PARHAM v. ARBYS RESTAURANT et al
Filing
35
MEMORANDUM OPINION AND ORDER signed by JUDGE N. C. TILLEY, JR. on 9/28/2017. For the reasons stated herein, Plaintiff Latasha M. Parham's Motion to Modify Defendant's Name to Arby's Restaurant Group, Inc. (Doc. # 31 ) is GRANTED. FU RTHER ORDERED that Defendants Arby's Restaurant Group, Inc.'s, Kevin Williams', Andrew Dobbins', Ronald Riemesch's, Soraya Gomez's, and Tyika Johnson's Motion to Dismiss (Doc. # 20 ) is GRANTED and the claims against these Defendants are DISMISSED without prejudice. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LATASHA M. PARHAM,
Plaintiff,
v.
ARBY’S RESTAURANT GROUP,
INC., ET AL.,
Defendants.
)
)
)
)
)
)
)
)
)
)
1:16CV308
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on a Motion to Dismiss [Doc. #20]
pursuant to Federal Rule of Civil Procedure 4(m), 12(b)(5), and 12(b)(6) filed by
Defendants Arby’s Restaurant Group, Inc.1 (“Arby’s”), Andrew Dobbins, Soraya
Gomez, Tyika Johnson, Ronald Riemesch, and Kevin Williams.2 For the reasons
explained below, the Motion will be granted.
Plaintiff Latasha M. Parham, proceeding pro se, is a former employee of the
Arby’s restaurant located at 5503 South Miami Boulevard in Durham, North
Carolina. (Compl. [Doc. #2] at 1-2.) According to the Complaint, Ms. Parham was
sexually harassed by Dwayne Thomas, a manager there, in front of other Arby’s
managers. (Id. at 2.) Ms. Parham alleges that Thomas “groped his genitalia on
1
On January 30, 2017, Plaintiff filed a Motion to Modify Defendant’s name
to Arby’s Restaurant Group, Inc. [Doc. #31.] Arby’s does not object to this
proposed amendment. (Resp. [Doc. #32] at 3.) As it is uncontested and it is the
correct name of the corporate defendant, the Motion [Doc. #31] will be granted.
2
The remaining defendant, Dwayne Thomas, has not filed a Motion to
Dismiss in the present action.
[her] and grab[bed] her breast” and “made sexual comments” to her. (Id.) She
also alleges that Thomas “violated other woman [sic] in front of [General Manager]
Kevin Williams.” (Id.) Ms. Parham asserts that the other individual defendants,
General Managers Kevin Williams and Andrew Dobbins, Manager Ronald Riemesch,
and Area Supervisors Soraya Gomez and Tyika Johnson, all of whom are
employees of Arby’s, did not take her allegations seriously. (Id.)
Ms. Parham further alleges that, after she made a complaint,3 “she was
treated differently from other employees.” (Id.) Specifically, she asserts that: (1)
Williams did not return her calls about the harassment and eventually cut her work
hours; (2) Dobbins harassed her by using profanity, “jumped in [her] face with hand
contact,” and “tormented” her; (3) Riemesch harassed and “tormented” her; (4)
Gomez ignored her complaint and “stood me up about taking down my complaint”;
and (5) Johnson, a friend of Dobbins, also harassed her. (Id.) In conclusion, Ms.
Parham alleges that Arby’s management made her work in a hostile environment,
violated her rights, and “made [her] feel less of a human being.” (Id.)
Ms. Parham filed a Charge of Discrimination with the U.S. Equal Employment
Opportunity Commission (“EEOC”) based on sexual harassment and retaliation in
violation of Title VII of the Civil Rights Act of 1964. (Ex. A, Letter [Doc. #2-1] at
1.) After finding “reasonable cause to believe that violations of the statute had
3
It is unclear from the Complaint what Ms. Parham means by “after putting
my complaint in.” (Compl. at 2.) Ms. Parham’s reference to her “complaint” could
mean her EEOC charge, an internal grievance, or both. The exact meaning,
however, does not, at this time, affect the outcome of Defendants’ motion.
-2
occurred,” the EEOC issued a Notice of Right to Sue on February 26, 2016. (Ex.
A, Notice of Right to Sue [Doc. #2-1] at 4-5.) On April 11, 2016, Ms. Parham
filed the present action alleging sexual harassment, retaliation, and hostile work
environment. (See Compl.)
