Qiu v. Scott County Schools

Filing 34

MEMORANDUM OPINION & ORDER: 1) Dft's 8 MOTION to Dismiss is DENIED WITHOUT PREJUDICE to the extent it claims the summons and service were deficient and DENIED AS MOOT to the extent it claims the wrong dft was named; 2) Pla's [15 ] MOTION for Summary Judgment is DENIED WITGHOUT PREJUDICE; 3) Pla's 32 MOTION to Amend 1 Complaint is GRANTED and the Pla is ORDERED to file a complete amended complaint into the record w/in 10 days following the entry of this Order; 4) Court GRANTS the Pla 30 days following the entry of this Order to file an amended summons and effectuate service of process. Signed by Judge Gregory F. VanTatenhove on 05/09/2022. (MDC) cc: COR and Wei Qiu by US Mail

Case: 5:21-cv-00197-GFVT Doc #: 34 Filed: 05/09/22 Page: 1 of 7 - Page ID#: 209

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
WEI QIU,
Plaintiff,
V.
SCOTT COUNTY SCHOOLS, also known
as Great Crossing High School,
Defendant.

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Civil No. 5:21-cv-00197-GFVT
MEMORANDUM OPINION
&
ORDER

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This matter is before the Court on multiple pending motions. Proceeding pro se, Ms. Qiu
brought this action alleging Scott County violated Title VII by discriminating against her on the
basis of her race, color, and national origin. [R. 1.] She claims she was not hired for a chemistry
teacher position because of her Chinese accent. Id. at 5. In turn, the Court will resolve the
pending (1) Motion to Dismiss, (2) Motion for Summary Judgment, and (3) Motion to Amend. 1
[R. 8; R. 15; R. 32.]
I
Ms. Qiu applied for two chemistry teacher positions with Great Crossing High School
around July 2020. [R. 1 at 5.] At the time, she had two and a half years of experience and was a
“Kentucky licensed chemistry teacher.” Id. She claims she was “well qualified” for the
positions. Id. Ms. Qiu does not provide details about the first position she applied for but
explains that she was “excluded” from the second after the principal called to ask about her

This case is very similar to another filed by the Plaintiff in this Court against a second Kentucky public high
school, also for employment discrimination. Qiu v. Anderson Cnty. High School et al., 3:21-cv-00027-GFVT. That
case presents nearly the same issues as are present here. For consistency, the Court’s Orders in each case will share
some analysis and conclusions.
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resume and heard her accent. Id. She alleges this constitutes national origin and race
discrimination in violation of Title VII. Id. Ms. Qiu filed a complaint with the EEOC on
December 31, 2020 and received a Right to Sue letter on May 28, 2021. Id. at 6. She filed this
complaint on July 15, requesting relief in the form of wages, medical insurance, dental and visual
insurance, and retirement funds. Id. at 7.
II
The Court recognizes that it is to liberally construe Ms. Qiu’s pleadings because she is
proceeding pro se. See Luis v. Zang, 833 F.3d 619, 626 (6th Cir. 2016). This approach is
balanced by the fact that the Plaintiff is still bound by the Federal Rules of Civil Procedure and
this District’s Local Rules. See Martinez v. Litteral, 2020 U.S. Dist. LEXIS 142289, at *2 (E.D.
Ky. May 13, 2020) (citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)). Ms. Qiu is aware
that she is subject to these rules. [R. 4.] The Court will address each of the pending motions
within that framework.
A
The first pending motion is Scott County’s Motion to Dismiss. They ask the Court to
dismiss the action because (1) the named Defendant is not a sui juris entity, (2) the summons was
deficient for not identifying an individual who can receive service for a defendant, and (3)
service was not effectuated because there is no proof that process was served on an individual
able to receive it. [R. 8 at 2-4.] In response, Ms. Qiu filed a “Motion to Dismiss the Motion to
Dismiss,” pointing out “lies” and “exclusions” of the Defendant. [R. 9 at 1-16.] She also claims
Title VII applies to school districts, allowing them to be sued, and includes other cases listing a
school district as a defendant. Id. at 17-22. Further, she states the summons is sufficient because
the defendants she listed are “short forms” for the Board of Education but asks for permission to

