SCIPIO v. VITEC VIDEOCOM et al
OPINION. Signed by Judge John Michael Vazquez on 7/6/17. (DD, ) N/M
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Not for Publication
Civil Action No. 15-7776
VITEC VIDEOCOM, SEAMUS MCNALLY,
LORENA LUPINNACI, JENNIFER MIKEY,
MARTY FRASCO, DONALD MASON,
individually and in their official capacities,
John Michael Vazguez, U.S.D.J.
The present matter comes before the Court on Defendants’1 partial motion to dismiss the
Amended Complaint pursuant to Rule 4(m) of the Federal Rules of Civil Procedure for failure to
timely serve and Rule 12(b)(6) for failure to state a claim. Pro Se Plaintiff Michael Scipio
(“Plaintiff’) opposes the motion.2 This case concerns the alleged discrimination by Vitec and the
Individual Defendants against Plaintiff. This motion was decided without oral argument pursuant
Defendants include Vitec Videocom’s (“Vitec”), and a group of current and former employees
of Vitec (collectively referred to as the “Individual Defendants”). The Individual Defendants
consist of Seamus McNally, Lorena Lupinacci, Jennifer Milkey, Donald Mason, and Marty Frasco
(collectively with Vitec, “Defendants”).
Defendants’ brief in support of its partial motion to dismiss the Amended Complaint will be
referred to hereinafter as “Def Br.” (D.E. 23); Plaintiffs opposition to Defendants’ motion to
dismiss will be referred to “P1. Opp’n” (D.E. 25); and Defendants’ reply brief will be referred to
“Def. R.Br.” (D.E. 30).
to Rule 7$ and Local Civil Rule 78.1. The Court has considered the parties’ submissions and
grants in part Defendants’ motion.
The following facts are derived from Plaintiffs Complaint3 and Amended Complaint
(“AC”).4 In August 2013 Plaintiff began working as a temporary employee at Vitec, a company
located in Budd Lake, New Jersey. Vitec provides support equipment and accessories for cameras.
¶J 12-13. Plaintiffs temporary status lasted until April 2014, when he accepted a
permanent position as a “Warehouse Shipping Lead.” Id.
¶ 12. Before accepting this position, he
was advised by Lorena Lupinacci, the manager of Vitec’s Human Resources, that Vitec “did not
try to lock employees into positions” and “fostered an environment that encouraged and allowed
employees to apply for opportunities within the company.” AC
The AC alleges instances of discrimination and describes a “hostile work environment.”
¶J 60-137. Initially, Plaintiff alleges that he notified Vitec employee Marty Frasco in
October 2014 that “due to the accumulation of events, a stressful and hostile environment was
being created” and that “[Plaintiff] wanted to work the situation out with [Frasco], but if not
possible, plaintiff would have to address [his] concerns through HR.” Id.
¶J 78-79. Also in
October 2014, Frasco told Plaintiff that “he (Frasco) would discontinue his previous attempts to
Seemingly crucial facts were omitted from Plaintiffs Amended Complaint. The Court therefore
refers back to original Complaint to set forth a comprehensible tirneline of the factual allegations.
When reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts in the
complaint. Fowler v. UPMCShadyside, 57$ F.3d 203, 210 (3d Cir. 2009). Here, the Court accepts
the well-pleaded facts in the AC for purposes of the current motions. The facts taken from the
original Complaint, as indicated in note 1, supra, are referenced for context. However, even if the
Court were to consider the factual allegations in the original Complaint, it would not change the
modify [P]laintiffs job description and responsibilities.” Id.
$1. Sometime in 2014, Plaintiff
stated his concern that Frasco (or other management) was “requiring the [Plaintiff] to perform
functions of Inventory Control [instead of Warehouse Shipping Lead]”. Id.
alleges that Frasco “scream[ed] at and berate[d] [P]laintiff in front of [a co-worker].” Id.
Plaintiff eventually filed a grievance letter with Vitec on February 23, 2015. Id.
concerned Plaintiffs alleged discriminatory treatment under Frasco’s supervision and the creation
of a hostile work environment. Id.
63. “[I]n or around the last two months of 2015,” a
temporary employee was placed into a permanent job which Plaintiff had sought. Id.
