Snipe v. Staples The Office Superstore East LLC

Filing 16

MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 1/17/2023. (twk)

Case 1:21-cv-01069-MN Document 16 Filed 01/17/23 Page 1 of 8 PageID #: 139

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ALLEN B. SNIPE,
Plaintiff,
v.
STAPLES THE OFFICE SUPERSTORE
EAST, LLC,
Defendant.

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C.A. No. 21-1069 (MN)

MEMORANDUM OPINION
Allen B. Snipe, Newark, Delaware – Pro Se Plaintiff.
Lindsay Neinast, LITTLER MENDELSON, P.C., Wilmington, Delaware – Attorneys for Defendant.

January 17, 2023
Wilmington, Delaware

Case 1:21-cv-01069-MN Document 16 Filed 01/17/23 Page 2 of 8 PageID #: 140

NOREIKA, U.S. DISTRICT JUDGE:
Plaintiff Allen B. Snipe (Plaintiff”), who appears pro se, filed this employment
discrimination case by reason of race on July 21, 2021, pursuant to Title VII of the Civil Rights
Act of 1964, as codified, 42 U.S.C. §§ 2000e to 2000e17.
Defendant’s motion to dismiss.
I.

(D.I. 12).

(D.I. 1).

Before this Court is

The matter has been briefed.

BACKGROUND
Plaintiff was hired by Staples 1 on October 29, 2019, as a store manager in training.

(D.I. 1 at 9).

Plaintiff is black and alleges discrimination by reason of race through failure to

promote, unequal terms and conditions of employment and retaliation.
employment was terminated on February 4, 2020.
discrimination on October 23, 2020.
April 30, 2021.

(Id. at 9).

(Id. at 9).

(D.I. 1 at 2-3, 10). His

Plaintiff filed a charge of

The EEOC notice of suit rights is dated

(D.I. 1 at 8).

Defendant moves to dismiss pursuant to Rules 4(m), 12(b)(5) and 12(b)(6) of the Federal
Rules of Civil Procedure on the grounds of untimely and insufficient service of process and failure
to state claims upon which relief can be granted.

(D.I. 12, 12-1).

Plaintiff’s response addresses

the service issues, but does not address whether the Complaint states claims upon which relief can
be granted.
II.

(D.I. 13).

RULE 12(b)(5)
Defendant moves for dismissal on the grounds that Plaintiff made no effort to serve it

despite signing a statement acknowledging his responsibility to do so. (D.I. 7, D.I. 12-1 at 7).
Plaintiff responds that he thought Defendant “was being served at the same time when the case

1

The appropriate name of Defendant is Office Superstore East, LLC. (See D.I. 12 at 1).
1

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was being filed.” (D.I. 13).

Attached to the response is a certificate of mailing to Defendant

dated May 12, 2022, the same day the response to the motion to dismiss was filed.

(D.I. 13-1). 2

A defendant may file a motion to dismiss pursuant to Rule 12(b)(5) of the Federal Rules
of Civil Procedure when a plaintiff fails to properly serve summons and complaint.

Under Rule

12(b)(5), the Court has “broad discretion” in deciding whether to dismiss the complaint for
insufficient service.

See Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992).

The Third

Circuit has instructed that “dismissal of a complaint is inappropriate when there exists a reasonable
prospect that service may yet be obtained.”

Id.

Rule 4(c)(1) of the Federal Rules of Civil Procedure states that a “summons must be served
with a copy of the complaint. The plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person
who makes service.”

Rule 4(h) of the Federal Rules of Civil Procedure permits service of a

corporation (1) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (2) by
delivering a copy of the summons and of the 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)(1).
A plaintiff “is responsible for having the summons and complaint served within the time
allowed by Rule 4(m).” FED. R. CIV. P. 4(c)(1).

2

Rule 4(m) imposes a 90–day time limit for

Attached to Plaintiff’s response to the motion to dismiss is a United States Postal Service
receipt dated May 12, 2022, the date of Plaintiff’s response, and a certified mail receipt
addressed to defense counsel, Littler Mendelson. (D.I. 13-1). There is no indication of
what was in the package. In its reply brief, Defendant informs the Court that on
May 16, 2022, its counsel received a letter from Plaintiff enclosing the response to the
motion to dismiss and a copy of Plaintiff’s complaint. (D.I. 14 at 3).
2

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perfection of service following the filing of a complaint.

