Peck v. Leidos

Filing 13

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 8/1/2022. (c/m 8/2/2022 - mg3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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NANCY PECK,
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Plaintiff,
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v.

Case No.: GJH-22-92
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LEIDOS, INC.,
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Defendant.
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MEMORANDUM OPINION
In this action, Plaintiff Nancy Peck alleges that Defendant Leidos, Inc., discriminated
against her in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.
(“ADA”). ECF No. 10. Defendant has filed a Motion to Dismiss, ECF No. 11, which is
unopposed. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For the following reasons,
the Court will grant the Motion to Dismiss.
I.

BACKGROUND1
Defendant Leidos was incorporated in Delaware and has its principal place of business in

Reston, Virginia. ECF No. 10 ¶ 4.2 Leidos is a government contractor with, as relevant here, a
contract with the National Institutes of Health (“NIH”). Id. ¶ 13. Plaintiff Peck, a Rockville,
Maryland resident, was an employee at Leidos at the relevant time. Id. ¶¶ 5, 6. Peck was
employed at Leidos for five years as a UX Strategist and a Leidos Web Team Manager. Id. ¶ 6.

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Unless otherwise noted, all facts herein are taken from the Amended Complaint, ECF No. 10, and presumed true.

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Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the page numbers generated
by that system.

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Throughout her time as an employee at Leidos, Peck worked on site at the NIH. Id. ¶ 7. Peck
consistently received praise for her work. Id. ¶¶ 8, 9. Peck has been diagnosed with Bipolar
Disorder. Id. ¶ 11. Leidos was aware of the diagnosis. Id. However, upon learning of the
diagnosis, the NIH requested that Leidos remove Peck from the contract. Id. ¶ 12. Leidos put
Peck on leave. Id. ¶ 15. When Leidos allowed Peck to return to work, Peck was removed from
prior projects and responsibilities. Id. ¶¶ 16, 17.
Peck filed a pro se Complaint in Maryland state court on November 24, 2021. See ECF
No. 1 ¶ 1. In the brief Complaint, Peck alleged “employ[ment] discrimination[,]” “wrongful
dismissal[,]” “gaslighting[,]” and “pain and suffering.” ECF No. 4. Leidos removed the action to
this Court on January 13, 2022, based on diversity jurisdiction. ECF No. 1. Leidos then filed a
Motion to Dismiss, ECF No. 8, and Peck was sent a Rule 12/56 Notice.3 Peck filed the Amended
Complaint on February 2, 2022. ECF No. 10. The Amended Complaint contains one count of
disability discrimination in violation of the ADA. Leidos responded with a Motion to Dismiss.
ECF No. 11. Though she was sent a Rule 12/56 Notice on February 17, 2022, ECF No. 12, Peck
has not responded to the pending Motion.4
II.

DISCUSSION
Leidos advances two arguments in favor of dismissal of the Amended Complaint: that

Peck did not properly serve Leidos and that the Amended Complaint fails to state a claim. See
ECF No. 11-1 at 2, 6.

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Rule 12/56 Notice advises a pro se plaintiff of her rights under Federal Rule of Civil Procedure 12 and Federal
Rule of Civil Procedure 56.
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As this Court has noted before, “‘[w]hen a plaintiff fails to oppose a motion to dismiss, a district court is entitled,
as authorized, to rule on the ... motion and dismiss [the] suit on the uncontroverted bases asserted in the motion.’”
Zos v. Wells Fargo Bank, N.A., No. 16-cv-00466-GJH, 2017 WL 221787, at *2 n.5 (D. Md. Jan. 18, 2017) (quoting
Parker v. Am. Brokers Conduit, 179 F. Supp. 3d 509, 515 (D. Md. 2016) (internal quotations and citations omitted)).

