Johnson-Richardson v. Univ. of Phx.

THOMAS C. JOHNSON-RICHARDSON, Plaintiff, v. UNIVERSITY OF PHOENIX, et al., Defendants.

Civil Action No. 18-3016 (RDM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

February 4, 2020

MEMORANDUM OPINION AND ORDER

Plaintiff, Thomas C. Johnson-Richardson, brings this action against his former employer, the University of Phoenix (the "University"), and his former supervisor at the University, Jessica Choi-Segert, alleging that Defendants "committed an unlawful act against [him] in violation of Title IX." Dkt. 4 at 1 (Am. Compl. 8). Defendants move to dismiss on three grounds: (1) Plaintiff has not properly effected service; (2) Plaintiff executed a binding release; and (3) Plaintiff's claim is subject to binding arbitration. Dkt. 18. As explained below, the Court agrees that Plaintiff has not yet effected service, but, because Plaintiff is proceeding pro se, the Court will afford Plaintiff a further opportunity to do so. The Court further concludes that Defendants' contentions that Plaintiff has released any claim that he might otherwise have and, in any event, has agreed to binding arbitration, require consideration of materials beyond the scope of the pleadings and are thus premature. The Court will, according, deny Defendants' motion to dismiss but will require that Plaintiff file proof of service within 45 days. If Plaintiff fails to do so, the Court will dismiss the action without prejudice pursuant to Rule 4(m). See Fed. R. Civ. P. 4(m).

I. BACKGROUND

For purposes of the pending motion, the Court must accept the non-conclusory factual allegations set forth in the amended complaint as true and will also consider the University's letter to Plaintiff regarding his Title IX complaint ("Title IX Letter"), which is referenced in, and attached to, the amended complaint. See Dentons US LLP v. Republic of Guinea, 208 F. Supp. 3d 330, 334-35 (D.D.C. 2016).

Plaintiff was hired by the University as a "Campus Operations Specialist" on October 15, 2015. Dkt. 4 at 1 (Am. Compl. ¶ 10). On September 13, 2017, Plaintiff filed an internal complaint with the University alleging that his then-supervisor, Jessica Choi-Segert, discriminated against him on the basis of gender. Id. at 2 (Am. Compl.) (Title IX Letter). Upon receiving Plaintiff's internal complaint, the University investigated the allegations, "determined that there was sufficient evidence to substantiate policy violations," concluded that "there was an opportunity to increase understanding," and, to that end, provided Ms. Choi-Segert with "coaching." Id. at 2 (Am. Compl.) (Title IX Letter). Having notified the Plaintiff of that determination and course of action, the University considered the "matter to be closed." Id.

Plaintiff was less sure and, he therefore "asked to be moved to another department for fear of retaliation/harassment." Id. at 1 (Am. Compl. ¶ 5). The University denied that request. Id. After the denial, Plaintiff began "collecting evidence" to "support his claims of retaliation and harassment." Id. at 1 (Am. Compl. ¶ 6). Plaintiff subsequently provided the evidence he collected to the University's "lead investigator for the HR department," but the University took no action. Id. at 1 (Am. Compl. ¶ 7). On January 3, 2018, Plaintiff "filed [an administrative] complaint with the U.S. Equal Opportunity Commission" ("EEOC") alleging that Choi-Segertand the University "had committed an unlawful act against [him] in violation of Title IX." Id. (Am. Compl. ¶ 9).

On April 13, 2018, the University terminated Plaintiff's employment. Id. (Am. Compl. ¶ 10). Months later, on September 12, 2018, the EEOC closed its file on Plaintiff's case and issued a right-to-sue letter. Id. (Am. Compl. ¶ 9); Dkt. 4 at 9. On December 11, 2018, Plaintiff timely filed suit, see Dkt. 1 (Compl.), but the Court sua sponte dismissed his complaint without prejudice because it failed to comply with Federal Rules of Civil Procedure 8, 10, and 11, see Minute Order (Fed. 4, 2019). On February 26, 2019, Plaintiff filed an amended complaint, Dkt. 4, accompanied by an "affidavit of mailing" attesting that he mailed a copy of the summons and complaint to Defendants by certified mail on February 2, 2019, see Dkt. 5.

