Filing 41

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 09/15/2017. Based upon the evidence presented in this case, Plaintiff failed to properly effectuate service of process on Defendant Nause ef, therefore depriving the Court of personal jurisdiction over him. Alternatively, Plaintiff has failed to plausibly state a claim upon which relief may be granted. For such reasons, IT IS HEREBY RECOMMENDED that Defendant Nauseef's Motion to Dismiss (Docket Entry 19 ) be GRANTED and Plaintiff's Motions for Entry of Default and for Default Judgment (Docket Entries 31 , 34 ) be DENIED.(Taylor, Abby)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA PAUL A. LEìNS, Plaintiff, V. DURHÂM ITELLNESS AND FITNESS, INC., d/b/a MILLENNIUM SPORTS CLUB, P,\TRIK CONTE,H and ROBERTJ. NAUSEEF, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) 1,:17CY21.7 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE TUDGE This mattet is before the Coun on Plaintiff Paul A. Lewis' Motion for Entry of Default and for DefaultJudgment (Docket Entry 31) putsuant to Rule 55 of the Federal Rules of Civil Procedure, and Defendant RobertJ. Nauseefs Motion to Dismiss (Docket E.ttry 19) pursuant to Rules 12þ)Q), (5), and (6) of the Federal Rules of Civil Procedure. The matters ate ripe for disposition. For the reasons stated herein, it is recommended that Defendant's Motion to Dismiss be granted and Plaintiffs Motion for Entry of Default and for. DefaultJudgment be denied.l I. PROCEDURAL BACKGROUND On Match 1,4,2017, Plaintiff filed a Complaint against Durham Wellness and Fitness, Inc., d,/b/a/ Millennium Spotts Club ("Millennium"), its owner and managet Patdk Conteh, 1 Plaintiffsubmitted additional authority in tegatds to his Motion for Entry of Default and for Default Judgment. (Docket E ttty 34.) Having been docketed as a motion, the Court will also recommend that this motion be denied. 1, and attorney and club member RobertJ. Nauseef, along with an application to proceed inþana þaaþeris ('IFP'). (Jae Complaint, Docket Entry 1; IFP Application, Docket F,,ntry 2.) The Court granted Piaintiffs IFP application (Docket Entry 4) and shortly thereafter, summonses were issued as to all Defendants (Docket Entry 6). An ,tffidavit of Service as to Defendant Nauseef was fi.led with the Coun on April '1,0,2017. (Docket Entry 8.) On ,A.pdl 24,2017, Defendant Nauseef sought an extension of time to respond to the Complaint (Docket Ent y 11) which the Court granted (seeText Order dated 04/27 /2017). On May 5,201,J, Plaintiff filed an Amended Complaint against all Defendants. (A-. Compl., Docket Etttty 17.) Defendant Nauseef then filed a Motion to Dismiss, and submitted a cottected brief in support of his motion on May 20,201,7. (Jee Docket Entdes 19,21,.) On June L2,2017 , Plaintiff filed both a response in opposition to Defendant Nauseef s Motion to Dismiss Q)ocket Entty 30), and a Motion for Entry of Default and for Default Judgment against Defendant Nauseef. Q)ocket Entry 31.) Defendant Nauseef filed a response in opposition to Plaintiffs motion onJune 1,5,2017. (Docket Entry 32) The undersigned then held a telephone confetence with all counsel on record on June 22, 2017, at which time Plaintiffls counsel indicated that she would submit to the Cout additional case law supporting Plaintiffs position on the Motion for Entry of Default and for Default Judgment, ot alternatively voluntarily withdraw the pending motion. (See Text Order dated 06/22/2017.) Plaintiff then fi.led a supplemental motion (Docket E.rtry 34), alongwith an amended response in opposition to Defendant NauseeFs Motion to Dismiss. (Docket Entry 33.) Thereafter, Defendant Nauseef filed response and reply briefs onJune 28,2017 2 . (Docket Entries 35,36.) II. FACTUAL BACKGROUND 'tccotding to the Complaint, Plaintiffls claims arise from the termination of his membetship at Millennium, allegedly in violation of Title Act,42 U.S.C. S 12101 et seq. (Am. Compl. I1, III of the Americans with Disabilities Docket Etttty 17 at1,.) Plaintiff contends that he was a member of Millennium for more than twenty years. (Id. 1[ 19.) Due to his disabilities, Plaintiff would arrive to group fitness classes lateand head to a spotin the ftont of the class. (1/. 