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amend it. Id. at 23. By prior Order, the Court construed this “Motion” as a response to the
Motion to Dismiss. [R. 31 at 2]
1
Scott County first bases its Motion to Dismiss on the Plaintiff’s failure to name the
correct defendant. [R. 8 at 2-3.] The Kentucky Supreme Court has definitively held the proper
defendant for an action against a Kentucky public school is the governing Board of Education.
Forte v. Nelson Cnty. Bd. of Educ., 337 S.W.3d 617, 625 (Ky. 2011). This ground for dismissal
is resolved by the Plaintiff’s Motion to Amend her Complaint to name the Scott County Board of
Education as the Defendant. [R. 32.] Scott County does not object to amendment. [R. 33.]
The Court can grant leave to amend pursuant to Federal Rule of Civil Procedure 15(a)(2)
and should do so “freely” “when justice so requires.” Amendments are especially encouraged in
pro se proceedings, “particularly where deficiencies in a complaint are ‘attributable to oversights
likely the result of an untutored pro se litigant’s ignorance of special pleading requirements.’”
Brown v. Matauszak, 415 Fed. App’x 608, 614 (6th Cir. 2011) (quoting Reynoldson v. Shillinger,
907 F.2d 124, 126 (10th Cir. 1990)). The Court is required to “allow ample opportunity for
amending the complaint when it appears that the pro se litigant would be able to state a
meritorious claim.” McCallum v. Gilless, 38 Fed. App’x 213, 216 (6th Cir. 2002) (citations
omitted). A “meritorious” claim is not necessarily a “winner,” it need only be “non-frivolous.”
Brown, 415 Fed. App’x at 614. Ms. Qiu alleges that she was denied employment with Scott
County due to her race, color, and national origin after the interviewer heard her Chinese accent.
[R. 1 at 4-6.] This could constitute employment discrimination, so Ms. Qiu’s claim is
meritorious. Accordingly, and the parties being in agreement, the Court will grant Ms. Qiu’s
motion to amend the named defendant to the Scott County Board of Education. [R. 32.] Ms.

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Qiu did not file a complete version of her amended complaint, so the Court grants her ten days
following the entry of this Order to file a complete amended complaint. [See R. 32-1.]
Accordingly, Scott County’s Motion to Dismiss is denied as moot to the extent it claims the
wrong defendant was named.
2
Scott County’s latter arguments for dismissal challenge the sufficiency of the summons
and service. It argues the summons issued in this matter was deficient because it was only
addressed to “Scott County Schools,” not an individual who can receive process. Id. at 3. It
cites Rule 4(j)(2), which states a government organization can be served in the manner allowed
by state law, and Kentucky Rule of Civil Procedure 4.04(7), which states a “public board” is
served by serving a member of the board. Therefore, it claims the summons was deficient for
naming “Scott County Schools” and not an individual who could receive service for the
organization. [R. 8 at 3-4.]
This argument is not in accord with the text of Rule 4(a)(1), which states that a summons
must contain the name of the court and the parties and “be directed to the defendant.” Fed. R.
Civ. P. 4(a)(1). “The defendant” does not necessitate the summons be directed to someone who
can be served on behalf of an organization. Rather, the summons must only be directed to the
defendant organization itself, then be served on someone authorized to receive service. The
summons was not deficient because it did not name an individual; rather, it was deficient because
it named “Scott County Schools” as the Defendant. As explained above, a Kentucky public
school’s governing Board of Education is a necessary party to a lawsuit against the school.
Forte, 337 S.W.3d at 625. The summons should have been directed to the Scott County Board
of Education. Because Rule 4(a)(2) allows the Court to “permit a summons to be amended,” the

