Jones v. Sandersons Farms

Filing 43

ORDER granting 30 Motion to Dismiss for Failure to State a Claim and denying 39 Motion for Leave to File. Signed by District Judge Terrence W. Boyle on 11/5/2015. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:14-CV-101-BO
HUMPHREY A. JONES,
Plaintiff,
v.
SANDERSON FARMS, INC.,
Defendant.

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ORDER

This matter is before the Court on defendant's motion to dismiss and plaintiffs motion
for leave to file a second amended complaint. For the following reasons, defendant's motion to
dismiss is granted and plaintiffs motion to amend the complaint is denied.
BACKGROUND
This action arises out of employment between plaintiff, a North Carolina citizen and
resident, and defendant, a corporation registered to do business in North Carolina. Plaintiff filed
a pro se complaint in this Court on June 9, 2014, in which he alleged a violation of Title VII of
the Civil Rights Act of 9164. His complaint named as defendant "Sandersons Farms." On
January 29, 2015, this Court denied without prejudice defendant's first motion to dismiss, which
was based in part on alleged violations of Federal Rules of Civil Procedure 12(b)(2), (b)(4), and
(b)(5), which govern service. The Court also granted plaintiffs motion to amend the complaint
to correctly effect service of process.
Proceeding pro se, plaintiff filed the first amended complaint in which he requested more
than $25,000 in damages, after which defendant filed the instant motion to dismiss for lack of
subject matter jurisdiction and failure to state a claim for relief under Rules 12(b)(l) and 12(b)(6)
of the Federal Rules of Civil Procedure. Plaintiff subsequently obtained counsel, through whom

plaintiff filed the instant motion to amend the complaint for a second time on September 28,
2015.
DISCUSSION
Motion to Dismiss
Plaintiffs first amended complaint alleges race discrimination and retaliatory discharge
under Title VII. Defendant moved to dismiss for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1 ). When subject matter jurisdiction is challenged, the plaintiff has
the burden of proving jurisdiction to survive the motion. Evans v. B.F Perkins Co., 166 F.3d
642, 647-50 (4th Cir. 1999). When a facial challenge to subject matter jurisdiction is raised, the
facts alleged by the plaintiff in the complaint are taken as true, "and the motion must be denied if
the complaint alleges sufficient facts to invoke subject matter jurisdiction." Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009). The Court can consider evidence outside the pleadings
without converting the motion into one for summary judgment. See, e.g., Evans, 166 F.3d at 647.
A plaintiff must bring suit within ninety days of receiving a right to sue notice from the
Equal Opportunity Employment Commission (EEOC). 42 U.S.C. § 2000e-5(t)(l). Failure to
comply with this time limit forecloses a plaintiff from bringing suit on the allegations made in
the EEOC discrimination charge. Zipes v. Transworld Airlines, Inc. 455 U.S. 385, 393 (1982);
Harvey v. City of New Bern Police Dep 't, 813 F.2d 652, 654 (4th Cir. 1987); Theard v. United
States Army, 653 F.Supp. 536, 541 (M.D.N.C. 1987). In determining when a plaintiff received
the right to sue notice, the Fourth Circuit has rejected an "actual receipt" rule, Harvey, 813 F.2d
at 654, in favor of a presumption that the letter was received within three days after it was
mailed, Fed. R. Civ. P. 6(d); Nguyen v. !nova Alexandria Hosp. 187 F.3d 630, 1999 WL 556446
at *3 (4th Cir. 1999)(unpublished).

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Here, the EEOC's right-to-sue letters are dated November 18, 2013 and November 25,
2013. [DE 31-1, 31-2]. Each letter clearly states that any lawsuit must be filed within 90 days of
receipt of the notice. Accordingly, plaintiff's deadline for filing on the first charge occurred on or
about February 19, 2014, while plaintiff's deadline for filing on the second charge occurred on or
about February 26, 2014. Plaintiff filed his first complaint in this Court on June 9, 2014, over
three months beyond the deadline. Because plaintiff failed to file a civil suit during the 90-day
period indicated in the right-to-sue letter, he cannot now make claims based on the allegations in
that charge. See, e.g., 42 U.S.C. § 2000e-5(f)(l).
Moreover, plaintiff has not demonstrated that equitable tolling is appropriate. See, e.g.
Harvey 813 F.2d at 654. Plaintiff has given no reason for the delay other than that he did not

receive the letter. Reliance on a plaintiffs actual receipt would give plaintiffs an "open-ended
time extension, subject to manipulation at will." Watts-Means v. Prince George's Family Crisis
Center, 7 FJd 40, 42 (4th Cir. 1993). As plaintiff has given no explanation for his delay, the

Court declines to find that equitable tolling is appropriate. Accordingly, the Court is without
jurisdiction to consider plaintiffs Title VII claims and defendant's motion to dismiss the
amended complaint is granted. The Court declines to consider plaintiffs 12(b)( 6) argument.
Motion to Amend

Rule 15(a)(2) of the Federal rules of Civil Procedure provides that "a party may amend
the party's pleading only by leave of court or by written consent of the adverse party; and leave
shall be freely given when justice so requires." Although the right to amend is not unfettered,
"[t]he law is well settled that leave to amend a pleading should be denied only when the
amendment would be prejudicial to the opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile." Edwards v. City of Goldsboro, 178 F.3d 231,

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242 (4th Cir. 1999) (citation omitted). A proposed amendment is futile if it would not withstand
a motion to dismiss under Rule l 2(b )( 6) of the Federal Rules of Civil Procedure. United States

ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008).
In pertinent part, plaintiffs proposed amendment to the complaint would remove the
Title VII claims and add a state law wrongful termination claim. Plaintiffs proposed amended
complaint, therefore, raises no federal question. Moreover, the parties do not have diversity of
citizenship, nor is the amount in controversy greater than $75,000. See, e.g., 18 U.S.C. § 1332(a).
As the amended complaint would not state a claim over which the Court has original jurisdiction,
the Court declines to exercise supplemental jurisdiction over the remaining claims. 28 U.S.C. §
1367(c); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) ("[i]n the usual case in
which all federal-law claims are eliminated before trial the balance of factors to be considered
under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comitywill point toward declining to exercise jurisdiction over the remaining state-law claims."); Walsh

v. Mitchell, 427 F. App'x 282, 283 (4th Cir. 2011) (per curiam) (unpublished). Accordingly,
plaintiffs motion to amend the complaint is denied.

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CONCLUSION
For the foregoing reasons, defendant's motion to dismiss [DE 30] is GRANTED and
plaintiffs motion for leave to file a second amended complaint [DE 39] is hereby DENIED, as
the Court declines to exercise jurisdiction over plaintiffs state law claims. The Clerk of Court is
DIRECTED to enter judgment accordingly and to close the file.

SO ORDERED, t h i s £ day of November, 2015.

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W.BOYLE

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