1T1'24-25.) Plaintiff stood in the same positon because it was always available and because of his heating issues. (Id. 1126.) Defendant Conteh, owner and operator of Millennium, allegedly infotmed Plaintiff that he should go to the back of the class or not attend class if he was running late. (Id. ffi 35, 37) ,{.ftet failing to follow Defendant Conteh's instructions, Plaintiffs membetship was terminated. Qd. 11 49.) Priot to filing this Complaint, on September 30,201.6, Plaintiff filed a complaint against Defendants Conteh and Millennium with the Consumet Protection Division of the Caroltna Department of Justice ("the NCDOJ"). Qd. ll 65; see Noth al¡o Docket Entry 1-4.) Defendant Nausee{ acting as Miliennium's legal counsel, wrote a letter in response to the NCDOJ's inquþ into the complaint against Millennium. (A-. Compl. ll66; see also Docket Entry 1-5.) In this letter, Defendant Nauseef wrote that "[t]he manager of the facility had spoken to fPlaintiff] on at least nine (9) occasions about his harassment of female membets in the Zumba classes, his interruption and disruption of many of the Zumba classes and his intimidation and language while on the ptemises." pocket Entry 1-5.) He also stated Plaintiffs behaviot tesulted in Millennium losing membership and indicated that Plaintiff had J never cornmunicatedthathe had a disability, not would it have been a factor in the tetmination of his membership privileges: (Id.) Plaintiff alleges that the statements made by Defendant Nauseef in this lettet to the NCDOJ wete slanderous and defama;tory. (-,\m. Compl. fl 73.) Plaintiff seeks relief from Defendant Nauseef on three gtounds: defamation, intentional infliction of emotional distress and negligentinfliction of emotional distress. (1d.1[1190-108.) He also seeks punitive damages. (1d.ffi1,09-1,1,2.) In addition, Plaintiffs A.mended Complaint added a clair-:' of obstuction of justice against Defendant Nauseef for allegedly using his connections with the Durham County Sheriff to delibetately evade service of process. (1d.ffi1,1,3-1,22.) Defendant Nauseef was not petsonally served, r^thet the summons and Complaint were hand delivered to an employee at his law office by a process server unknown to Defendant Nauseef. (Affìdavit of Roben J. Nauseef tflf 6, 8, Docket Entry 21, at20.) III. DISCUSSION A. Plaintiffls Motions for Entry of Default and for DefaultJudgment Etttty of default is apptopriate where "aparty against whom a judgment for affrmative telief is sought has failed to plead ot otherwise defend." Fed. R. Civ. P. 55(a). ,{.dditionally, pursuant to Federal Rule of Civil Ptocedute 55(bX2), â court may enter a default judgment against a ptopetly served defendant allegations who fails to plead or otherwise defend against the in the complaint. Fed. R. Civ. P. 55(bX2). The Fourth Circuit has "repeatedly exptessed a strong prefetence that, as a genetalmatter, defaults be avoided and that claim and defenses be disposed of on their merits." Co//eton Preþaratory Acad., Inc. u. Hooaer Uniuerca/, Inc., 4 616 F.3d 41,3,417 (4th Cir. 201,0). "A court must 'exercise sound judicial disctetion in deciding whethet to enter default judgment, and 'the moving p^tty is not entitled to default judgment ^s a m^ttet of tþht." Reytolds Innouations, Inc. u. E-CigaretteDirect LJ,C,851 F.Supp . 