Griffin v. Inogen

1

LINTON J. GRIFFIN, Plaintiff, v. INOGEN, Defendant.

Civil Action No. 4:23-cv-411-ALM-KPJ

United States District Court, E.D. Texas, Sherman Division

August 9, 2024

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE.

Pending before the Court is Defendant Inogen's (“Defendant”) Second Motion to Dismiss Under Rule 12(b) and Brief in Support (the “Second Motion to Dismiss”) (Dkt. 15), to which Plaintiff Linton J Griffin (“Plaintiff”) filed a response (the “Response”) (Dkt. 18), Defendant filed a reply (the “Reply”) (Dkt. 19), and Plaintiff filed a sur-reply (the “Sur-Reply”) (Dkt. 21). For the following reasons, the Court recommends that the Second Motion to Dismiss (Dkt. 15) be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

On May 8, 2023, Plaintiff, proceeding pro se, filed a complaint (the “Complaint”) (Dkt. 1) against Defendant, identified as “Inogen.”^[1] Dkt. 1. In the Complaint (Dkt. 1), Plaintiff asserts that Gary Wilson (“Mr. Wilson”), Plaintiff's supervisor, called him racial slurs, such as the “N-word,” and asked him to discuss sexual matters. Id. at 3. Plaintiff alleges that he reported this matter to Defendant's human resources department (“Human Resources”) and, at some point, requested a transfer. See id. According to Plaintiff, this request was denied, and Plaintiff received “negative evaluations” thereafter. Id. Subsequently, Plaintiff filed a charge with the EEOC (the “First Charge”) (Dkt. 1-3). See Dkt. 1-3. Plaintiff alleges that after he filed the First Charge, he was subjected to increased work scrutiny, verbally abused by Mr. Wilson, denied access to mandatory training received by his co-workers, and, eventually, terminated. Dkt. 1 at 3. Thereafter, Plaintiff filed a second charge with the EEOC (the “Second Charge”) (Dkt. 1-4). See Dkt. 1-4.

Based on the foregoing allegations, Plaintiff asserts several unspecified discrimination and retaliation claims arising under Title VII of the Civil Rights Act of 1964 (“Title VII”). See Dkt. 1 at 1, 3. Construed liberally, Plaintiff appears to assert the following claims: (1) disparate treatment based on his race, color, and sex; (2) retaliatory discharge based on his complaints to Human Resources and the filing of the First Charge (Dkt. 1-3); (3) hostile work environment arising out of Mr. Wilson's racial slurs and request to discuss sexual matters; and (4) various other retaliation claims arising after the filing of the First Charge (Dkt. 1-3).^[2]

On June 2, 2023, the Clerk of Court issued summons (the “First Summons”) to “Inogen,” which Plaintiff returned executed on June 26, 2023. See Dkts. 3-4. On July 5, 2023, Defendant filed the Motion to Dismiss Under Rule 12(b)(4) and (5) and brief in Support (the “First Motion to Dismiss”) (Dkt. 5), arguing that this case should be dismissed because: (1) the First Summons incorrectly named Defendant as “Inogen” rather than “Inogen, Inc”; (2) Plaintiff improperly mailed the First Summons himself; and (3) Plaintiff mailed the First Summons to “Inogen” rather than to Defendant's registered agent or someone authorized to accept service on Defendant's behalf. See Dkt. 5. On October 23, 2023, the Court recommended that the First Motion to Dismiss (Dkt. 5) be granted in part and denied in part. Dkt. 10 at 1, 7. Specifically, the Court found that, while service was improper and the First Summons was defective, Defendant was not prejudiced by these errors. See id. at 5-7. On this basis, the Court recommended that Plaintiffs defective service be quashed, but that he be given an opportunity to rectify the errors by attempting service in compliance with Rule 4 of the Federal Rules of Civil Procedure. Id. at 7. On November 13, 2023, the District Judge adopted the Court's recommendation and ordered Plaintiff to reattempt service by December 13, 2023. See Dkt. 13.

On November 16, 2023, the Clerk of Court issued summons (the “Second Summons”) to “InCorp Services, Inc.”-Defendant's registered agent for service of process. See Dkt. 14 at 1. On November 20, 2023, Defendant filed the Second Motion to Dismiss (Dkt. 15), wherein Defendant argues, once again, that service was defective because the Second Summons improperly named Defendant's registered agent rather than “Inogen, Inc.” See Dkt. 15 at 9-10. Defendant further argues that two of Plaintiff's claims should be dismissed because he failed to exhaust his administrative remedies, and that all of Plaintiff's claims should be dismissed because they fail to state a claim upon which relief can be granted. See id. at 11-28.