On April 14, 2016, the Magistrate Judge issued an Order Granting Leave to
Proceed In Forma Pauperis, which also directed that
Plaintiff is responsible for preparing and delivering to the Clerk, the
correct summons for service on each defendant, including the correct
address and the name and title of the individual to be served on behalf
of a corporation, association, infant, incompetent or government
agency. Failure to prepare and deliver said summons within 15 days
from the filing of this order shall result in this case being dismissed
without further notice. The U.S. Marshal shall serve the summons and
complaint upon defendants.
[Doc. #4.] Almost four months later, on August 4, 2016, the Magistrate Judge
sua sponte issued an Order recommending that the present action be dismissed
without prejudice for Ms. Parham’s failure to comply with the April 14, 2016
Order. [Doc. #5.] Ms. Parham timely filed an Objection requesting that her action
not be dismissed. [Doc. #7.] On September 12, 2016, because Ms. Parham
“submitted to the Court summonses for service upon each Defendant,” the
Magistrate Judge withdrew the prior Recommendation and ordered the U.S.
Marshal to “serve the original complaint and summonses upon defendants.” (Order
[Doc. # 10].) To date, only the summonses to Arby’s, Dobbins, and Williams have
been returned executed. (Compare [Docs. #12, 24] with [Doc. #13].) On
November 10, 2016, Defendants filed a Motion to Dismiss for Insufficient Process
-3
and for Failure to State a Claim pursuant to Federal Rule of Civil Procedure 4(m),
12(b)(5), and 12(b)(6).
First, pursuant to Rules 4(m) and 12(b)(5) of the Federal Rules of Civil
Procedure, Arby’s, Gomez, Johnson, and Riemesch argue that dismissal is
appropriate because they were not properly served. (Defs.’ Mem. in Supp. of Mot.
to Dismiss (“Defs.’ Mem.”) [Doc. #21] at 2-7.) Gomez, Johnson, and Riemesch
contend that they were not served at all as evidenced by the unexecuted summons
docketed by the Clerk’s office. (Id. at 4; Process Receipt and Return [Doc. #13].)
Arby’s argues that, although its summons was returned as executed, service of
that summons did not comply with Federal Rule of Civil Procedure 4(h). (Defs.’
Mem at 6; Process Receipt and Return [Doc. #12].) When a defendant argues that
service was improper, the plaintiff bears the burden of establishing that the service
of process has been performed in accordance with the requirements of Federal
Rules of Civil Procedure Rule 4. Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F.
Supp. 519, 526 (M.D.N.C. 1996).
Federal Rule of Civil Procedure 4(e), which governs service of process upon
individuals located in the United States, provides that service may be accomplished
by either (1) delivering a copy of the summons and complaint to the defendant
personally or to a person of suitable age and discretion then residing at the
defendant's home or usual place of abode or (2) delivering a copy of the summons
and complaint to an agent authorized by appointment or by law to receive service
of process. Fed. R. Civ. P. 4(e)(2)(A)-(C). Rule 4(h), which governs service of
-4
process upon a corporation, provides that service may be accomplished by
delivering a copy of the summons and complaint to an officer or any other agent
authorized by appointment or by law to receive service of process. Fed. R. Civ. P.
4(h)(1)(B). Service on a corporation may also be accomplished “in the manner
prescribed by Rule 4(e)(1).” Fed. R. Civ. P. 4(h)(1)(A). Rule 4(e)(1) provides that
service of process may be accomplished pursuant to the law of the state in which
the district court sits. North Carolina's requirements for service of process are
virtually identical for all practical purposes with the requirements of the Federal
Rules of Civil Procedure. See N.C. R. Civ. P. 4(j)(1) & 4(j)(6). Accordingly, Ms.
Parham could have effectuated service pursuant to Rule 4 of the Federal Rules of
Civil Procedure or North Carolina’s laws for service of process. However, she did
not follow either.
Both Federal and North Carolina courts require that service of process
statutes be strictly construed and followed. Armco, Inc. v. Penrod-Stauffer Bldg.
Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984) (“[T]he rules are there to be
followed, and plain requirements for the means of effecting service of process may
not be ignored.”); see also, Greenup v. Register, 410 S.E.2d 398, 400 (N.C. Ct.
App. 1991); Broughton v. Dumont, 259 S.E.2d 361, 363 (N.C. Ct. App. 1979).
This is true even where defendants have actual notice of the action. Hoyle v.
United Auto Workers Local Union 5285, 444 F. Supp. 2d 467, 474 (W.D.N.C.