2d 961,962 (IVI.D.N. C. 201,2) (citation omitted). Hete, Plaintiff has moved for an entry of default and fot default judgment against Defendant Nauseef fot failing to answet Plaintiffs Complaint within the twenty-one period ptescdbed by Federal Rule of Civil Procedure 12(a)(1XAXÐ. (Docket Errtty Docket Errtty 34.) Plaintiff argues that although Defendant Nauseef filed a day 31.; see also motion to dismiss within the twenty-one day window, the failure to also file an ansv/er to Plaintiffs alegations entitles him to a default judgment. (Docket Er,try 31, at 1,.) Plaintiffls atgument is unfounded and runs contr Fedetal Rules of Civil Ptocedute . See ^ry to procedure prescribed in the Fed. R. Civ. P. 12(Q$). Under Rule 12(a)(4), if p^rty ^ files a pre-ânswer motion, the paty's ansv/er is not due until fourteen days after notice of the coutt's denial of the motion, and the "timely filing of a motion to dismiss suspend[s] [the party's] obligation to file an answer." Nþric,k u. U.5.,559 Fed. App". 245,246 (4th Cir. 201,4); ¡ee al¡o Ca¡tillo u. School Bd. of Broward Coangt Fla., 645 Fed. Appx . 966 (1,1,th Cir. 2016). This Cout had not ded on Defendant Nauseefls pending and timely filed Motion to Dismiss, thetefote no answet to Plaintiffs Amended Complaint is yet due. Thus, the Coutt should deny Plaintiffs Motions fot E.ttty of Default and fot DefaultJudgment. Milh u.I-,ocklear,No. 5:1,2-CT-3007-FL, 201,4WL 41,623g1,,at x3 (E.D.N.C. Aug. 20,201,4)(unpublished) ("Because defendant timely tesponded to plaintiffs complaint by fìling a motion to dismiss, plaintiffs 5 motions fot entry of default ate [denied]."). The Cout will now address Defendant Nauseefs Motion to Dismiss. B. Defendant NauseePs Motion to Dismiss Defendant Nauseef argues that dismissal is appropriate pursuant to Federal Rule of Civil Ptocedutes 12þ)(2) and (5) for lack of petsonal judsdiction based on ân insufficient service of ptocess. "Befote a fedenlcourt may exercise personâl jurisdiction over a defendant, the procedural tequirement of service of summons must be satisfied." Omni Capitallnt'|, Ltd. V. Radoþ lY/olf dz Co., Ltd.,484 U.S. 97, 1,04 (1987) (internal quotations omitted). Plaintiff bears the bruden of establishing that the service of process has been performed in accordance with the tequirements of Fedetal Rule of Civil Procedute 4. Plant Genetic Seeds,933 F. Supp. 579, 526 (À4.D.N.C. 1996) (citation 51s., N.V. u. Ciba omitted). "In determining whether the plaintiff has satisfied his butden, the technical tequitements of service should be constued liberally as long as the defendant had actual notice of the pending suit." Elkins u. Broome,2'1.3 F.R.D. 273,275 (À4.D.N.C.2003) (citing Karls¡on u.Røbinoøit7,318 F.2d 666,668-69 (4th Cir. 1'963)). "\ühen there is acítaI notice, everT technical violation of the rule or failure of stdct compliancemay notinvalidate the service of process. But the rules are there to be followed, and plain tequitements fot the means of effecting service of ptocess may not be ignored." Annco, Inc. y. Penrod-Starffir Bldg. S1ts., 1nc.,733 F.2d 1087, 1039 (4th Cir. 1934). Hete, Defendant Nauseef argues that this Court lacks personal jurisdictional over him because Plaintiff failed to obtain effective service of process. (Docket Entry Federal Rule of Civil Ptocedure 4(e) ptovides that 21, at 5-7.) service upon an individual may be accomplished by eithet personally deliveting a copy of the sununons and the complaint to the 6 individual, "leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there," or delivering them to "^fl agent authodzed by appointment or by law to teceive service of ptocess." Fed. R. Civ. P. 4(e). The rule also provides that service of process may be accomplished pursuant to the laws of the state in which the district court resides. fot all ptactical process are vittually identical Elkins,213 F.R.D . ^t Id. "North Catolina's tequirements fot service purposes with the tequitements of of Rule 4." 27 5. Plaintiff argues that Defendant Nauseef received propet service when ^ copy of the summons and the complaintwete hand deliveted to an employee of his law fum by the process server on a daywhen Defendant Nauseef was not present at his office. (Docket Entry 30 at 3.) In making this argument, Plaintiff relies upon the holdingtn Storel u. Hailey in which the North Carohna Coutt of Appeals found sufficient service of process when complaint and summons were left with ^ ^ copy of the pattner at the law office where the defendant's âttorn€y and appointed tesident process agent wotked. 