II. LEGAL STANDARD

Rule 12(b)(5) governs motions to dismiss for insufficient service of process. Fed. R. Civ. P. 12(b)(5). In responding to a motion to dismiss brought under Rule 12(b)(5), the plaintiff bears the burden of proving that he effected service. Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003). "[U]nless the procedural requirements for effective service of process are satisfied, a court lacks authority to exercise personal jurisdiction over the defendant." Candido v. District of Columbia, 242 F.R.D. 151, 160 (D.D.C. 2007) (citing Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 514 (D.C. Cir. 2002)). Failure to effect service is grounds for dismissal. See id. at 164 (citing Fed. R. Civ. P. 4(m)). The Court can, however, "in its sound discretion," also "direct that service be effected within a particular period of time." Wilson v. Prudential Fin., 332 F. Supp. 2d 83, 89 (D.D.C. 2004) (quoting Fed. R. Civ. P. 4(m)).

A motion to dismiss pursuant to Rule 12(b)(6), in contrast, is designed to test the legal sufficiency of the complaint. Fed. R. Civ. P. 12(b)(6). In evaluating a Rule 12(b)(6) motion, theCourt "must first 'tak[e] note of the elements a plaintiff must plead to state [the] claim' to relief, and then determine whether the plaintiff has pleaded those elements with adequate factual support to 'state a claim to relief that is plausible on its face.'" Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015) (alterations in original) (internal citation omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 678 (2009)). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), "a complaint must contain sufficient factual matter, [if] accepted as true, to 'state a claim to relief that is plausible on its face,'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). If the Court concludes that the movant's arguments go beyond the pleadings, the Court may either deny the motion on that ground or may, where appropriate and with reasonable notice to the parties, convert the motion to dismiss to one for summary judgment under Rule 56. See Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011) (citing Fed. R. Civ. P. 12(d)).

III. ANALYSIS

Defendants move to dismiss on three grounds: They argue that Plaintiff has failed to effect service; that he executed a release; and that the case is subject to binding arbitration. Dkt. 18-1 at 4-5.

A. Ineffective Service of Process

Defendants first argue that the Court should dismiss the action because Plaintiff has failed to effect service of process. See id. at 7-8. Plaintiff disagrees, asserting that he mailed the "complaint and summons" to Defendants "by way of US certified mail, return receipt" and that "[d]elivery . . . to both parties was confirmed and dated February 4th and February 5th." Dkt. 23 at 1-2. As explained below, even accepting Plaintiff's factual representations, he has yet to effect service in the manner required by Rule 4.

Under Rule 4, "[t]he plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m)"—that is, 90 days after the complaint is filed. Fed. R. Civ. P. 4(c)(1) & (m). An individual may be served in the manner prescribed by the law of "the state where the district court is located or where service is made;" by "delivering a copy of the summons and . . . complaint to the individual personally;" by "leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there;" or by "delivering a copy of each to an agent authorized by appointment or by law to receive service of process." Fed. R. Civ. P. 4(e). A corporation or partnership may be served in the manner prescribed by the relevant state law or "by delivering a copy of the summons and . . . complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant." Fed. R. Civ. P. 4(h). In any event, service must be made by a "person who is at least 18 years old and not a party" to the lawsuit. Fed. R. Civ. P. 4(c)(2). If service is not made "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).

On February 26, 2019, Plaintiff filed two affidavits of mailing with the Court, attesting that he mailed a copy of the summons and complaint to Defendants on February 2, 2019, and that the return receipts confirmed that the materials were delivered on February 4 and 5, 2019. Dkt. 5 at 1-2. Approximately a month later, he filed two certified mail receipts dated January 31, 2019, and two U.S. Postal Service tracking records, one indicating that a mailing wasdelivered to Benjamin Wellington, who Plaintiff asserts is the associate general counsel of Apollo Education Group, Inc., on February 5, 2019, and the other indicating that a mailing was delivered to Jessica Choi-Segert on February 4, 2019. Dkt. 6 at 2-7. Defendants argue that these filings fail to evidence effective service of process for two reasons.

Defendants first question the sequence of events. As explained above, the Court sua sponte dismissed Plaintiff's original complaint on February 4, 2019. In Defendants' view, this doomed Plaintiff's effort to effect service because Plaintiff could not have served his amended complaint before the Court dismissed his original complaint with leave to amend, and,...