If service is not completed within that

time, the action is subject to dismissal without prejudice.

See FED. R. CIV. P. 4(m); see also MCI

Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir. 1995).
Although courts should grant pro se plaintiffs leniency in considering their filings, pro se
plaintiffs are nevertheless expected to “follow the rules of procedure and the substantive law[.]”
Thompson v. Target Stores, 501 F. Supp. 2d 601, 603 (D. Del. 2007).

Courts are, however,

generally “reluctant to dismiss an action where there is a possibility of proper service because
dismissal ‘needlessly burdens the parties with additional expense and delay and postpones the
adjudication of the controversy on its merits.’” Copia Commc’ns, LLC, v. AM Resorts, L.P.,
Civ.A.No. 16-5575, 2017 WL 2656184, at *6 (E.D. Pa. June 20, 2017) (citation omitted).
Defendant was not served as of the date it filed its motion to dismiss.

Once Plaintiff was

apprised of this, he attempted service as evidenced by his response and mailing certificate.
Defendant argues this does not suffice to show good cause for failure to serve. To the contrary,
this Court finds that Plaintiff has proffered good cause for the failure to properly and timely serve
Defendant.

As a pro se litigant Plaintiff could have assumed service was affected when he filed

the Complaint.

Notably, when Plaintiff realized his error, he attempted to remedy it.

Accordingly, this Court will deny without prejudice Defendant’s motion to dismiss for improper
service and deny the motion for untimely service.

To the extent that Plaintiff has not properly

served Defendant, he will be given an extension of time to properly effectuate service.
III.

RULE 12(b)(6)
Defendant moves to dismiss the Title VII claims for failure to state claims upon which

relief can be granted. The Complaint raises employment discrimination claims by reason of race

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for failure to promote, unequal terms and conditions of employment and retaliation. 3
did not respond to this portion of the motion to dismiss.

Plaintiff

A plaintiff who fails to brief his

opposition to portions of motions to dismiss does so at the risk of having those parts of the motions
to dismiss granted as uncontested.

See Lada v. Delaware County Community College, Civ.A.No.

08-4754, 2009 WL 3217183, at *10 (E.D. Pa. Sept. 30, 2009).
A.

Legal Standards

Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent
standards than formal pleadings drafted by lawyers”.
(1972).

Haines v. Kerner, 404 U.S. 519, 520

If the court can reasonably read pleadings to state a valid claim on which the litigant

could prevail, it should do so despite failure to cite proper legal authority, confusion of legal
theories, poor syntax and sentence construction, or litigant’s unfamiliarity with pleading
requirements.

Boag v. MacDougall, 454 U.S. 364 (1982).

Under liberal pleading rules, a

district court should construe all allegations in a complaint in favor of the complainant.

Gibbs v.

Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d
63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6) standard); Markowitz v. Northeast Land
Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).

There are limits to the court’s procedural

flexibility – “pro se litigants still must allege sufficient facts in their complaints to support a claim
. . . they cannot flout procedural rules – they must abide by the same rules that apply to all other

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Defendant did not move to dismiss the unequal terms and conditions of employment claim.
“To establish a claim for unequal terms and conditions in employment, or disparate
treatment, [Plaintiff] must establish that he (1) is a member of a protected class; (2) was
qualified for the position; (3) was negatively affected by Defendant’s employment
decisions; and (4) was treated less favorably than employees not within his protected
class.” Rhode v. Camden Redevelopment Agency, Civ.A.No. 20-20337-NLH-KMW,
2021 WL 71597, at *3 (D.N.J. Jan. 8, 2021) (quoting Dickerson v. New Jersey Institute of
Tech., Civ.A.No. 19-8344 (KM) (JBC), 2020 WL 7054156, at *6 (D.N.J. Dec. 2, 2020)).
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litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted).
Because Plaintiff proceeds pro se, this Court will consider the facts and make inferences where it
is appropriate.
A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for “failure
to state a claim upon which relief can be granted.”

“[D]etailed pleading is not generally

required.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016).