114 N.C. App. 173,1,80,441. S.E.2d 602,606 (1,994). That court's reasoning centeted on the fact that the registered agent was in a pattnetship wrth the attorney who actually received the documents, and pursuant to Notth Carolina Rule of Civil Ptocedure 40(7)(a), service on a general or limited partnership can be can be accomplished by deliveting a copy partner. Id., 44'1, S.E.2d ^t of the summons and complaint to any general 606. Storel is distingurshable from the case at hand because there is no evidence to suggest that the individual employee who took the summons and complaint from Plaintiffs ptocess server was Defendant Nauseefs process agent 7 ot his law pattnet. (See AfÇtdavit of Service, Docket Entry 8 at 1.) The Affidavit of Service metely states that the process server delivered "Summons to Robet Nauseef at 1,21, E Patish Street, Durham, NC. 27701." (d.) Under North Carolina law, to demonstate sufficient ptoof of petsonal service when a defendant is not personally served with the complaint and summons, the process server must "state in such afftdavttwhen, whete and with whom such copy was left." N.C.G.S. S 1-75.10(b). "The filing of an afîtdavtt of service that complies with the tequitements set out in [N.C.G.S. S 1-75.10] creates a rebuttable presumption of valid service." Kahiha u. Brunson,234 N.C. App. 142,1,47, 758 S.E.2d 648,652 Q01,4) (emphasis added). Here, rather than state the name of the employee who took the complutt and summons and the time at which they were delivered, the Affidavit erioneously implies that personal sewice was effectuated petsonally and ditectly upon Defendant Nauseef. (Docket Etttry 8 at 1.) As such, Plaintiff has failed to comply with the service of ptocess tequirements. Thetefote, this Court lacks personal judsdiction ovet Defendant Nauseef and the Amended Complaint should be dismissed against him. See e.g., Friedman u. Estate of Presrcr,929 F.2d 1,1,51,, 1158 (6th Cu.1,991);RoylI-^øæ PaþerIØorks,Inc. a. Pest-Gaard Pr0d.,Lnc.,240F.2d81,4,816 (5th Clr. 1957) stahlte ("[]t is settled law that, without personal service of process in accordance with of the United States or the law of the state in which the suit is filed, the court a [i]s without jurisdiction to render a personal judgment against [defendant]."). On altetnative gtounds, Defendant Nauseef atgues that dismissal is putsuant to Federal Rule of Civil Procedute 12þ)(6)., t apptopriate a modon to dismiss putsuant to Rule Neithet Plaintiffs response nor his amended response to Defendant Nauseefs Motion to Dismiss addtess the 12þ)(6) grounds fot dismissal set forth in Defendant's Motion to dismiss. (Jea Docket Entdes 30, 33.) Fot the reâsons set forth tn Kinetic Concepts, Inc. a. ConaaTec Inc., No. 1:08CV918,201.0 I 12þ)(6) tests the sufficiency of the complaint. Edwards u. Citjt of Goldsbom, 178 F.3d 231,243 (4th Cit. 1,999). A complaint that does not "contain sufficient facttal matter, accepted âs true, to 'state a claim to relief that is plausible on its f^ce"' must be dismissed. Ashcroft u. Iqbal, 556 U.S. 662, 678 Q009) (quoting BellAtlantic u. Twombþ,550 U.S. 544, 570 Q007)). ",{. claim has facial plausibility when the plaintiff pleads factual content that allows the coutt to dtaw the reasonable inference that the defendant is liable for the misconduct." Id.; rce also Simmons United Mortg. and Laan Inu., I I (, u. 634 F.3d 754,768 (4th Cir. 201,1) ("Or a Rule 12(bX6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to telief that is plausible on its face.") (citations and quotations omitted). The "court accepts all well-pled facts as tue and construes these facts in the light most favotable to the plaintiff," but does not consider "legal conclusions, elements of a cause of action, and bare assertions