2006); Stack v. Union Reg'l Mem'l Med. Ctr., Inc ., 614 S.E.2d 378, 382 (N.C. Ct.
App. 2005). When a statute provides for designated methods of service and a
-5
plaintiff has failed to comply with those methods, there is no valid service.
Broughton, 259 S.E.2d at 363.
On September 6, 2016, the Clerk issued summonses for Arby’s, Riemesch,
Gomez, Dobbins, Williams, and Johnson. [Doc. #9.] To date, only the summonses
for Arby’s, Dobbins, and Williams have been returned executed. [Docs. #12, 13,
24.] Therefore, as to the individual Defendants, only Dobbins and Williams have
been served. Riemesch, Gomez, and Johnson have not been served, and, as a
result, the Court has not acquired jurisdiction over them.
The summons issued for Arby’s, the corporate defendant, provided the name
“Arby’s Incorporation, Registered Agent” and the 5503 South Miami Boulevard,
Durham, North Carolina 27703 address of the Arby’s restaurant where Ms. Parham
worked. (Process Receipt and Return [Doc. #24].) The Marshal recorded Arby’s
summons as having been served when the summons was signed for by an
assistant manager of that Arby’s restaurant. ([Doc. #12] at 4.) However, the
assistant manager of an individual Arby’s location is neither an officer nor an
authorized agent for the purposes of service. See, e.g., Wilson v. WalMart Store,
Inc., No. CV15-4283, 2016 U.S. Dist. LEXIS 112618, at *5-9 (S.D.N.Y. Aug. 22,
2016) (finding that service on assistant store manager of a local branch of a
national chain was not sufficient service on corporate defendant). Here, despite
explicit instruction from the Magistrate Judge, the summons and complaint were
not directed or addressed to any officer or agent of Arby’s as required by both the
Federal and North Carolina Rules of Civil Procedure. See, e.g., Lane v. Winn–Dixie
-6
Charlotte, Inc., 609 S.E.2d 456, 460 (N.C. Ct. App. 2005) (finding summons
defective on its face for failure to designate any person authorized by North
Carolina Rule of Civil Procedure 4(j)(6)). Therefore, Ms. Parham’s attempted
service on Arby’s was defective, and, as a result, the Court has not acquired
jurisdiction over it.
Ms. Parham’s Complaint, read in the light most favorable to her, seems to
assert causes of action for sexual harassment against Dobbins and hostile work
environment and retaliation against both Dobbins and Williams. (Compl. at 2.)
Title VII of the Civil Rights Act of 1964 (“Title VII”) states that “[i]t shall be an
unlawful employment practice for any employer . . . to discriminate against any
individual with respect to [her] compensation, terms, conditions, or privileges of
employment, because of such individual's . . . sex . . . .” 42 U.S.C. § 2000e–
2(a)(1). Sexual harassment, hostile work environment, and retaliation are all claims
that may be brought under Title VII. See, e.g., Balas v. Huntington Ingalls Indus.,
Inc., 711 F.3d 401 (4th Cir. 2013). However, Title VII “do[es] not provide for
causes of action against defendants in their individual capacities.” Baird ex rel.
Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999)).4 Therefore, Ms. Parham has
4
Employers like Arby’s may be vicariously liable for an actionable hostile
work environment created by a supervisor. See Vance v. Ball St. U., ___ U.S. ____,
133 S.Ct. 2434, 2439 (2013); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
764–65 (1998); Faragher v. Boca Raton, 524 U.S. 775, 807–08, (1998).
However, because the employer, Arby’s, is no longer a party to this lawsuit, this
issue is not addressed.
-7
failed to state a claim upon which relief can be granted against either Dobbins or
Williams.
For the reasons stated herein, IT IS HEREBY ORDERED that Plaintiff Latasha
M. Parham’s Motion to Modify Defendant’s Name to Arby’s Restaurant Group, Inc.
[Doc. #31] is GRANTED. IT IS FURTHER ORDERED that Defendants Arby’s
Restaurant Group, Inc.’s, Kevin Williams’, Andrew Dobbins’, Ronald Riemesch’s,
Soraya Gomez’s, and Tyika Johnson’s Motion to Dismiss [Doc. #20] is GRANTED
and the claims against these Defendants are DISMISSED without prejudice.
This the 28th day of September, 2017.
/s/ N. Carlton Tilley, Jr.
Senior United States District Judge
-8
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?