Plaintiff emphasizes the fact that he was told that it was Vitec’s policy to offer available
positions first to permanent employees, and then allow temporary employees to apply for these
In Plaintiffs grievance letter written on February 23, 2015, and in a subsequent
meeting, Plaintiff “expound[ed] upon options and articulated unequivocally that beyond
addressing the hostile work environment issue, [P]laintiff wanted either
a raise to stay in the
or a move to one of the vacant positions or temporarily filled positions in the
Plaintiff proposed four different positions he “could fill immediately,”
including: “(1) data entry, (2) warehouse shipping, (3) cycle count or (4) receiving.” Id.
After Plaintiffs request to change positions, another employee was moved to the receiving job he
had applied for. Id.
move was denied. Id.
Vitec offered no written or verbal reason why Plaintiffs request to
43. Plaintiff concludes that these incidents were contrary to company
The year 2015 appears to be in error since Plaintiff was terminated on April 28, 2015. Compl.
¶J 12, 21. In ruling on Defendants’ motion to dismiss the original Complaint, the Court previously
requested that Plaintiff fix this apparent error in an amended complaint. D.E. 23, at 3 n.3. Plaintiff
policy and that Vitec blocked Plaintiff from applying for positions “in an illegal discriminatory
During the last week of March 2015, Donald Mason, a Vitec employee, “inappropriately
accused [Plaintiff] of being on the clock but off [sic] out of the building.” Id.
that he proved to Mason that he was, in fact, “off the clock and on lunch.
¶ 50. Plaintiff alleges
[a]nd advised [Mason]
he should not address [Plaintiff] or force [Plaintiff] to participate in official company business on
[his] personal time.” Id.
¶ 51. The next day Mason apologized for his behavior and offered
Plaintiff the position of “picker/packer.” Id.
move to a different position in February 2015.
¶ 54. Plaintiff responded that he had requested a
Plaintiff alleges that Vitec retaliated “against Plaintiff for filing a grievance and reporting
a [h]ostile [w]ork [e]nvironment” by issuing a “letter of warning” to Plaintiff. Id.
Plaintiff further alleges that he never received “the investigation report” or an “adequate response”
to the claims he raised. Id.
¶J 64-66. Around April 8, 2015, Plaintiff filed a formal EEOC
complaint bringing claims “for disparate treatment and discrimination based on sex (male) and/or
[r]ace (African-American).” Id.
¶ 21. On or around April 28, 2015, Plaintiff received an email
with an unsigned letter from Human Resources tenninating his employment. Compl.
Plaintiff then filed the present action.
II. PROCEDURAL HISTORY
The alleged exchange with Mason is not very clear. It does not seem that Plaintiff accepted the
offer to move to the “picker/packer” position. Id. ¶f 54-5 7
Plaintiff filed his initial Complaint on October 29, 2015, alleging ten causes of action.7
D.E. 1. On February 25, 2016, Plaintiff filed an application to extend the time to serve Defendants.
D.E. 5. By an Order dated February 29, 2016, the Court granted Plaintiffs request and extended
the time to serve Defendants to March 31, 2016. D.E. 6. On April 20, 2016, Defendants moved
to dismiss all counts except Counts Four and Ten, pursuant to Federal Rule of Civil Procedure
12(b)(6). D.E. 17. On May 23, 2016, the Individual Defendants moved to dismiss the Complaint
for insufficient service of process pursuant to Federal Rule of Civil Procedure 4(e), and for
untimely service of process pursuant to Rule 4(m). D.E. 21.
The Court, on August 2, 2016, granted Defendants’ motion for partial dismissal, dismissing
Counts One, Two, Three and Five with prejudice and Counts Six, Seven, Eight, and Nine without
prejudice (hereinafter the “August 2 Opinion”).
The Court denied the Individual
Defendants’ motion to dismiss for insufficient service of process, giving Plaintiff forty-five (45)
days to effect proper service. Id. Accordingly, Plaintiff had until September 16, 2016 to serve the
Plaintiff subsequently filed his Amended Complaint alleging two causes of action: (1)
violation of 42 U.S.C.
1981; and (2) violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e, et seq. (“Title VII”). AC
4-14. In lieu of answering, Defendants filed their
motion to dismiss on February 28, 2017. D.E. 37. Plaintiff opposed this motion. D.E. 3$.
