MALLORY v. VERIZON et al

Filing 29

OPINION. Signed by Judge Kevin McNulty on 1/29/15. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CORNELL G. MALLORY

Civ. No. 2: 12cv-O2366
(KM)(MAH)

Plaintiff,
OPINION

V.

VERIZON et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:

This matter comes before the Court on the motion of Defendants
Verizon, Keith Downey, Chris Lundgren, Richard Silver, and Jerry
Vlasak’ (collectively “Verizon Defendants”) (ECF No. 24) to dismiss the
complaint (ECF No. 1) of Plaintiff Cornell G. Mallory (“Mallory”) pursuant
to Fed. R. Civ. P. 12(b)(6), 12(b)(5), and 12(b)(2). I decide the motion
without oral argument. See Fed. R. Civ. P. 78. For the reasons set forth
below, the motion to dismiss is granted and the complaint is dismissed
without prejudice.
I.

BACKGROUND

Mallory brings this complaint for employment discrimination
pursuant to Title VII of the Civil Rights Act of 1964. (Compl., ECF No. 1).
Mallory was at one point employed by Verizon. His complaint contains a
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single substantive factual allegation: “Verizon has a supervisor there

The defendants named as “Jerry Vlasic” and “Verizon” are properly
identified as Jerry Vlasak and Verizon New Jersey Inc.
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A representative of Verizon has stated that Mallory is now working for
Verizon again. I do not take that circumstance, if true, into account for
purposes of this motion.
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named Chris Lundgren who is a racist and has suspended me over and
over until he finally dismissed me.” (Id. ¶9). Mallory has checked the box
in the form complaint indicating that the claim of discrimination is based
on “Race.” (Id.

¶ 10).

No allegations at all are set forth against anyone

other than Lundgren.
Attached to the complaint is a Dismissal and Notice of Rights from
the U.S. Equal Employment Opportunity Commission, which states that
the agency was “unable to conclude that the information obtained
established violations of the statutes.” (ECF No. 1-1).
Mallory first attempted to serve the complaint on November 15,
2012. (ECF No. 9). On that date, United States Marshals delivered a copy
of the summons and complaint to Cyril Bernard. (ECF No. 9). The
Verizon Defendants assert that Cyril Bernard is a “plant cleaner” who
acts as a mail clerk for Verizon and is not an “officer” of Verizon or
authorized to receive service of process for Verizon or its employees. (Def.
Mot. 3, ECF No. 24-1). The Verizon Defendants contend that because
Verizon’s Legal Department never received the summons and complaint,
Verizon only became aware of the lawsuit on May 22, 2013, when they
received an order from this Court indicating that their time to answer the
complaint had expired. (Id.).
On May 17, 2013, the clerk entered a default as to all Verizon
Defendants for failure to plead or otherwise respond to the complaint.
(ECF No. 11). The same day, Mallory moved for default judgment. (ECF
No. 12). On June 3, 2013, the Verizon Defendants submitted an
opposition to Mallory’s motion and cross-moved to set aside the default.
(ECF No. 14).
Then, on June 5, 2013, Mallory attempted to serve process a
second time. (ECF No. 19). On that date, United States Marshals
delivered documents to Loretta Oneill, who is listed as an “executive

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assistant.” (Id.). The Verizon Defendants have offered proof that this
second attempt at serving process was also improper, as it did not
contain the complaint itself. (Letter, ECF No. 20). The Verizon
Defendants contend that to this day, Mallory has not properly served any
of them. (Def. Mat. 14).
On December 23, 2013, I denied Mallory’s motion for default
judgment and granted the Verizon Defendants’ motion to set aside the
default. (Mem. Op. & Order, ECF No. 21).
On January 21, 2014, the Verizon Defendants moved to dismiss
the complaint pursuant to Fed. R. Civ. P. 12(b)(6), 12(b)(5), and 12(b)(2).
II.

DISCUSSION
Because Mallory has not demonstrated sufficient service of

process, has not established personal jurisdiction over the Defendants,
and has failed to state a claim upon which relief can be granted, his
complaint will be dismissed without prejudice pursuant to Fed. R. Civ. P.
12(b)(2), 12(b)(5) and 12(b)(6).
a. Insufficient service of process
Fed. R. Civ. P. 12(b)(5) allows for dismissal when service of process
is insufficient. “[T]he party asserting the validity of service bears the
burden of proof on that issue.” Grand Entm’t Grp., Ltd. v. Star Media
Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993) (citing 4A Charles A. Wright
and Arthur R. Miller, Federal Practice and Procedure

