Green-Hayes v. HH Hunt Corporation

Filing 16

ORDER GRANTING 8 Defendant's Motion to Dismiss, and DENYING 12 Plaintiff's Motion for Extension of Time to File Response. Plaintiff's claims are dismissed in their entirety and the clerk is directed to close the case. Signed by US District Judge Terrence W. Boyle on 10/28/2013. Counsel is directed to read Order in its entirety. Copy mailed to pro se plaintiff via US Mail. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:13-CV-604-BO

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LISA GREEN-HAYES,
Plaintiff,
V.

HHHUNT CORPORATION dba
HANDCRAFTED HOMES,
Defendant.

ORDER

This matter is before the Court on defendant HHHunt Corporation's ("HHH") motion to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (5), and (6). [DE 8], and plaintiff
Lisa Green-Hayes's motion for an extension of time [DE 12]. The motions are ripe for
adjudication. For the reasons stated herein, plaintiffs motion for extension of time is DENIED,
and defendant's motion to dismiss is GRANTED.

BACKGROUND
Pro se plaintiff filed a charge of discrimination with the United States Equal Employment
Opportunity Commission, Raleigh Area Office ("EEOC") on October 25, 2011, asserting claims
for discrimination based on race and sex, and retaliation under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). On August 20, 2013, the EEOC issued a notice
of right to sue, and Plaintiff initiated this civil action on August 22, 2013, alleging discrimination
based on her termination. Defendant filed a motion to dismiss on September 16, 2013 and the
response motion deadline was set as October 10, 2013. On October 18, 2013, plaintiff filed her

motion for an extension of time to reply to defendant's motion and filed her response on October
21, 2013. Defendant objects to the motion for extension oftime.
DISCUSSION

Plaintiff bases her request for an extension of time to respond to defendant's motion to
dismiss on her difficulty in obtaining counsel. However, this Court's Local Rule 7.l(e)(l) is
clear: "Responses and accompanying documents shall be filed within twenty-one (21) days after
service of the motion in question unless otherwise ordered by the court or prescribed by the
applicable Federal Rules of Civil Procedure." (emphasis added). Although prose litigants are
entitled to some deference from the courts, "they as well as other litigants are subject to the time
requirements ... without which effective judicial administration would be impossible." Ballard
v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989). Plaintiff failed to request her extension oftime

before the deadline to respond to defendant's motion to dismiss expired. Accordingly, plaintiffs
motion is denied and this Court considers defendant's motion to dismiss unopposed. For the
reasons stated below, defendant's motion to dismiss is granted and plaintiffs complaint is
dismissed in its entirety.
I.

12(b)(5).

A motion under Rule 12(b)( 5) of the Federal Rules of Civil Procedure is the "appropriate
means for challenging the sufficiency of process." Plant Genetic Sys., N. V v. Ciba Seeds, 933 F.
Supp. 519, 526 (M/D.N.C. 1996). Once service has been contested, the plaintiffbears the burden
of establishing the validity of service pursuant to FED. R. Crv. P. 4 and, by incorporation, the
North Carolina Rules of Civil Procedure. Dalenko v. Stephens, 917 F. Supp. 2d 535, 542
(E.D.N.C. 2013). "Absent waiver or consent, a failure to obtain proper service on the defendant
deprives the court of personal jurisdiction over the defendant." Koehler v. Dodwell, 152 F .3d

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304, 306 (4th Cir. 1998). Here, plaintiff failed to properly effectuate service of process on HHH.
Plaintiff addressed her service packet to Mr. Cochran, who is not an officer, director, or agent of
the corporation for the purpose of accepting service of process. However, when service of
process gives the defendant actual notice of the pending action, courts may construe Rule 4
liberally to effectuate service and uphold the jurisdiction of the court. Karlsson v. Rabinowitz,
318 F.2d 666, 668 (4th Cir. 1963). Here, defendant's counsel is handling the case, and it is
apparent to this Court that defendant has actual notice of this action. Accordingly Rule 12(b)(5)
does not prevent this Court from having personal jurisdiction over defendant.
II.

12(b)( 6).

A Rule 12(b)( 6) motion to dismiss for failure to state a claim for which relief can be
granted challenges the legal sufficiency of a plaintiffs complaint. Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009). When ruling on the motion, the court "must accept as true all of
the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 93-94
(2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although complete and
detailed factual allegations are not required, "a plaintiffs obligation to provide the 'grounds' of
his 'entitle[ment] to relief requires more than labels and conclusions." Twombly, 550 U.S. at 555
(citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 555). Similarly, a court need not accept as true a plaintiffs "unwarranted
inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts. v. JD. Assocs. Ltd.,
213 F.3d 175, 180 (4th Cir. 2000). A trial court is "not bound to accept as true a legal conclusion
couched as a factual allegation." Twombly, 550 U.S. at 555.

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Here plaintiff has brought the entirety of her claims against HHH doing business as
Handcrafted Homes. Defendant insists that it never employed plaintiff, that HHH has never done
business as Handcrafted Homes, and that Handcrafted Homes, LLC is legally separate and
distinct from HHH. Title VII prohibits "employers" from discriminating against employees. See
42 U.S.C. § 2000e-2(a). "[A]n individual qualifies as an 'employer' under Title VII if he or she
serves in a supervisory position and exercises significant control over the plaintiffs hiring,
firing, or conditions of employment." Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.
1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990). Plaintiff only alleges
activities that took place at Handcrafted Homes, and alleges no employment relationship with
HHH. Her characterization of HHH doing business as Handcrafted Homes is a legal conclusion
that this Court is not obligated to accept as true. Plaintiff has not alleged that she was ever an
employee of HHH. As a matter of law, HHH cannot be liable under Title VII for the treatment of
someone who it never employed. Therefore plaintiffs complaint is dismissed in its entirety.
Because Plaintiff has failed to adequately state a claim upon which relief may be granted, the
Court does not reach the question of subject matter jurisdiction.
CONCLUSION

For the foregoing reasons, plaintiffs motion for an extension oftime [DE 12] is DENIED
and defendant's motion to dismiss [DE 8] is GRANTED. Plaintiffs claims are DISMISSED in
their entirety. The clerk is directed to close the file.
SO ORDERED.
This the~ day of October, 2013.

UNITED STATES DISTRICT JUDGE
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