Plaintiffs Complaint alleged the following counts: (1) violation of Due Process and Equal
Protection under Fourteenth Amendment of the United States Constitution; (2) violation of Due
Process and Equal Protection of the New Jersey Constitution; (3) violation of 42 U.S.C. § 1983;
(4) violation of 42 U.S.C. § 1981; (5) violation of New Jersey Civil Rights Act, N.J.S.A. 10:6-2 et
seq. (“NJCRA”); (6) violation of 42 U.S.C. § 1985 et seq.; (7) violation of 42 U.S.C. § 1986; (8)
violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, etseq. (“CEPA”); (9)
Defamation; and (10) violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et
seq. (“Title VII”). Id. ¶J 96-145.
III. STANDARD OF REVIEW8
Rule 12(b)(5) permits a court to dismiss a complaint for insufficient service of process.
Fed. R. Civ. P. 12(b)(5). The party effecting service has the burden of establishing that service
was sufficient. Grand Entm ‘t Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir.
1993). Courts, however, have “broad discretion” in deciding a motion to dismiss pursuant to Rule
12(b)(5). Hoist v. New Jersey, No. 12-5370, 2013 WL 5467313, at *3 (D.N.J. Sept. 30, 2013).
A plaintiff must serve the summons and complaint on each defendant within 120 days of
filing the complaint or the matter is subject to dismissal.9 Fed. R. Civ. P. 4(m). But before a court
dismisses a case for insufficient service of process, it must determine whether there was good
cause for a plaintiffs failure to effect timely service. Fetrucelli v. Bohringer & Ratzinger, GMBH,
46 F.3d 129$, 1305 (3d Cir. 1995). A plaintiff has the burden to establish good cause. Mason v.
Therics, Inc., No. 08-2404, 2009 WL 44743, at *2 (D.N.J. Jan. 6, 2009). Good cause requires “a
demonstration of good faith on the part of the party seeking an enlargement and some reasonable
basis for noncompliance within the time specified in the rules.”
MCI Telecornm. Corp. v.
Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995). Three factors are used to evaluate good
cause: “(1) reasonableness of plaintiffs effort to serve (2) prejudice to the defendant by lack of
timely service and (3) whether plaintiff moved for an enlargement of time to serve.” Id. “Although
courts must construe pro se complaints liberally in favor of plaintiffs
courts cannot exercise
Defendants do not explicitly state any rule pursuant to which they bring their motion to dismiss.
Nonetheless, the Court interprets the motion as a 12(b)(5) motion for insufficiency of process and
a 12(b)(6) motion for failure to state a claim because Defendants’ motions address these two
Rule 4(m) has since been amended to reduce the time for service to ninety days. See Miles v.
City ofNewark, No. 15-1032, 2016 WL 4923504, at *2 n.1 (D.N.J. Sept. 14, 2016).
jurisdiction over a party that has not been properly served in conformity with Rule 4 of the federal
Rules of Civil Procedure.” Conradv. Potter, No. 04-5094, 2006 WL 54337, at *2 (D.N.J. Jan. 10,
2006) (internal citations omitted).
If a plaintiff can demonstrate that good cause exists, “the district court must extend the
time for service.” Petritcelli, 46 f.3d at 1305. If good cause does not exist, “the court may in its
discretion decide whether to dismiss the case without prejudice or extend time for service.” Id.
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move to
dismiss a count for “failure to state a claim upon which relief can be granted[.]” To withstand a
motion to dismiss under Rule 1 2(b)(6), a plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Ati. Corp.
Twombly, 550 U.S. 544, 570 (2007). A
complaint is plausible on its face when there is enough factual content “that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ash croft v.
Iqbal, 556 U.S. 662, 678 (2009). Although the plausibility standard “does not impose a probability
requirement, it does require a pleading to show more than a sheer possibility that a defendant has
acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal
quotation marks and citations omitted). As a result, a plaintiff must “allege sufficient facts to raise
a reasonable expectation that discovery will uncover proof of [his] claims.” Id. at 789.
