Thomas v. New Leaders for New School
Filing
11
ORDER AND REASONS that Thomas shall properly serve New Leaders with the complaint and summons in this matter, or obtain a waiver of service, no later than Monday, 1/19/2012, at 5:00 p.m. If Thomas fails to serve New Leaders by that deadline, the matter shall be DISMISSED WITH PREJUDICE. Signed by Judge Lance M Africk on 12/15/2011. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
C.C. THOMAS
CIVIL ACTION
VERSUS
No. 11-1808
NEW LEADERS FOR NEW SCHOOLS
SECTION “I”
ORDER AND REASONS
Before the Court is a motion1 to dismiss pursuant to Rule 12(b)(5) or, in the alternative,
Rule 12(b)(6), of the Federal Rules of Civil Procedure filed by defendant, New Leaders, Inc.
(“New Leaders” or “the organization”). Pro se plaintiff, C.C. Thomas (“Thomas”), has not filed
an opposition.2 For the following reasons, the Rule 12(b)(5) motion to dismiss for insufficient
service of process will be granted unless Thomas serves New Leaders with process, or obtains a
waiver of service, no later than Monday, January 19, 2012, at 5:00 p.m.
BACKGROUND
Thomas filed her complaint in the above-captioned matter on July 25, 2011. Thomas’s
allegations, in their entirety, are that:
A – Due to [her] age, [she] was denied positions with [her] employer by [her]
employer’s contractor.
B – The contractor choose [sic] to assist persons of younger ages without
providing assistance or the opportunity of assistance to [her].
C – This age discrimination is in violation of the Age Discrimination in
Employment Act of 1967.3
1
R. Doc. No. 10.
Thomas moved from New Orleans, Louisiana, to Florida after filing her complaint. R. Doc. No. 3. Thomas has
only provided the Court with a mailing address at a post office box in Miami, Florida. On October 21, 2011, the
Court sent by certified mail a copy of an order directing Thomas to provide the Court with a telephone number
where she could be reached. Case No. 11-1807, R. Doc. No. 11. As of the date of this order, Thomas has not
contacted the Court.
3
R. Doc. No. 1, p. 4.
2
Thomas requests that the Court “determine the action in [her] favor and grant [her] benefits as
[she] would have received had this age discrimination not occurred.”4 Thomas provides no other
information regarding her claims and, accordingly, the Court relies on New Leaders’s statement
of the facts applicable to this matter to provide context for Thomas’s claims.
New Leaders is a private, national, non-profit corporation that operates a fellowship
training program in twelve locations in the United States, including in New Orleans, Louisiana.5
The organization’s “Aspiring Principals Program” is devoted to training and supporting school
leaders in order to improve “urban public school education and close the student achievement
gap.”6 New Leaders provides program participants with five weeks of intensive training,
followed by a year-long residency wherein participants receive additional training while they
concurrently work in leadership positions in their respective schools.7 New Leaders does not
employ program participants; rather, the respective schools or school districts employ the
participants.8 According to New Leaders, Thomas submitted two applications for consideration
to be a participant in the Aspiring Principals Program between February and March 2008.9 Both
applications were allegedly denied because she failed to meet New Leaders’s qualification
requirements.10
4
R. Doc. No. 1, p. 4.
R. Doc. No. 10-1, p. 1. New Leaders fails to affirmatively state that it is a 501(c)(3) non-profit corporation.
However, because the organization is registered as a non-profit corporation with the Louisiana Secretary of State,
the Court will take judicial notice of this fact. Fed. R. Evid. 201(c); Norris v. Hearst Trust, 500 F.3d 454, 461 n.9
(5th Cir. 2007) (“[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public
record.”) (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994)).
6
R. Doc. No. 10-1, pp. 1-2.
7
R. Doc. No. 10-1, p. 2.
8
R. Doc. No. 10-1, p. 2.
9
R. Doc. No. 10-1, p. 3.
10
R. Doc. No. 10-1, p. 3.
2
5
New Leaders filed its motion to dismiss pursuant to Rule 12(b)(5) for insufficient service
of process “because no U.S. Marshal ever properly served New Leaders under Federal Rule of
Civil Procedure 4.”11 In the alternative, New Leaders argues that the Court should dismiss this
matter as Thomas’s claims under the Age Discrimination in Employment Act (“ADEA”) fail as a
matter of law under Rule 12(b)(6) because New Leaders was never Thomas’s “employer” within
the meaning of that term as it is defined in the ADEA.12 New Leaders further asserts that even if
Thomas had an actionable claim under the ADEA, she has not met Rule 12(b)(6)’s pleading
standard because she has failed to set forth her claims with sufficient particularity.13
LAW
I. Rule 12(b)(5)
“Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim if service of
process was not timely made in accordance with Federal Rule of Civil Procedure 4 or was not
properly served in the appropriate manner.” Wallace v. St. Charles Parish Sch. Bd., 2005 WL
1155770, at *1 (E.D. La. May 5, 2005). “In the absence of valid service of process, proceedings
against a party are void.” Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, 635 F.2d
434, 435 (5th Cir. 1981). “When service of process is challenged, the party on whose behalf it is
made must bear the burden of establishing its validity.” Id. “If a defendant is not served within
120 days after the complaint is filed, the court . . . 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).