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A. Service of Process
Federal Rule of Civil Procedure 12(b)(5) provides that a defendant may assert insufficient
service of process by motion as a defense to a claim for relief. “Once service has been contested,
the plaintiff bears the burden of establishing the validity of service pursuant to [Federal Rule of
Civil Procedure] Rule 4.” O’Meara v. Waters, 464 F. Supp. 2d 474, 476 (D. Md. 2006). “Even
when Defendants receive actual notice of the proceedings against them, Plaintiff still must
comply with ‘plain requirements for the means of effecting service of process.’” Davis v.
Baltimore City Cmty. Coll., No. 19-cv-2194-ADC, 2019 WL 5636362, at *3 (D. Md. Oct. 31,
2019) (quoting Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir.
1984)).
“[I]t is . . . well-settled that state law governs the sufficiency and service of process
before removal.” Eccles v. Nat’l Semiconductor Corp., 10 F. Supp. 2d 514, 519 (D. Md. 1998)
(citing Nealey v. Transportacion Maritima Mexicana, 662 F.2d 1275, 1282 (9th Cir. 1980);
McKenna v. Beezy, 130 F.R.D. 655, 656 (N.D. Ill. 1989)); see also Steverson v. HSBC Auto Fin.,
Inc., No. 10-cv-3119-DKC, 2011 WL 1103164, at *4 (D. Md. Mar. 23, 2011) (“In cases removed
to federal court, state law determines whether service of process was properly effected prior to
removal.”) (citation omitted)). This case was removed from the Circuit Court for Montgomery
County, Maryland. See ECF No. 1. Maryland Rule 2-124(d) requires that service upon a
corporation be made by “serving its resident agent, president, secretary, or treasurer[.]”
Maryland Rule 2-121(a) requires that service via mail be made by “by mailing to the person to
be served a copy of the summons, complaint, and all other papers filed with it by certified mail
requesting: ‘Restricted Delivery – show to whom, date, address of delivery.’”

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Here, Peck attempted to serve Leidos by mailing a certified copy of the state court
complaint to “Leidos” at “11951 Freedom Dr, Reston, VA 20190.” See ECF No. 11-1 at 4.5 Peck
did not comply with either Maryland Rule regarding service on a corporation. She did not serve
the resident agent, president, secretary, or treasurer of Leidos, and she did not indicate that it was
“Restricted Delivery” for a particular person to be served.
Additionally, Leidos raised the insufficiency of service in its Notice of Removal, ECF
No. 1 ¶ 2, the first Motion to Dismiss, ECF No. 8-1 at 3, and again in this Motion to Dismiss,
ECF No. 11 at 4. However, Peck has not attempted to cure the defect. See 28 U.S.C. § 1448 (“In
all cases removed from any State court to any district court of the United States in which any one
or more of the defendants has not been served with process or in which the service has not been
perfected prior to removal[,] . . . such process or service may be completed or new process issued
in the same manner as in cases originally filed in such district court.”). Nor has Peck responded
to these arguments or requested the opportunity to properly serve Leidos. See Fed. R. Civ. P.
4(m) (“If a defendant is not served within 90 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.”).
A failure to properly serve a defendant warrants dismissal under Rule 12(b)(5), despite a
plaintiff’s pro se status and despite a defendant’s “actual notice” of the suit. See Davis, 2019 WL
5636362, at *3. Accordingly, the Court will grant the Motion to Dismiss pursuant to Rule
12(b)(5).6

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Leidos also argues that this was an incorrect address, which delayed Leidos in receiving any notice of the suit. ECF
No. 11-1 at 4 n.3. Leidos eventually received notice on December 16, 2021. ECF No. 7 ¶ 1.
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Because the Amended Complaint also fails to state a claim, the Court will dismiss the action instead of ordering
Peck to serve Leidos.

