Bynum v. Domino's Pizza
Filing
11
ORDER AND OPINION denying plaintiffs 5 Motion Not to Transfer and plaintiffs 7 Motion Not to Allow Transfer of Civil Action from Superior Court and granting defendants 2 Motion to Dismiss, without prejudice. Signed by Judge Julie E. Carnes on 9/3/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WADDELL BYNUM, JR.,
Plaintiff,
CIVIL ACTION NO.
v.
1:13-cv-00473-JEC
DOMINO’S PIZZA,
Defendant.
ORDER & OPINION
This case is before the Court on defendant’s Motion to Dismiss
[2], plaintiff’s Motion Not to Allow Transfer [5], and plaintiff’s
Motion Not to Allow Transfer of Civil Action from Superior Court [7].
The Court has reviewed the record and the arguments of the parties,
and, for the reasons set out below, concludes that plaintiff’s Motion
Not to Allow Transfer [5] and plaintiff’s Motion Not to Allow
Transfer of Civil Action from Superior Court [7] should be DENIED,
and defendant’s Motion to Dismiss should be GRANTED.
The case is
dismissed without prejudice.
BACKGROUND
Plaintiff Waddell Bynum, Jr., proceeding pro se, is a resident
of
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Charlotte,
North
Carolina.
(Notice
of
Removal
[1]
at
1.)
Plaintiff filed a paragraph-long complaint in the Superior Court of
Fulton County, Georgia against defendant Domino’s Pizza LLC.
Compl., attached to Notice of Removal [1] at Ex. A.)
consists
of
a
largely
unintelligible
jumble
of
(See
The paragraph
phrases
and
allegations apparently relating to an alleged robbery of plaintiff
while he was employed as a pizza-delivery driver.
(Id.)
Plaintiff
seems to be claiming that defendant violated his civil rights,
breached a contract, and committed assault.
(Id.)
Plaintiff does
not state any of the elements of these causes of action, however, nor
does he include any specific facts supporting these individual
claims.
(Id.)
Nonetheless, plaintiff asks for summary judgment and
eight-billion dollars in relief.
(Id.)
Defendant removed the case to this Court on the basis of
diversity of citizenship.
(Notice of Removal [1] at 2.)
Defendant
then moved to dismiss plaintiff’s claims under FED. R. CIV. P. 12(b)(6)
for failure to state a plausible claim and under FED. R. CIV. P.
12(b)(2) for lack of jurisdiction due to improper service.
(Def.’s
Mot. to Dismiss [2] at 1.)
In response to defendant’s Motion to Dismiss, plaintiff filed
two motions objecting to the removal of the case from the Fulton
County Superior Court. (Pl.’s Mot. Not to Transfer (“Pl.’s Mot. #1”)
[5] at 1; Pl.’s Mot. Not to Allow Transfer of Civil Action from
Superior Ct. (“Pl.’s Mot. #2”) [7] at 1.)
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In addition to these
motions, plaintiff filed a memorandum of law explaining why this
Court should deny the removal.
(Pl.’s Mem. of Law in Opp’n of Def.’s
Transfer Mot. to Dismiss (“Pl.’s Mem.”) [8] at 1.)
complaint,
the
motions
and
memorandum
are
Like plaintiff’s
little
more
than
a
rambling, stream-of-consciousness conglomerations of random facts
mixed with indecipherable legal phrases and case citations. At best,
plaintiff’s motions and memorandum only tangentially engage the
substance of defendant’s motion to dismiss, instead focusing almost
entirely on why this Court should deny removal.
(Pl.’s Mot. #1 [5]
at 1; Pl.’s Mot. #2 [7] at 1; and Pl.’s Mem. [8] at 1.)
DISCUSSION
I.
DEFENDANT’S MOTION TO DISMISS
A.
A
Rule 12(b)(6) Argument
plaintiff’s
complaint
must
contain
“a
short
and
plain
statement of the claim showing that the pleader is entitled to
relief.”
FED. R. CIV. P. 8(a)(2).
A motion to dismiss under FED. R.
CIV. P. 12(b)(6) asks the Court to determine whether the pleader has
properly shown that it is entitled to relief.
FED. R. CIV. P.
12(b)(6). Courts must apply the standards articulated by the Supreme
Court in Bell Atlantic v. Twombly, Inc. and Ashcroft v. Iqbal in
gauging whether a complaint can survive a 12(b)(6) motion. See, e.g.
Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289 (11th Cir.
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2010). To survive a motion to dismiss, a complaint must contain more
than “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action.”
544, 555 (2007).
Bell Atl. Corp. v. Twombly, 550 U.S.
A plaintiff must present facts that rise above a
speculative level and instead state a facially plausible claim for
relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility
exists when “the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable
for
the
misconduct
alleged.”
Id.