§ 1083 (1987)); see

Coulter v. U.S. Dep’t of Homeland Sec., No. CIV.A.07-4894JAG, 2009 WL
3068395, at *4 (D.N.J. Sept. 23, 2009) (“When a party moves to dismiss
under Rule 12(b)(5), the party making the service has the burden of
demonstrating its validity.” (internal quotations and citations omitted)).
Fed. R. Civ. P. 4(m) addresses the time limit for service of process:
If a defendant is not served within 120 days after the
complaint is filed, the court—on motion or on its own after
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notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
The Verizon Defendants have submitted evidence that Mallory’s
first attempted service on Cyril Bernard was improper. (See Mem. Op. &
Order 3—4 (citing such evidence)). Indeed, this was partly the reason for
my denying default judgment to Mallory and granting the Verizon
Defendants’ motion to set aside their default. (Id. at 4). To this day,
Mallory has not offered any proof that Bernard was an authorized agent
or that service was properly made on the Verizon Defendants. (See id.).
Rather, Mallory attempted service once again on June 5, 2013, over 400
days after his Complaint was filed. (ECF No. 19). This attempted service
was made without leave of the Court.
The Verizon Defendants have offered proof that this second
attempt at serving process was also improper. (Letter, ECF No. 20).
Specifically, the Verizon Defendants have provided this Court with the
documents contained in Mallory’s second attempted service. (Letter, Ex.
B). The documents are: (1) four copies of this Court’s May 15, 2013
Letter Order (ECF No. 10); (2) four copies of Mallory’s Notice of Motion
dated May 17, 2013 (ECF No. 12); (3) four copies of Mallory’s Affidavit in
Support of Motion dated May 17, 2013 (ECF No. 12-1); and (4) three
copies of the Alias Summons issued October 17, 2012 (ECF No. 6).
(Letter 1—2, Ex. B). The Complaint was not one of the documents.
Mallory has not offered any argument, much less any proof, that
either attempt to serve process was valid. His opposition to the Verizon
Defendants’ motion simply asks that I “continue this case” because he
and his wife “have gone through numerous hardships because of what
Verizon and its managers have done.” (P1. Opp. 1, ECF No. 27). Pro se
litigants must be afforded some degree of leniency, but I cannot simply

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dispense with the requirement of service of process. Thus, I must dismiss
his complaint pursuant to Fed. R. Civ. P. l2(b)(5).
b. Lack of personal jurisdiction
Relatedly, Mallory’s complaint must be dismissed pursuant to Fed.
R. Civ. P. 12(b)(2) because he has not obtained personal jurisdiction over
the Verizon Defendants.
“Before a federal court may exercise personal jurisdiction over a
defendant, the procedural requirement of service of summons must be
satisfied.” Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104
(1987). Once a defendant files a motion to dismiss for lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), the
plaintiff bears the burden of establishing sufficient facts to show that
jurisdiction exists. Marten v. Godwin, 499 F.3d 290, 295—96 (3d Cir.
2001).
Because Mallory has not made any showing of proper service of
process, this Court also lacks personal jurisdiction over the Verizon
Defendants. Alternatively, then, I must dismiss this complaint pursuant
to Fed. R. Civ. P. 12(b)(2).
c. Failure to state a claim
It would ordinarily be the Court’s inclination to work out a
cooperative procedure to effect service of process. Such efforts would be
futile, however, because this complaint patently fails to state a claim
upon which relief can be granted and, even if properly served, is subject
to immediate dismissal.
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or
in part, if it fails to state a claim upon which relief can be granted. The
defendant, as the moving party, bears the burden of showing that no
claim has been stated. Animal Science Products, Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n. 9 (3d Cir. 2011). For the purposes of a
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motion to dismiss, the facts alleged in the complaint are accepted as true
and all reasonable inferences are drawn in favor of the plaintiff. N.J
Carpenters & the Trustees Thereof v. Tishman Const. Corp. of N.J, 760
F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation
to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Thus, the complaint’s factual allegations must be sufficient to
raise a plaintiff’s right to relief above a speculative level, so that a claim
is “plausible on its face.” Id. at 570; see also Umland v. PLANCO Fin.
Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). That facial-plausibility
standard is met “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[tjhe plausibility standard is not akin
to a ‘probability requirement’.

.

.

it asks for more than a sheer

possibility.” Iqbal, 556 U.S. at 678.
As the Third Circuit instructed post-Iqbal, “conclusory or ‘barebones’ allegations will no longer survive a motion to dismiss: ‘threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.’ To prevent dismissal, all civil
complaints must now set out ‘sufficient factual matter’ to show that the
claim is facially plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 662). “Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.” Iqbal, 556 U.S. at 662 (citing Twombly, 550 U.S. at 555).
Mallory is of course appearing pro

Se.

A pro se complaint is “to be

liberally construed,” and, “however inartfully pleaded, must be held to
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less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Parcius, 551 U.S. 89, 93-94 (2007). Nevertheless, it must
meet some minimal standard.
The only substantive factual allegation in the complaint is that
“Verizon has a supervisor there named Chris Lundgren who is a racist
and has suspended me over and over until he finally dismissed me.”
(Compi. ¶9). This is the sort of “naked assertion’ devoid of ‘further
factual enhancement” that Iqbal and Twombly deemed impermissible.
Iqbal, 556 U.S. at 662 (citing Twombly, 550 U.S. at 555). Simply calling
someone a “racist” does not establish the basis of a claim. The complaint
also fails to state any facts whatever as to the alleged suspensions or the
dismissal. The other three individual defendants are not even mentioned
in the complaint. It is not a matter of the sufficiency of the factual
allegations; this complaint sets forth virtually no factual allegations at
all. It does not state or even suggest a plausible Title VII claim.
III.

CONCLUSION

For the foregoing reasons, the motion to dismiss the complaint is
granted, and the complaint is dismissed without prejudice.
Dated: January 29, 2015
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KEVIN MCNULTY
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United States District Judge

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