On December 4, 2023, the Clerk of Court issued summons (the “Third Summons”) to “Inogen, Inc.” Dkt. 17 at 1. That same day, Plaintiff filed the Response (Dkt. 18), wherein Plaintiff requests that the Second Motion to Dismiss (Dkt. 15) “be denied in full due to the Adverse Actions described in the Complaint and the failure of [Defendant] to provide a safe working environment.” Dkt. 18 at 1. On December 11, 2023, Defendant filed the Reply (Dkt. 19). See Dkt. 19. On December 13, 2023, Plaintiff returned the Third Summons, wherein Plaintiff's private process server represents that the Third Summons, addressed to “Inogen, Inc.,” was properly served on Defendant's registered agent on December 6, 2023. See Dkt. 20 at 1. That same day, Plaintiff filed the Sur-Reply (Dkt. 21). See Dkt. 21.

II. LEGAL STANDARD

A. Improper Service

The plaintiff bears the burden of proof regarding the sufficiency of service of process. See FED. R. CIV. P. 4(c); see also Coleman v. Bank of N.Y. Mellon, 969 F.Supp.2d 736, 744 (N.D. Tex. 2013) (citing Lechner v. Citimortgage, Inc., No. 09-cv-302, 2009 WL 2356142, at *1 (N.D. Tex. July 29, 2009)). “When process is insufficient, ‘federal courts have broad discretion to dismiss an action.'” Coleman, 969 F.Supp.2d at 744 (quoting Chapman v. Trans Union LLC, No. H-11-553, 2011 WL 2078641, at *1 (S.D. Tex. May 26, 2011)); see also Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir. 1994) (“A district court, however, has broad discretion to dismiss an action for ineffective service of process ....” (citing George v. U.S. Dep't of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986))).

“When a district court finds insufficient process or insufficient service, it may either dismiss the suit for failure to effect service or quash the service, giving the plaintiff an opportunity to reserve the defendant.” Currington v. XTO Energy, Inc., No. 12-cv-589, 2013 WL 12155258, at *1 (E.D. Tex. July 2, 2013) (collecting cases). Additionally, “defects in the summonses are not fatal if they do not prejudice the defendant.” Coleman, 969 F.Supp.2d at 744 (collecting cases). For service to be effective, the plaintiff must comply with the requirements of Federal Rule of Civil Procedure 4. See FED. R. CIV. P. 4. Federal Rule of Civil Procedure 4(b) provides that, on or after filing the complaint, “the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant.” FED. R. CIV. P. 4(b).

B. Failure to State a Claim

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move for dismissal of an action if the plaintiff fails to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). “In evaluating motions to dismiss filed under Rule 12(b)(6), the court ‘must accept all well-pleaded facts as true, and . . . view them in the light most favorable to the plaintiff.'” Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 899 (5th Cir. 2019) (quoting Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th. Cir. 1986)). “Further, ‘[a]ll questions of fact and any ambiguities in the controlling substantive law must be resolved in the plaintiff's favor.'” Id. (quoting Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001)). However, courts are “not bound to accept as true ‘a legal conclusion couched as a factual allegation.'” In re Ondova Ltd., 914 F.3d 990, 993 (5th Cir. 2019) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

“The well-pleaded facts must permit the court ‘to infer more than the mere possibility of misconduct.'” Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). That is, the complaint “must allege enough facts to move the claim ‘across the line from conceivable to plausible.'” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011), as revised (Dec. 16, 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether the plausibility standard has been met is a ‘context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” Id. (quoting Iqbal, 556 U.S. at 663-64).

At the motion to dismiss stage, “[t]he court's review is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Allen v. Vertafore, Inc., 28 F.4th 613, 616 (5th Cir. 2022) (quoting Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)).

III. ANALYSIS

A. Improper Service

In the Second Motion to Dismiss (Dkt. 15), Defendant argues that the Second Summons improperly named its registered agent, rather than “Inogen, Inc.” See Dkt. 15 at 9-10. Plaintiff concedes as much by failing to address this argument in the Response (Dkt. 18). See Dkt. 18. However, Plaintiff rectified this deficiency by serving the Third Summons within the time parameters prescribed by the District Judge. Compare Dkt. 13 (ordering Plaintiff “to serve the summons and complaint upon De...