In
determining
whether
a
plaintiff’s complaint meets this standard, courts need only accept
factual allegations as true, not legal conclusions or “[t]hreadbare
recitals” of a claim’s elements.
Plaintiff’s
complaint
standard of plausibility.
a
pro
se
plaintiff’s
interpretation
fails
254,
256
pleading,
possible,
(11th
to
satisfy
the
Twombly/Iqbal
While courts must afford some leniency to
even
under
plaintiff’s
cognizable cause of action.
App’x
Id. at 678.
Cir.
the
complaint
most
forgiving
identifies
no
Broner v. Wash. Mut. Bank, FA, 258 Fed.
2007)(“We
show
leniency
to
pro
se
litigants, but will not serve as de facto counsel or rewrite a
pleading in order to sustain an action.”)
Plaintiff provides a jumbled summary of facts that, at best,
show someone harmed him, but it is not clear whether the defendant
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even employed that person.
[1] at Ex. A.)
(Compl., attached to Notice of Removal
This type of pleading directly contradicts the
Supreme Court’s assertion in Iqbal that Rule 8 “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”
556 U.S. at 678.
Iqbal,
Similarly, defendant’s legal claims are not even
“[t]hreadbare recitals” of a claim’s elements, but simply a list of
the claims themselves.
Id.; (Compl., attached to Notice of Removal
[1] at Ex. A). Plaintiff states that he suffered “violation of civil
rights [sic] calling plaintiff out of his name and discrimination
following orders and being dealt with.
these
action
[sic]
would
not
Violation of contract saying
happen.OCGA-9-2-40-47
[sic]
Protection of th4e [sic] lawus [sic] Const.Art1-1 [sic].”
Equal
(Compl.,
attached to Notice of Removal [1] at Ex. A.) Because this incoherent
and conclusory lump of claims does not permit a reasonable inference
that the defendant is liable for anything, the complaint cannot
survive a motion to dismiss.1
After reviewing plaintiff’s filing history, the Court also
concludes that allowing the plaintiff to amend the complaint would be
1
Plaintiff also fails to address the merits of defendant’s
Motion to Dismiss in his later motions. Plaintiff only focuses on
how removal to federal court is improper, as opposed to why his
complaint does state a viable cause of action. (Pl.’s Mot. #1 [5] at
1; Pl.’s Mot. #2 [7] at 1; and Pl.’s Mem. [8] at 1.) Plaintiff’s
failure to engage defendant’s arguments and file a response motion
further supports dismissal of his claims.
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futile. Plaintiff has filed four other complaints in this Court, all
of which were as incomprehensible as the one at hand and all of which
were dismissed for either lack of subject matter jurisdiction,
failure to comply with a Court order, or because the claims were
frivolous.
Bynum v. Charlotte Hous. Auth., 1:11-cv-01770-JEC-AJB
(N.D. Ga., terminated July 20, 2011); Bynum v. Barton Sec., 1:11-cv00535-JEC-AJB (N.D. Ga., terminated Mar. 18, 2011); Bynum v. City of
Charlotte
Sanitation
Dep’t,
1:11-cv-00534-JEC-AJB
(N.D.
Ga.,
terminated Mar. 18, 2011); Bynum v. Mecklenburg Cnty. Sch., 1:11-cv00529-JEC-AJB (N.D. Ga., terminated Mar. 18, 2011).
Given plaintiff’s history of filing frivolous civil rights and
employment
claims,
there
would
be
little
purpose
in
allowing
plaintiff to prolong litigation of the present frivolously-drafted
complaint by allowing him to amend that complaint.
B.
Failure to Properly Serve Defendant
Even if plaintiff’s complaint did satisfy the Twombly/Iqbal
standards
for
plausibility,
this
Court
lacks
jurisdiction
over
defendant because of plaintiff’s improper service of process. As the
Eleventh Circuit has noted:
requirement:
a
court
lacks
“Service of process is a jurisdictional
jurisdiction
over
the
person
defendant when that defendant has not been served.”
Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990).
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of
a
Pardazi v.
Plaintiff initially filed his complaint in a Georgia state
court, and therefore the question of proper service is a matter of
Georgia law.
In an action against a corporation, service must be to
an officer or authorized agent.
Service
fails
here
because
O.C.G.A. § 9-11-4(e)(1)(A), (2)(A).
plaintiff
served
a
non-authorized
franchisee of the defendant corporation, not an officer or authorized
agent of the defendant itself. Stephens v. McDonald’s Corp., 245 Ga.
App. 109, 110 (2000)(service to franchisee did not constitute proper
service on the defendant); (Decl. of Ryan K. Mulally (“Mulally
Decl.”), attached to Notice of Removal [1] at ¶¶ 3-5).
Plaintiff
provides no evidence to rebut defendant’s evidence that service is
improper.
(Pl.’s Mot. #1 [5]; Pl.’s Mot. #2 [7]; and Pl.’s Mem.
