WATSON v. DC WATER AND SEWER AUTHORITY et al

Filing 11

MEMORANDUM OPINION Regarding 10 ORDER GRANTING-IN-PART and DENYING-IN-PART WITHOUT PREJUDICE Defendants' 5 Motion to Dismiss. Signed by Judge Colleen Kollar-Kotelly on 4/19/2017. (lcckk3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BRIAN WATSON,
Plaintiff,
v.

Civil Action No. 16-2033 (CKK)

D.C. WATER & SEWER AUTHORITY, et al.,
Defendants.

MEMORANDUM OPINION
(April 19, 2017)
Plaintiff, proceeding pro se, alleges that Defendants refused to hire him for a position as a
water sewer worker in retaliation for his earlier participation in a class action lawsuit against
Defendant D.C. Water and Sewer Authority (“Authority”) in violation of Title VII of the Civil
Rights Act of 1964. Defendants have moved to dismiss the Complaint under Federal Rules of
Civil Procedure 12(b)(5) and 12(b)(6). Defendants argue that the Complaint must be dismissed
because Plaintiff has not properly served any Defendant and that, regardless, the individual
named-Defendants should be dismissed under Rule 12(b)(6) because they are not proper parties
to a lawsuit brought under Title VII. Upon consideration of the pleadings, 1 the relevant legal
authorities, and the record as a whole, the Court GRANTS-IN-PART and DENIES-IN-PART
WITHOUT PREJUDICE Defendants’ [5] Motion to Dismiss. The Court will dismiss certain

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The Court’s consideration has focused on the following documents:
• Defs.’ Mot. to Dismiss Pl.’s Am. Compl. (“Defs.’ Mot.”), ECF No. 5;
• Pl.’s Mot. in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 8; and
• Defs.’ Reply to Pl.’s Opp’n to Mot. to Dismiss (“Defs.’ Reply”), ECF No. 9.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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individual Defendants from the case and grant Plaintiff an additional 30 days to properly serve
the remaining Defendants.
I. BACKGROUND
For the purposes of the motion before the Court, the Court accepts as true the wellpleaded allegations in Plaintiff’s Complaint. The Court does “not accept as true, however, the
plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp.
v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). Further, because Plaintiff
proceeds in this matter pro se, the Court must consider not only the facts alleged in Plaintiff’s
Complaint, but also the facts alleged in Plaintiff’s Opposition to Defendant’s Motion to Dismiss.
See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (“a district court
errs in failing to consider a pro se litigant’s complaint ‘in light of’ all filings, including filings
responsive to a motion to dismiss”) (quoting Richardson v. United States, 193 F.3d 545, 548
(D.C. Cir. 1999)).
Plaintiff alleges that in 2013 he participated in a class action lawsuit against the Authority
alleging that the Authority discriminated against African American employees. Am. Compl.,
ECF No. 3, at 1. Plaintiff claims that he had been constructively discharged because of his race.
Id. After his participation in that lawsuit, Plaintiff allegedly applied for the position of water
sewer worker, grade 6, with the Authority but was denied the position. Id. Plaintiff maintains
that the Authority’s failure to hire him for the position was an act of retaliation for his
participation in the 2013 class action. Id. at 1-2. Plaintiff names Defendant George Hawkins in
his Amended Complaint as the individual with ultimate responsibility for hiring and firing
employees at the Authority, and Defendants Raymond Haynesworth, Alan Martin and Frank
Baylor as Mr. Hawkins’ management team “responsible for this process.” Id. at 2-3.

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II. LEGAL STANDARDS
A. Federal Rule 12(b)(5)
“In the absence of service of process (or waiver of service by the defendant), a court
ordinarily may not exercise power over a party the complaint names as defendant.” Murphy
Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). Pursuant to Federal Rule of
Civil Procedure 12(b)(5), “if the plaintiff does not properly effect service on a defendant, then
the defendant may move to dismiss the complaint” without prejudice. Hilska v. Jones, 217
F.R.D. 16, 20 (D.D.C. 2003). “The party on whose behalf service is made has the burden of
establishing its validity when challenged; to do so, he must demonstrate that the procedure
employed satisfied the requirements of the relevant portions of [Federal Rule of Civil Procedure
4] and any other applicable provision of law.” Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987)
(internal quotation omitted).
B. Federal Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.

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III. DISCUSSION
Defendants first move to dismiss the Complaint for lack of adequate service. “Absent
proper service of process, a Court may not exercise personal jurisdiction over the defendants
named in the complaint.” Dominguez v. D.C., 536 F. Supp. 2d 18, 22 (D.D.C. 2008). Plaintiff
concedes that service has not been properly completed, but asks the Court to not dismiss his
Complaint because he is proceeding pro se and his error was harmless and can be corrected.
Pl.’s Opp’n at 4.
The Court is mindful that “[p]ro se litigants are allowed more latitude than litigants
represented by counsel to correct defects in service of process and pleadings.” Moore v. Agency
for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993). Accordingly, the Court finds that dismissal of
this pro se Complaint for failure to adhere to procedural requirements for service would not be
appropriate at this time. That being said, “[t]he accommodation a court should provide a pro se
litigant is not without limits.” Cruz-Packer v. D.C., 539 F. Supp. 2d 181, 188 (D.D.C. 2008).
The Court will not simply ignore the requirement that service be effectuated and move forward
with this case. Instead, the Court will give Plaintiff another opportunity to properly serve the
Defendants, and file proof of such service, by May 19, 2017—30 days from the date of this
Order. Plaintiff must properly serve Defendants by this date, or risk dismissal of this case. The
Court will DENY Defendants’ Motion to Dismiss for lack of effective service at this time
WITHOUT PREJUDICE to it being refiled if service is not completed properly by May 19,
2017.
Lastly, Defendants alternatively move to dismiss Plaintiff’s Complaint under Rule
12(b)(6) for failure to state a claim against the four individual Defendants. In his Opposition,
Plaintiff states that he “is not suing the Defendants Baylor, Haynesworth, and Martin as

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individual Defendants under Title VII of the Civil Rights Act of 1964 and hereby dismisses them
as Defendants.” Pl.’s Opp’n at 1. Based on this representation, the Court GRANTS-IN-PART
Defendants’ Motion to Dismiss in that it DISMISSES Baylor, Haynesworth, and Martin as
Defendants in this case. The Court does not reach the merits of Defendants’ Rule 12(b)(6)
motion with respect to Defendant Hawkins, whom Plaintiff has not agreed to voluntarily dismiss,
because, as explained above, the Court does not yet have personal jurisdiction over Defendant
Hawkins due to Plaintiff’s failure to serve him. See Hilska, 217 F.R.D. at 23 n.10 (“to proceed to
a Rule 12(b)(6) determination, the court must first determine that the plaintiff has properly
effected service of process.”). The Court does, however, note that Plaintiff has clarified his
Complaint by explaining that Hawkins is “being sued in his capacity as the agent of the employer
who is alone liable for a violation of Title VII,” Pl.’s Opp’n at 6, and not as an individual
Defendant who is allegedly himself liable.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS-IN-PART and DENIES-IN-PART
WITHOUT PREJUDICE Defendants’ Motion to Dismiss. Defendants Baylor, Haynesworth,
and Martin are DISMISSED from this case. Plaintiff must serve the remaining Defendants and
file proof of such service by May 19, 2017. An appropriate Order accompanies this
Memorandum Opinion.
Dated: April 19, 2017
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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