11
R. Doc. No. 10-1, p. 2.
R. Doc. No. 10-1, p. 2.
13
R. Doc. No. 10-1, pp. 2-3.
12
3
II. Rule 12(b)(6)
Pursuant to Fed. R. Civ. P. 12(b)(6), a district court may dismiss a complaint, or any part
of it, for failure to state a claim upon which relief can be granted if the plaintiff has not set forth a
factual allegation in support of his claim that would entitle him to relief. Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). As the
Fifth Circuit explained in Gonzalez v. Kay:
“Factual allegations must be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). The Supreme Court recently expounded upon the Twombly
standard, explaining that “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955, 167
L.Ed.2d 929). “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.” Id. It follows that “where the well-pleaded
facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the pleader
is entitled to relief. ” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
577 F.3d 600, 603 (5th Cir. 2009).
This Court will not look beyond the factual allegations in the pleadings to determine
whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing the complaint, a court must
accept all well-pleaded facts as true and liberally construe all factual allegations in the light most
favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A & M Univ. Sys., 117 F.3d
242, 247 (5th Cir. 1997). “Dismissal is appropriate when the complaint ‘on its face show[s] a
bar to relief.’ ” Cutrer v. McMillan, 308 Fed. App’x. 819, 820 (5th Cir. 2009) (quoting Clark v.
Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
4
ANALYSIS
This Court granted Thomas’s motion to proceed in forma pauperis on July 27, 2011.14
Accordingly, the U.S. Clerk of Court for the Eastern District of Louisiana directed the U.S.
Marshal to serve New Leaders with Thomas’s complaint and a copy of the summons. Fed. R.
Civ. P. 4(c)(3); Lindsey v. U.S. R.R. Retirement Bd., 101 F.3d 444, 446 (5th Cir. 1996) (“Once
the in forma pauperis plaintiff has taken reasonable steps to identity the defendant(s), ‘Rule
4(c)(2) [now (c)(3)] and 28 U.S.C. § 1915(c) stand for the proposition that . . . the court is
obligated to issue plaintiff’s process to a United States Marshal who must in turn effectuate
service upon the defendants . . . .’ ”) (citation omitted, ellipses in original, brackets added).15
The summons in this matter was issued on July 28, 2011, and was returned as executed on
October 11, 2011.16 The U.S. Marshal indicated that a “New Leaders Rep” received service of
process.17
“The general rule is that ‘[a] signed return of service constitutes prima facie evidence of
valid service, which can be overcome only by strong and convincing evidence.’ ” People’s
United Equip. Fin. Corp. v. Hartmann, 2011 WL 3476610, at *1 (5th Cir. 2011) (citations
omitted). However, New Leaders has provided an affidavit18 swearing that the alleged “New
Leaders Rep” that the U.S. Marshal served is a former program participant who has never been
an employee, officer, or other representative of the organization and, consequently, could not
14
R. Doc. No. 3.
Fed. R. Civ. P. 4(c)(3) states: “[a]t the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the
plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. §1915 or as a seaman under 28 U.S.C. §1916.”
16
R. Doc. No. 7.
17
R. Doc. No. 7, p. 1.
18
New Leaders submits the testimony of Deborah Evasta Ward, who was serving as the organization’s Greater New
Orleans interim executive director when the U.S. Marshal attempted to serve New Leaders with Thomas’s complaint
and summons. R. Doc. No. 10-4, p. 29.
5
15
receive service of process on behalf of the organization.19 The Court may consider such
affidavits when resolving a Rule 12(b)(5) challenge without converting the motion into a motion
for summary judgment. See, e.g., Blair v. City of Worcester, 522 F.3d 105, 112 (1st Cir. 2008);
Williams v. Waffle House, 2010 WL 3418257, at *1 (M.D. La. Aug. 26, 2010) (Brady, J.); Hahn
v. Bauer, 2010 WL 396228, at *5 (D. Minn. Jan. 27, 2010) (Ericksen, J.).
Rule 4(h)(1)(B) of the Federal Rules of Civil Procedure states that a corporation may be
served “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[.]” Likewise, Rule 4(e)(1) allows service to be made pursuant to state law and the
Louisiana Code of Civil Procedure provides that a corporation is served “by personal service on
any one of its agents for service of process.” La. Code Civ. Proc. art. 1261(A). Price v. Housing
Authority of New Orleans, 2010 WL 3802553, at *2 (E.D. La. Sept. 20, 2010) (Vance, J.).
Until June 30, 2011, New Leaders maintained its local offices at 200 Broadway Street,
Suite 108, New Orleans, Louisiana.20 The organization continues to receive mail at that address.
