Sabrosso-Rennick v. North Carolina State Treasurer

Filing 20

ORDER denying 10 Motion for Entry of Default; denying 12 Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim; granting 15 Motion for Extension of Time to File Response; granting 17 Motion requesting Clerk to Reissue Summons; granting 18 Motion to Amend Complaint. Signed by US District Judge Terrence W. Boyle on 10/11/2017. Copy sent to Rosita Sabrosso-Rennick via US Mail to 3802 Delverne Road, Baltimore, MD 21218. (Stouch, L.)

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IN THE UNITED STATES DISTRICT COURT ' FOR THE EASTERN DISTRICT OF NORTH CAROLINA . WESTERN DIVISION No. 5:17-CV-114-BO ROSITA SABROSSO-RENNICK, Plaintiff, v. NORTH CAROLINA STATE TREASURER, Defendant. ) ) ) ) ) ) ) ) ORDER This cause comes before the Court on plaintiffs motion for entry of default, defendant's motion to dismiss, plaintiffs motion to amend, and plaintiffs motion to reissue summons. The appropriate responses have been filed or the time for doing so has expired and the matters are ripe for ruling. BACKGROUND Plaintiff instituted this action by filing a motion to proceed informa pauperis, which was granted by order entered March 24, 2017. Plaintiffs complaint alleges that she was retaliated against by defendant, her employer, in violation of Title VII of the Civil Rights Act of 1964 and further alleges a claim for retaliation in violation ofN.C. Gen. Stat. § lA-1. Summons prepared by plaintiff were issued and the complaint and summons were served by the U.S. Marshal. [DE 9]. After proof of service had been filed, plaintiff moved for entry of default against defendant pursuant to Fed. R. Civ. P. 55(a). Defendant then moved to dismiss plaintiffs complaint for insufficient process and service of process pursuant to Fed. R. Civ. P. 12(b)(4) and 12(b)(5). Defendant further seeks dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff thereafter moved to amend her complaint and to have summons reissued so that service can be effected. DISCUSSION At the outset, the Court grants plaintiffs motion for extension of time and deems her motion to amend and response to the motion to dismiss timely filed. Rule 15 of the Federal Rules of Civil Procedure directs that, where the time for amending a pleading as a matter of course has passed, leave to amend should be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). "This liberal rule gives effect to the federal policy in favor ofresolving cases on their merits instead of disposing of them on technicalities." Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). The Court finds no prejudice or bad faith in plaintiffs request to amend, nor that amendment would be futile, and allows her motion to amend her complaint. Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (citation omitted). "Informa pauperis plaintiffs must rely on the district court and the U.S. Marshals Service to effect service of pro~ess according to 28 U.S.C. § 1915." Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010). Although plaintiffs summons did not identify the correct agent for service on defendant, good causes exists for permitting her an opportunity to effect proper service. Plaintiffs motion to reissue summons is granted. CONCLUSION For the foregoing reasons, plaintiffs motion for extension of time [DE 15] is GRANTED. Plaintiffs motion to amend [DE 18] is GRANTED. The clerk is DIRECTED to file the amended complaint at [DE 18-2]. Plaintiffs motion to reissue summons [DE 17] is also GRANTED. The clerk is DIRECTED to prepare the summons and USM 285 form and to provide with them a copy of the original complaint, the amended complaint, the order granting in 2 • I • .., forma pauperis status, and this order to the U.S. Marshals Service for service on defendant. Plaintiffs motion for entry of default [DE 10] is accordingly DENIED and defendant's motion to dismiss [DE 12] is also DENIED. SO ORDERED, this JL day of October, 2017. ERRENCE W. BOYLE UNITED STATES DIST 3

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