 4(j)(6) to be served on behalf of the corporate defendant in violation of the clear requirements of the rule. Accordingly, the summons was defective on its face.”); Fulton v. Mickle, 134 N.C.App. 620, 623-24 (1...