[8].)
Upon removal to federal court, a plaintiff may correct an
initially-defective service of process. 28 U.S.C. § 1448. The rules
for serving a corporation in federal court are essentially the same
as Georgia’s requirements:
a plaintiff must serve either the
corporation’s officers or authorized agents.
FED. R. CIV. P. 4(h).
Plaintiff has not attempted to correct the initially defective
service to conform with this requirement.
In his second motion
asking the Court to deny removal, plaintiff apparently argues that
the defendant has no registered agent with the Georgia Secretary of
State and hence he cannot obtain the full title of the defendant
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corporation.
While Georgia law does allow service to the Secretary
of State when a plaintiff cannot serve the corporation’s officers or
registered agents, plaintiff provides no evidence that this exception
applies
to
defendant
and
hence
this
argument
is
unpersuasive.
O.C.G.A. § 9-11-4(e)(1)(A). In short, dismissal would also be proper
based on plaintiff’s failure to properly serve the defendant.
II.
MOTIONS TO DENY REMOVAL
Plaintiff’s motions to deny removal to this Court are also
baseless.
While written as confusedly as his complaint, plaintiff
seems to argue that because he did not receive notice of removal and
does not approve of it, the Court must remand the case back to the
state trial court.
(Pl.’s Mot. #1 [5] at 1.)
However, this Court
does have original jurisdiction over this action due to diversity of
citizenship.
To remove a case on the basis of diversity, the parties must be
citizens of different states at the time of filing and the amount in
controversy
must
exceed
$75,000.
28
U.S.C.
§
1332.
For
corporations, citizenship means the state of incorporation and its
principal place of business.
citizen of North Carolina.
Id. § 1332(b)(1).
Plaintiff is a
(Notice of Removal [1] at 1.)
Defendant
is incorporated in Michigan and has its principal place of business
there.
(Id. at 2.)
Its corporate parent, Domino’s Inc., is a
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Delaware
corporation
Michigan.
(Id.)
with
its
principal
place
of
business
in
The amount in controversy in this case is the
eight-billion dollars that plaintiff seeks.
(Compl., Notice of
Removal [1] at Ex. A.)
Because plaintiff and defendant are diverse and the amount in
controversy exceeds $75,000, this Court has original jurisdiction
over this case and removal is therefore permissible.
1332(a) and 1441.
Notice
of
Removal
28 U.S.C. §§
Defendant properly removed the case by filing its
within
thirty
days
of
receiving
plaintiff’s
complaint, including the necessary copies of all pleadings received
from plaintiff, and stating the reasons for removal.
Id. at §
1446(a)-(b); (Notice of Removal [1]).
Plaintiff’s objection that removal is improper because he did
not receive notice is belied by the fact that he filed two responses
asking this Court to deny removal, as well as a supporting Memorandum
of Law.
(Pl.’s Mot. #1 [5]; Pl.’s Mot. #2 [7]; and Pl.’s Mem. [8].)
In any event, plaintiff’s argument that removal is improper because
he did not approve of it is irrelevant, as removal does not require
approval of the plaintiff.
28 U.S.C. § 1441(a).
Finally, plaintiff
does not dispute that diversity jurisdiction is present in any of his
responses.
(Pl.’s Mot. #1 [5]; Pl.’s Mot. #2 [7]; and Pl.’s Mem.
[8].)
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CONCLUSION
For the above reasons, the Court DENIES plaintiff’s Motion Not
to Transfer [5] and plaintiff’s Motion Not to Allow Transfer of Civil
Action from Superior Court [7] and GRANTS defendant’s Motion to
Dismiss [2], without prejudice.
The dismissal is without prejudice
because (1) a dismissal based on a failure to properly serve a
defendant is without prejudice (FED. R. CIV. P. 4(m)) and (2) when
dismissing for failure to comply with Twombly/Iqbal standards, courts
typically allow a second chance for the plaintiff to submit a
passable complaint.
As to the latter, though, the Court encourages the plaintiff not
to take advantage of that second chance because he will likely only
be wasting another $400 in paying a second filing fee.
Indeed,
besides plaintiff’s inability to allege facts that would state a
cause of action, it is unlikely that any action against defendant
would be timely enough to proceed.2
2
Defendant’s records indicate that plaintiff was employed only
in 1999.
(Def.’s Mem. of Law in Supp. of its Mot. to Dismiss
(“Def.’s Mem.”), attached to Def.’s Mot. to Dismiss [2] at 3 n.1.)
If plaintiff’s complaint does relate to that employment, it would be
barred by any applicable statute of limitations. A Title VII claim
based on plaintiff’s alleged wrongful termination in November 2011
would likewise be barred by the 180-day limit on such claims. 42
U.S.C. § 2000e-5(e)(1); (Def.’s Mem. [2] at 3 n.1).
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SO ORDERED, this 3rd day of September, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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