devoid of factual enhancementt] . . unwarranted inferences, unreasonable conclusions, ot Ltd. a. Conwmerffiirlczry 1nc.,591 F.3d 250,255 (4th Cir. 2009) arguments." Nemet Cheurolet, (citations omitted). In other words, the standard requires a pla:nttff to articulate facts, that, when accepted as true, demonsttate the plaintiff has stated a clakn that makes it plausible he is entitled to telief. Francis u. Giaconelli,588 F.3d 186, 1,93 (4th Cir. 2009) (quoting lqbal, 556 U.S. at 678, and.Twombþ,550 U.S. at 557),. In the instant matter, Defendant Nauseefs Motion to Dismiss should also be granted because Plaintiffs Amended Complaint fails to state any claims fot which telief may be WL1,667285, at x6-8 &nn.1.2,13 ${.D.N.C. Apr. 23,201,0) (unpublished), Plaintiffs failure to address Defendant Nauseefs argument tegatding Rule 12þ)(6) is tantamount to a concession that generally wartants telief putsuant to Local Rue 7.3(<). Nevertheless, the Court will addtess this atgument on the merits. 9 granted. Plaintiffs first claim against Defendant Nauseef is fot defamation under North Carchna law, which requires that a plainlff ,"allege that the defendant caused irj,rry to the plaintiff by making false, defam^tory statements of ot concerning the plaintiff, which wete published to a third person." Bo1æ dz hley PIJ-C u. Cooper, 153 N.C.Á.pp. 25,29, 568 S.E.2d 893,897 Q002) (citation omitted). According to the Complaint, Defendant Nauseef made libelous statements about Plaintiff which were published to the NCDOJ. (Am. Compl. tltj91- 92.) \)7hile the Court must tteat the allegations of the Complaint as true when detetmining the sufficiency of the Complaint, such allegations must nevertheless entitle Plaintiff to relief under some legal theory. (S.D.\X/.Va. 1968) See l-nuender a. Unind Mine lØorþ.ers of Am., 285 F.Supp. 869, ("It is axiomatic that a complaint may be dismissed for failure to 87 4 state a claim . . . [*h.t] the disclosute of facts . . . necessatily defeatfs] the claim."). The statements made by Defendânt Nauseef in his letter were in response to an inquiry by the NCDOJ into the allegations made against his client, Millennium. (Docket Entry 1-5.) As such, the statements v/ere made in the course of a judicial proceeding and therefore "absolutely privileged and will not support a civil action for defamation, even malice." McManawal u. LDS Famiþ Serus., 1nc.,208 if are made with N.C. ,\pp. 569 (table) ,201,0 WL 54201,48, at*9 (Dec. 21,,201,0) (quoting/anesu. Coward,193 N.C. App.233,6665.8.2d877,879 (2008). Notth Catolina courts have adopted a broad definition of "judicial proceedings," and have construed the term to cover quasi-judicial ptoceedings where public administtative offices "investigate facts, ot ascettain the existence of facts, and draw conclusions from them, as a basis fot thek official action." Angel u. IYard,43 N.C. App. 288, 293,258 S.E.2d 788,792 (1,979) (quoting Black'¡ L.aw Dictionary 1.41.1, (4th ed. rev. 1968)). The NCDOJ (Consumer 10 Protection Division) is precisely this type of entity, as it ptovides a fotum to conduct investigations when complaints ate lodged against North Catolina businesses.3 Therefore, so long as Defendant Nauseefs statements made in his letter to the Division ate "suffìciently telated" to the soutce of the complaint, they are absolutely privileged. See e.g., Harrnan u. Belk, 165 N.C. App. 819, 825,600 S.E.2d 43,48 Q00a); Scott a. Statesuille Pþwood dv Veneer C0.,240 N.C. 73, 76,81. S.E.2d 746,1,49 (1954). The Court concludes that the statements dfuectly telate to the termination of Plaintiffs membership at Miliennium, which was the ptecise reason Plaintiff filed his complaint with the Consumet Protection Division. (Am. CompI.I65; also see Docket Entry 1,-4.) Because the allegations in the defamation claim fall within the scope of absolute immunity for statements made in judrcial proceed,ings, the Court should gtant the motion to dismiss with tespect to this claim. See