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Court will grant Ms. Qiu thirty days to file an amended summons naming the correct defendant. 2
Fed. R. Civ. P. 4(a)(2).
Scott County is correct that the summons was not properly served. They claim Ms. Qiu’s
proof of service does not identify an individual on whom she accomplished service. [R. 8 at 4.]
Rather, it indicates she “sent the summons and complaint to Scott County Schools . . . by
certified mail.” [R. 7 at 2.] She attaches the certified mail receipt and tracking information. Id.
at 3-5. Certified mail is not a proper method of effectuating service on a state government
organization, so the attempted service was inadequate. Fed. R. Civ. P. 4(j)(2); Ky. R. Civ. P.
4.04(7).
Rule 4(m) states service must be effectuated within ninety days after the complaint is
filed but allows the court to order service be made in a specified time if the defendant is not
served in that timeframe. The Sixth Circuit prefers courts to allow a second attempt to properly
serve the defendant, rather than dismiss the case for improper service. Stern v. Beer, 200 F.2d
794, 795 (6th Cir. 1952) (“if the first service of process is ineffective, a motion to dismiss should
not be granted, but the case should be retained for proper service later.”) The Court further notes
that Ms. Qiu attempted to ensure that the entity she reasonably believed was the correct
defendant received the summons by using certified mail and tracking the package to confirm it
was delivered. Accordingly, pursuant to Rule 4(m) and Circuit preference, the Court will grant
Ms. Qiu another thirty days to properly effectuate service under Rule 4(j).

Courts in this District have regularly allowed pro se plaintiffs an opportunity to correct their summons and
properly effectuate service. See Howard v. Hopp, 21-cv-11247, 2022 U.S. Dist. LEXIS 69178, at *17 (E.D. Mich.
Apr. 14, 2022); Finley v. Blue Cross Blue Shield, 1:20-cv-00215-DCLC-SKL, 2021 U.S. Dist. LEXIS 24924, at *3
(E.D. Tenn. Feb. 19, 2021); Craig v. Dep’t of Children’s Servs., 2:17-cv-02522-SHM-cgc, 2018 U.S. Dist. LEXIS
191578, at *8 (W.D. Tenn. Nov. 8, 2018); Carter v. United States, 1:17-cv-248, 2017 U.S. Dist. LEXIS 154381, at
*4 (S.D. Ohio Sept. 21, 2017). This reflects the general preference not to dismiss pro se actions for procedural
violations committed by non-professional advocates. See Brown, 415 Fed. App’x at 614-15.
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B
Ms. Qiu also filed a motion for summary judgment. [R. 15.] Technically, summary
judgment is available “any time until 30 days after the close of all discovery,” but it usually does
not occur while a motion to dismiss is pending and the defendant has not answered the
complaint, as is the case here. Summary judgment is also inappropriate when the parties have
not had adequate time to engage in discovery. Maki v. Laakko, 88 F.3d 361, 367 (6th Cir. 1996)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)); White’s Landing Fisheries v.
Buchholzer, 29 F.3d 229, 231 (6th Cir. 1994).
Ms. Qiu claims she is entitled to summary judgment because Scott County’s Motion to
Dismiss does not dispute the facts raised in her complaint. [R. 15 at 1.] This is true, but only
because it has not yet filed its answer to the complaint—which would presumably dispute many
of its operative factual allegations—because there is a pending motion to dismiss. Rule 12(a)(4)
allows a defendant to wait until its motion to dismiss has been resolved before filing their
answer. Fed. R. Civ. P. 12(a)(4). Scott County has not yet had the opportunity to dispute the
facts in the complaint or conduct discovery on those claims, so summary judgment is
inappropriate. Ms. Qiu’s single statement that Scott County has not disputed her facts is
insufficient to establish that there is no genuine issue of material fact. Carver v. Bunch, 946 F.2d
451, 455 (6th Cir. 1991). Further, she presents no legal argument as to why she is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). Her motion for summary judgment will be
denied without prejudice, so she is free to re-file the motion when summary judgment is
appropriate.

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III
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as
follows:
1. The Defendant’s Motion to Dismiss [R. 8] is DENIED WITHOUT PREJUDICE to the
extent it claims the summons and service were deficient and DENIED AS MOOT to the
extent it claims the wrong defendant was named;
2. The Plaintiff’s Motion for Summary Judgment [R. 15] is DENIED WITHOUT
PREJUDICE;
3. The Plaintiff’s Motion to Amend [R. 32] is GRANTED and the Plaintiff is ORDERED
to file a complete amended complaint into the record within ten (10) days following the
entry of this Order;
4. Once the complete amended complaint is filed, the Clerk is DIRECTED to file the
amended complaint into the record;
5. The Court GRANTS the Plaintiff thirty (30) days following the entry of this Order to
file an amended summons and effectuate service of process.

This the 9th day of May, 2022.

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