In evaluating the sufficiency of a complaint, a district court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
A court, however, is “not
compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions
disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). If,
after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no
relief could be granted under any set of facts consistent with the allegations, a court may dismiss
the complaint for failure to state a claim. Defazio v. Leading Edge Recovery Sols., No. 10-2945,
2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).
In addition, because Plaintiff is proceeding pro se, the Court construes the pleadings
liberally and holds them to a less stringent standard than those filed by attorneys. Haines v. Kerner,
404 U.S. 519, 520 (1972).
“The Court need not, however, credit a pro se plaintiffs ‘bald
assertions’ or ‘legal conclusions.” D’Agostino v. CECOM RDEC, No. 10-4558, 2010 WL
37 19623, at *1 (D.N.J. Sept. 10, 2010) (citing Morse v. Lower Merion Sc/i. Dist., 132 f.3d 902,
906 (3d Cir. 1997)).
Service of Process
Defendants argue that Plaintiff failed to timely serve the Individual Defendants and,
therefore, the AC should be dismissed as to them. Def. Br. at 3-4. Defendants note that the only
Individual Defendant Plaintiff attempted to serve is Defendant frasco, whom he served 16 days
after this Court’s deadline.
Plaintiff responds by arguing that prior to his extension in February of 2016, he “had been
to the Court Clerk’s office at least twice,” however “the Court Clerk would not provide any
stamping or issuance of Summons until the Court ruled on Plaintiffs in forma pauperis
application.” P1. Opp’n at 1. Plaintiff further alleges that after his application was granted, the
Individual Defendants no longer worked at Vitec and therefore their summonses were returned to
the Court and to Plaintiff Id. at 2. He also claims that he only had information to contact Frasco
and after searching for that information he “eventually [found] it and provided it to the Court.”
Id. Plaintiff asserts that he provided the information to the Court within the 45-day extension
granted by this Court’s August 2 Opinion and it “is beyond his control as to how quickly the US
Marshall service will actually serve a defendant.” Id. Lastly, Plaintiff contends that he was having
trouble with his “mail delivery.”0 Id. at 3.
Plaintiff filed his initial Complaint on October 29, 2015. D.E. 1. Plaintiff requested, and
was granted, an extension of time to serve Defendants until March 31, 2016. D.E. 5, 6. Plaintiff
failed to properly serve any of the Individual Defendants and on May 23, 2016, the Individual
Defendants moved to dismiss Plaintiffs Complaint for insufficient service of process. D.E. 21.
In its August 2 Opinion, this Court found that Plaintiff did not demonstrate good cause for failing
to timely and properly serve the Individual Defendants. D.E. 23, at 10. Nonetheless, the Court
exercised its discretion and granted Plaintiff an additional forty-five days to serve each of the
Individual Defendants. Id. at 11. Therefore, Plaintiff had until September 16, 2016 to effect
Plaintiff served Defendant Frasco on November 26, 2016, over two months after the
deadline to effect service had run. D.E. 31. The application to the U.S. Marshalls indicates that it
was filled out on September 15, 2016, and Plaintiff argues that this is sufficient to demonstrate that
he served F rasco before the required date. Id. Plaintiff did not attempt to serve the remaining
Plaintiff goes on to give examples of receiving delayed court documents and orders. It is unclear
how this affects Plain tff’s ability to timely serve the Individual Defendants.
Plaintiff filed his AC on January 27, 2017. D.E. 32. However, this is irrelevant to the question
of whether Plaintiff properly served Defendants with his initial Complaint. “The filing of an
amended complaint does not restart the service period as to defendants named in the original
complaint.” Zhang v. Haven-Scott Assocs., Inc., No. 95-2126, 1996 WL 355344, at *5 (E.D. Pa.
June 21, 1996).
As noted in its August 2 Opinion, this Court finds no good cause for Plaintiffs failure to
serve the Individual Defendants. See Fetrttcelli, 46 f.3d at 1305. Plaintiff has now received two
extensions to serve Defendants.