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B. Failure to State a Claim
“A defendant may test the adequacy of a complaint by way of a motion to dismiss under
Rule 12(b)(6).” Maheu v. Bank of Am., N.A., No. 12-cv-508-ELH, 2012 WL 1744536, at *4 (D.
Md. May 14, 2012) (citing German v. Fox, 267 Fed. Appx. 231, 233 (4th Cir. 2008)). To
overcome a Rule 12(b)(6) motion, a complaint must allege enough facts to state a plausible claim
for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible 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 evaluating the sufficiency of Peck’s claims, the Court accepts factual allegations in the
Complaint as true and construes the factual allegations in the light most favorable to Peck.
Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd of Comm'rs of Davidson Cty., 407
F.3d 266, 268 (4th Cir. 2005). Self-represented litigants’ pleadings are “liberally construed” and
“held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (citation and internal quotation marks omitted). “However, liberal
construction does not absolve Plaintiff from pleading a plausible claim.” Bey v. Shapiro Brown
& Alt, LLP, 997 F. Supp. 2d 310, 314 (D. Md. Feb. 20, 2014). Additionally, as relevant here, a
defendant may move for dismissal if a plaintiff fails to comply with administrative exhaustion
requirements. See Lorenzo v. Rumsfeld, 456 F. Supp. 2d 731, 732 (E.D. Va. 2006), aff’d sub
nom. Lorenzo v. Gates, 225 F. App’x 165 (4th Cir. 2007) (citations omitted)); see also Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132, 71 L. Ed. 2d 234 (1982).
In the Amended Complaint, Peck alleges one count of disability discrimination under the
ADA. ECF No. 10. Peck specifies that she brings her claim under “Title II of the [ADA].” Id. ¶

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2. However, Title II of the ADA specifically applies to public entities: “any State or local
government” or “any department, agency, . . . or other instrumentality of a State[.]”
42 U.S.C. § 12131. Leidos is not a state or local government, and thus Title II does not apply.
See generally Magness v. Harford Cnty., No. 16-cv-2970-ELH, 2018 WL 1505792, at *9 (D.
Md. Mar. 27, 2018) (explaining the distinction between Title I and Title II of the ADA).
Additionally, even if Peck brought her claim under Title I, which applies to covered
employers, 42 U.S.C. § 12112, the Amended Complaint would still fail. Title I of the ADA is
“modeled after Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., [and]
incorporates that statute’s enforcement procedures, id. § 12117(a)[.]” Sydnor v. Fairfax Cnty.,
Va., 681 F.3d 591, 593 (4th Cir. 2012). Thus, Title I requires that a plaintiff “exhaust [her]
administrative remedies by filing a charge with the EEOC before pursuing a suit in federal
court[.]” Id. (citing § 2000e-5(b), (f)). “The exhaustion requirement ensures that the employer is
put on notice of the alleged violations so that the matter can be resolved out of court if possible.”
Miles v. Dell, Inc., 429 F.3d 480, 491 (4th Cir. 2005). “Under the exhaustion requirement, a
plaintiff must file a ‘charge’ of discrimination with the EEOC or, in a ‘deferral’ jurisdiction, with
an appropriate state or local agency, within a specified time ‘after the alleged unlawful
employment practice occurred.’” Johnson v. Baltimore City Police Dep’t, No. 12-cv-2519-ELH,
2014 WL 1281602, at *8 (D. Md. Mar. 27, 2014) (quoting 42 U.S.C. § 2000e-5(e)(1)).
Leidos argues that Peck “has not filed a charge of discrimination with the EEOC or a
local fair employment practices agency[.]” ECF No. 11-1 at 6 n.4. Peck makes no reference to
filing an EEOC charge or a charge with the appropriate state agency in the Amended Complaint,
nor provides any evidence of filing such a charge. A plaintiff’s failure to exhaust administrative
remedies before pursuing an action in federal court requires the dismissal of the suit. See

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Lorenzo, 456 F. Supp. 2d at 734 (internal quotations and citations omitted). The Amended
Complaint must be dismissed for this reason as well.7
III.

CONCLUSION
For the reasons discussed, the Motion to Dismiss is GRANTED. The Clerk will be

directed to close this case. A separate Order follows.

Dated: August 1, 2022

/s/
GEORGE J. HAZEL
United States District Judge

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In Peck’s original state court Complaint, Peck alleged that she “has filed an EEO claim with Leidos.” ECF No. 4 at
1. However, the Amended Complaint has no mention of an EEOC charge, and Leidos states it has received no notice
of a charge filed with either the EEOC or the appropriate Maryland state authority. See ECF No. 11-1 at 2. Peck
otherwise provided no evidence that she filed a charge.

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