e.g., MaTTucco a. North Carolina Bd. Of Medical Examinen,3l N.C. App.47,51,,228 S.E.2d 529,532(1,976) (extendingabsoluteptivilege ftom defamation to communications with the Board of Medical Examinets in the petformance of theit quasi-judicial duties). The Court should also dismiss Plaintiffs claims for intentional or negligent infliction of emotional distress and punitive damages against Defendant Nauseef. As these claims arise ftom the same conduct Plaintiff alleged in his defamation claim, allowing these claims to ptoceed would undermine the public policy grounds for allowing ptotection made in judicial ptoceedings. See McMaruaway 2010 lfl, Qr{otth Carolina immunity 3 See fot Cout of statements Appeals recognizing that in judicial proceedings to it 54201.48, at *'1.0 (citation omitted) "has pteviously applied absolute claims for bttp:/ /www.ncdoj.gouf Consumer.a:px Qast visited September 1,4,2017). "t1 of statements negligence ot intentional infliction of emotional disffess, where those claims arise out of stâtements made in the course of judicial proceedings and those statements wete also the basis of a defamation claim"); Jones, 193 N.C. App. at 235, 666 S.E.2d at 880 ("Were plaintiff allowed to pursue the additional claims . . ., the privilege we have held protects defendant from an action fot defamation would be eviscetated, and the public policy providing advocates the security to zealously pursue cases on behalf of their clients would be completely undermined."). Furthermore, these claims allege metely conclusory statements of law and arc devoid of any specific facts pertaining to the nature of Plaintiffs severe mental and emotional anguish. (See Am. Compl. lJI 96-108.) Thetefore, the,\mended Complaint fails to assert any factsthat would make these claims fot relief plausible on its face. Iqbal,556 U.S. at678;Twombþ,550 U.S. ^t570. Plaintiffs final claim for relief stems ftom the allegation that Defendant Nauseef influenced the Durham County Shedff to avoid effectuating service of process upon him. (Am. Compl. I'1T 1,1,3-1,22.) To state a cIaím fot common law obstruction of justice, Plaintiff must allege that an action was "intentionally undeftaken by the defendant for the purpose of obstucting, impeding, or hindeting the plaintiffs ability to seek and obtain alegaltemedy. . . ." Blac/<barn u. Carbone,208 N.C. App. 519, 527,703 S.E.2d 788,795 (2010). The Amended Compliant metely alleges that the Durham County Sheriff did not serve Defendant Nauseef based on his connections to the orgatizatton. (Am. Compl. n20.) It does not expand upon Defendant Nauseefs alleged connections nor does it claim any affitmative action to obsttuct or impede justice on the patt of Defendant Nauseef, which is a bedrock element of the conunon law tott of obsttuction of justice. Blackburn,z08 N.C. App. 795; see at 527,703 S.E.2d at alto Broughton u. McClatcþt I\ewspapers, 1nc.,161 N.C. App. 20, 33, 588 S.E.2d 20,30 1,2 Q003) ("p]laintiff presented no evidence that her case was in some way judicially prevented, obstructed, impeded ot hindered by the acts of defendants. Thete is no evidence as to the disposition of that action or ^rLy showing that fdefendant's conduct] advetsely impacted that case."). As such, this claim against Defendant Nauseef should also be dismissed. IV. CONCLUSION Based upon the evidence presented in this case, Plaintiff tailed to ptopetly effectuate service of process on Defendant Nauseef, therefote depdving the Court of petsonal jurisdiction over him. Alternatively, Plaintiff has failed to plausibly state a claim upon which relief may be granted. For such reasons, IT IS HEREBY RECOMMENDED that Defendant Nauseefs Motion to Dismiss (Docket E.rtty 19) be GRANTED and Plaintiffs Motions fot Entry of Default and fot DefaultJudgment (Docket Entdes 31,,34) be DENIED. U September 75,2077 Dwham, Notth Caroltna 1,3 oe L. Webstet States Magistrate Judge

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