To demonstrate good cause, Plaintiff must show that “he
exercised diligence in trying to effect service.” Jumpp v. Jerkins, No. 08-6268, 2010 WL 71567$,
at *7 (D.N.J. Mar. 1, 2010). Here, Plaintiff attempted to serve Frasco a single day before the
deadline expired and made no attempt to serve the remaining Individual Defendants. These efforts
are not “reasonable” in light of Plaintiff s extended time granted by this Court. See id. Moreover,
Plaintiff did not move for an enlargement of time to serve. Id. at *11 (finding plaintiffs’ failure to
move for an enlargement of time for service to contribute to a finding that plaintiffs did not
demonstrate good cause). While neither party argues prejudice, the “absence of prejudice alone
can never constitute good cause to excuse late service.” MCI Telecomms., 71 F.3d at 1097. Thus,
the Court finds no good cause for Plaintiffs delay and failure to serve the Individual Defendants.
However, absent good cause, a court may still exercise its discretion and extend the time
for service. Jumpp, 2010 WL 715678, at *6. In making this determination, “the court may
consider and balance several factors including (1) actual notice of the action, (2) prejudice to the
defendant, (3) statute of limitations, (4) conduct of the defendant, (5) whether the plaintiff is
represented by counsel, and (6) any other relevant factor.” Id. at *7
Previously, this Court stressed Plaintiffs pro se status in extending his time for service.
D.E. 23. Since Plaintiff is proceeding pro Se, and he directed the U.S. Marshalls to serve Frasco
prior to the September 16 deadline, the Court will again exercise its discretion in excusing
Plaintiffs delay in serving Frasco. See Cain v. Abraxas, 209 Fed. Appx. 94, 97 (3d Cir. 2006)
(noting plaintiffs pro se status as a factor that weighs in favor of a court exercising its discretion
pursuant to Rule 4(m)). Nonetheless, this case was originally filed nearly two years ago, and
Plaintiff has failed to effect service on the remaining Individual Defendants.
extensions of the time to serve, Plaintiff still has not properly served the remaining Individual
Defendants. Moreover, since this Court’s most recent extension in August, it appears that Plaintiff
has not attempted service on anyone other than Frasco. Therefore, this Court will grant the
Individual Defendants’ motion with respect to McNally. Lupinnaci. Mikey, and Mason and the
AC is dismissed as to them. See Garlanger v. Verbeke, 223 F. Supp. 2d 596, 6 10-11 (D.N.J. 2002)
(dismissing the complaint against defendant for failure to comply with Rule 4(m) “because more
than thirteen months have passed since the filing of Plaintiffs original complaint” and “Plaintiff
has demonstrated no reasonable basis for failing to comply with the service requirements of Rule
Failure to state a claim
Defendants also argue that Title VII does not subject individual employees to liability and
therefore Count Two should be dismissed as to the Individual Defendants. Def. Br. at 4. Plaintiff
responds that “Courts have upheld Title VII actions against individual supervisors in their official
capacities.” P1. Opp’n at 4. Defendants reply that individual liability under Title VII is a minority
view that has been rejected by the Third Circuit. Def. R.Br. at 2. Therefore, Defendants request
the Court dismiss the Title VII claim as to the Individual Defendants.
In the Third Circuit, “individual employees cannot be held liable under Title VII.” See
Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996); LeJon-Twin El v.
Marino, No. 16-2292, 2017 WL 592232, at *3 n.2 (D.N.J. Feb. 14, 2017) (“The Third Circuit has
long held that Title VII liability attaches to employers, not to individual supervisory employees.”).
Since Title VII liability does not attach individuals, the Court will dismiss Count Two as to all
Individual Defendants with prejudice.
In sum, the Court GRANTS IN PART Defendants’ motion. Count One is dismissed as to
Defendants McNally, Lupinnaci, Mikey, and Mason without prejudice. Count Two is dismissed
as to the Individual Defendants with prejudice. Plaintiff has thirty (30) days to file an amended
complaint, if he so chooses, consistent with this Opinion and with Local Civil Rule 15.1.12
appropriate Order accompanies this Opinion.
Date: July 6, 2017
UNITED STATES DISTRICT JUDGE
Effective May 10, 2017, Local Civil Rule 15.1 states, in part, that:
A party who files an amended pleading in response to an Order
authorizing the filing of that pleading to cure a defect in its pleading
(1) a copy of the amended pleading, complete with a handwritten or
electronic signature; and
(2) a form of the amended pleading that shall indicate in what
respect(s) it differs from the pleading that it amends, by
bracketing or striking through materials to be deleted and
underlining materials to be added.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?