The rules require

“‘only a short and plain statement of the claim showing that the pleader is entitled to relief, in order
to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotations
omitted).

Hence, to survive a motion to dismiss, a complaint must “state a claim to relief that is

plausible on its face” by providing facts which “permit the court to infer more than the mere
possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
In assessing the sufficiency of a complaint, the Court must accept as true all material
allegations in the complaint and all reasonable factual inferences must be viewed in the light most
favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008).

The Court need

not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts
set forth in the complaint. See California Pub. Employees’ Retirement Sys. v. The Chubb Corp.,
394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d
Cir. 1997)).

Nor must the Court accept legal conclusions set forth as factual allegations.

Atlantic Corp., 550 U.S. at 555.

Bell

Thus, the United States Supreme Court has held that a complaint

is properly dismissed under Fed. R. Civ. P. 12(b)(6) where the factual content does not allow the
court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft, 556 U.S. at 678; see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.

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2008) (finding that, under Twombly, “labels and conclusions, and a formulaic recitation of the
elements of a cause of action” do not suffice.

The complaint therefore “must allege facts

suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation
that discovery will reveal evidence of the necessary element[s] of his claim.”).
B.

Id. at 233, 234.

Failure to Promote

The Court turns first to Plaintiff’s failure to promote claim.

Defendant argues that

Plaintiff fails to state a failure to promote claim because Plaintiff did not allege that he applied for
and was qualified for any open position or provide facts such as the type of promotion, who
rejected his request for a promotion, and whether he was qualified for the position.
To state a Title VII claim of race discrimination based on failure to promote, a plaintiff
must allege: (1) he is a member of a protected class; (2) he applied for and was qualified for a job
for which the employer sought applicants; (3) despite his qualifications, he was rejected; and
(4) after his rejection, the position remained open and the employer continued to seek applicants
from persons of plaintiff’s qualifications. Noel v. The Boeing Co., 622 F.3d 266, 274 (3d Cir.
2010) (citing Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)).
Plaintiff alleges that he belongs to a protected category (i.e., his race) (D.I. 1 at 10); he
asked about his promotion to manager once he finished his module training (id. at 9); he was
rejected even though he had completed the modules (id.), and continued to work as a full time
manager in training, and that a manager in training of a different race seeking the same promotion
was treated more favorably (id.).

Liberally construing the failure to promote claim, as this Court

must, the Court finds that Plaintiff states a Title VII failure to promote claim.
to promote claim survives dismissal.

Plaintiff’s failure

Defendant’s motion to dismiss this claim will be denied.

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C.

Retaliation

Defendant moves to dismiss on the grounds that Plaintiff does not plead the elements of a
retaliation claim.

“A claim of discriminatory retaliation has three elements: (1) plaintiff engaged

in conduct protected by Title VII; (2) the employer took adverse action against him; and (3) a
causal link exists between his protected conduct and the employer’s adverse action.” Young v.
City of Philadelphia Police Dep’t, 651 F. App’x 90, 95 (3d Cir. 2016).
Again, this Court liberally construes Plaintiff’s allegations.
prong for retaliation.

Plaintiff has met the first

When he was not promoted to manager, around December 23, 2019 he

complained to Human Relations that he was bring treated less favorably than his white counterpart.
(D.I. 1 at 10).

He has also met the second prong.

The next day he was not allowed in the store

and, once allowed in the store, discovered that he was not being properly trained and thereafter
was written up for menial matters.

Finally, Plaintiff has met the third prong.

Less than two

months after Plaintiff complained in late December, his employment was terminated on
February 4, 2020 “as a result of false reprimands.”
dismissal.
IV.

Plaintiff’s retaliation claim survives

Defendant’s motion to dismiss will be denied.

CONCLUSION
For the above reasons, the Court will: (1) deny Defendant’s motion to dismiss for

ineffective service without prejudice to renew in the event the May 12, 2022 service of Defendant
is defective or service is not properly made within the extra time allowed by the Court, and (2) deny
Defendant’s motion to dismiss under Rule 4(m) and Rule 12(b)(6) of the Federal Rules of Civil
Procedure.

(D.I. 12).

An appropriate order will be entered.

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