Thomas listed 200 Broadway Street as the organization’s address when she filed her complaint
on July 27, 2011, and, consequently, the U.S. Clerk of Court directed the U.S. Marshal Service to
serve New Leaders at that location. On October 7, 2011, a U.S. Marshal attempted service on
New Leaders at 200 Broadway Street.21 The summons did not specify any agent or named
representative for service of process.22 The individual upon whom the U.S. Marshal attempted
service had no personal information with respect to the organization’s appropriate agent and
19
R. Doc. No. 10-1, pp. 5-9.
R. Doc. No. 10-4, p. 1.
21
R. Doc. No. 10-4, p. 30.
22
R. Doc. No. 10-4, p. 30.
20
6
refused to accept service.23 Staff members of other organizations located at 200 Broadway Street
informed New Leaders that a U.S. Marshal had attempted service, but were unable to provide the
identity of the person who had refused to accept service.24 The U.S. Marshal eventually served
“Aqua Stovall [(“Stovall”)], New Leaders Rep” at “2011 Bienville Avenue, New Orleans, LA.”25
In the evening of that same day, Stovall contacted Deborah Ward (“Ward”), the
organization’s interim executive director. Stovall informed Ward that a U.S. Marshal, with
whom Stovall had a personal relationship, had delivered a “package” to her that was intended for
the organization.26 Stovall gave this “package” – a copy of Thomas’s complaint and summons –
to Ward.
According to Ward, Stovall participated in New Leaders’s Aspiring Principals Program
from 2007 to 2008, but she is not and has never been an employee, officer, or other
representative of the organization.27 She also has never been appointed to be New Leaders’s
registered agent for service of process.28 Based on these uncontroverted facts, the Court
concludes that the organization has not been sufficiently served. While the U.S. Marshal
reported on the returned summons he had served a “New Leaders Rep,”29 New Leaders has
produced evidence to the contrary because Stovall has no affiliation with the organization that
would permit her to accept service of process on its behalf.
Though New Leaders asks that this Court dismiss Thomas’s claims due to insufficient
service of process, the Fifth Circuit has stated that “ ‘a plaintiff proceeding in forma pauperis is
23
R. Doc. No. 10-4, p. 30.
R. Doc. No. 10-4, p. 30.
25
R. Doc. No. 7.
26
R. Doc. No. 10-4, p. 31.
27
R. Doc. No. 10-4, p. 31.
28
R. Doc. No. 10-4, p. 31.
29
R. Doc. No. 7, p. 1.
24
7
entitled to rely on service by the U.S. Marshals and should not be penalized for failure of the
Marshal’s Service to properly effect service of process, where such failure is through no fault of
the litigant.’ ” Lindsey, 101 F.3d at 447 (quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th
Cir. 1987)). At the same time, “ ‘a plaintiff may not remain silent and do nothing to effectuate
such service. At a minimum, a plaintiff should request service upon the appropriate defendant
and attempt to remedy any apparent service defects of which a plaintiff has knowledge.’ ” Id.
Thomas informed the U.S. Clerk of Court that New Leaders’s address was 200 Broadway Street
and New Leaders admits that it maintained its local offices at that location until June 30, 2011.30
Thomas had no way of knowing that New Leaders had not been properly served until the
organization filed the instant motion.
The Court has the power to construe a motion to dismiss pursuant to Rule 12(b)(5) as a
motion to quash service. Hayward v. Douglas, 2010 WL 128320, at *2 (M.D. La. Jan. 12, 2010)
(Polozola, J.); U.S. Fire Ins. Co. v. Miller, 2002 WL 31886812, at *2 (E.D. La. Dec. 18, 2002)
(Vance, J.); Grant-Brooks v. Nationscredit Home Equity Serv., 2002 WL 424566, at *4 (N.D.
Tex. Mar. 15, 2002) (Buchmeyer, J.); Amous v. Trustmark National Bank, 195 F.R.D. 607, 610
(N.D. Miss. 2000) (Davidson, J.). Where there is “a reasonable prospect that plaintiff ultimately
will be able to serve defendant properly,” the proper course of action is to quash service and
permit a plaintiff another opportunity to complete service rather than dismiss the case. Charles
Alan Wright & Arthur R. Miller, 5B Federal Practice and Procedure § 1354 (3d ed. 2004).
According to the Louisiana Secretary of State, New Leaders’s registered agent in the State of
Louisiana is Ashley Belleau at 1100 Poydras Street, Suite 3300, New Orleans, Louisiana
30
R. Doc. No. 10-4, p. 1.
8
70163.31 Given the information provided in the signature caption of the organization’s instant
motion, the Court observes that a lawyer by that name and at that address filed the motion.
Consequently, the Court concludes that there is a reasonable possibility that Thomas will be able
to properly serve New Leaders. Accordingly, the Court will quash service and provide Thomas
thirty days within which to re-serve New Leaders. Because the organization is not yet a proper
party to this proceeding, the Court does not reach New Leaders’s arguments with respect to Rule
12(b)(6).
CONCLUSION
IT IS ORDERED that Thomas shall properly serve New Leaders with the complaint and
summons in this matter, or obtain a waiver of service, no later than Monday, January 19, 2012,
at 5:00 p.m. If Thomas fails to serve New Leaders by that deadline, the above-captioned matter
shall be DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, December 15, 2011.
__________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
31
The Court also takes judicial notice of this fact. See supra n.5.
9
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