Brown v. Charlotte Rentals LLC et al
Filing
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ORDER granting in part and denying in part 8 Motion to Dismiss. Signed by Chief Judge Frank D. Whitney on 07/28/2015. (Pro se litigant served by US Mail.)(jlk)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:15-cv-0043-FDW-DCK
TERRY L. BROWN,
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Plaintiff,
vs.
CHARLOTTE RENTALS LLC and
CEDRIC MCCORKLE,
Defendants.
ORDER
THIS MATTER is before the court on Defendants’ Cedric McCorkle and Charlotte Rentals
LLC Motion to Dismiss (Doc. No. 8) for lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1), insufficient process pursuant to Federal Rule of Civil Procedure
12(b)(4), insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5), and
failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure
12(b)(6). For the reasons stated below, Defendants’ motion is DENIED IN PART and GRANTED
IN PART.
I. BACKGROUND
Plaintiff, who is proceeding pro se, is a North Carolina resident who brought this action
to recover damages resulting from alleged housing discrimination against him by Defendants on
account of his disability. (Doc. No. 1). Plaintiff suffers from incomplete paraplegia and is
confined to a wheelchair. (Doc. No. 3). Defendant Cedric McCorkle is a lending agent
employed by Charlotte Rentals from whom Plaintiff is renting his residence. (Doc. No. 1).
Plaintiff’s complaint alleges that Defendants’ failure to provide a ramp for wheelchair
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access to his residence is actionable discrimination. (Doc. No. 1). Although Plaintiff’s
complaint does not suggest a specific legal theory that entitles him to relief, several of the
pleadings in the record refer to the Fair Housing Act (“Title VIII”) and the Americans with
Disabilities Act (“ADA”).1 (Doc. No. 8). Plaintiff filed a housing discrimination complaint
with the U.S. Department of Housing and Urban Development (“HUD”) which was accepted on
December 4, 2014 and, pursuant to 42 U.S.C. § 3610(f), was referred to the CharlotteMecklenburg Community Relations Committee for investigation. (Doc. No. 1). Plaintiff
received a letter from HUD, dated December 4, 2014, informing him that the CharlotteMecklenburg Community Relations Committee would be responsible for resolving his complaint
and that he may file a civil lawsuit in federal district court pursuant to 42 U.S.C. § 3613. (Doc.
No. 1).
Charlotte Rentals has previously filed two claims against Plaintiff in Mecklenburg
County small claims court seeking rent payments. (Doc. No. 8). According to Defendants’
Motion to Dismiss in the instant case, Plaintiff responded to both previous claims with a
counterclaim regarding the same allegation as the instant case. (Doc. No. 8, 8-4). In the first
action, the parties voluntarily dismissed without prejudice on June 18, 2014. (Doc. No. 8). In
the second action, 14CVM26190, Plaintiff again voluntarily dismissed his counterclaim and
accepted an out-of-court settlement. (Doc. No. 8, 8-4). The record is unclear as to the
circumstances of that settlement and the legal implications of such cannot be discerned at this
time. On January 23, 2015, Plaintiff filed this suit arguing that Defendants’ failure to provide a
wheelchair ramp was discriminatory on account of his disability. (Doc. No. 1). Defendants
argue that they are not obligated to install a ramp for wheelchair access and filed a motion to
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Although there is mention of the ADA in the pleadings, it will not be developed further because the Court finds
that the ADA primarily governs employment discrimination and is not relevant to the instant case.
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dismiss on those grounds. (Doc. No. 8).
II. STANDARD OF REVIEW
When considering a motion to dismiss involving pro se parties, the court construes the
pleadings liberally to ensure that valid claims do not fail merely for lack of legal specificity. See
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see generally Roseboro v. Garrison, 528
F.2d 309 (4th Cir. 1975). This liberal construction, however, need not extend to outright
advocacy for the pro se plaintiff. See Gordon, 574 F.2d at 1151.
Because the specific legal theories upon which Plaintiff is basing his complaint are not
clear from the pleadings, the court will, in the light most favorable to Plaintiff and in observance
of his pro se status, liberally construe the complaint and address the issues that this factual
scenario give it reason to consider. Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Haines
v. Kerner, 404 U.S. 519, 520 (stating that pro se pleadings are held “to less stringent standards
than formal pleadings drafted by lawyers . . . .”).
III. ANALYSIS
A. Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal where the court lacks
jurisdiction over the subject matter of a lawsuit. Original subject matter jurisdiction exists in
federal district court when, among other specific scenarios expressed in Title 28 of the US Code,
the complaint raises a federal question under 28 U.S.C. § 1331 or the requirements for diversity
jurisdiction are met under 28 U.S.C. § 1332. Subject matter jurisdiction is a threshold issue
without which the Court lacks the competency or ability to do anything other than dismiss the
case. The lack of such jurisdiction may be raised at any time by a litigant or the court sua
sponte. Mansfield, C. & L. M. RY. CO. v. Swan, 111 U.S. 379, 382 (1884).
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In a disability discrimination case, federal district courts have subject matter jurisdiction
over Title VIII claims pursuant to 42 U.S.C. § 3613(a)(1)(A) which states, in pertinent part, that
“[a]n aggrieved person may commence a civil action in an appropriate United States district
court . . . not later than 2 years after the occurrence or the termination of an alleged
discriminatory housing practice . . . .” An “aggrieved person” includes any person who “claims
to have been injured by a discriminatory housing practice. . . .” 42 U.S.C. § 3602(i)(1). Further,
although Title 42 of the US Code lays out an administrative enforcement scheme that a claimant
may pursue for relief, it is not necessary that the claimant exhaust or even pursue such
administrative remedies prior to filing a civil action in federal district court. 42 U.S.C. §
3613(a)(2).
Defendants argue that this Court lacks subject matter jurisdiction because this case is
prematurely before this Court due to the administrative enforcement scheme that is available to
aggrieved persons under the Fair Housing Act. (Doc. No. 8). They contend that Superior Court
in Mecklenburg County is the appropriate forum for this action according to the letter from the
Community Relations Committee dated February 11, 2015. (Doc. No. 8-1). Although Superior
Court is indeed a possible forum for this action, it is not the only proper forum for adjudication.
See 42 U.S.C. § 3613(a)(1)(A). Therefore, Defendants’ argument that Superior Court is the only
proper forum for this claim is without merit. Any other conclusion would be clearly inconsistent
with the plain and expressed language of the above cited sections of Title VIII. As stated above,
although a claimant may seek these administrative remedies under Title VIII, he is not required
to pursue such or to exhaust the administrative remedies before seeking redress in the federal
district courts. 42 U.S.C. § 3613(a)(2). Further, the letter to Plaintiff from HUD, dated
December 4, 2014, to which Defendants make no reference, expressly states that Plaintiff has the
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right to file a civil lawsuit in federal district court in addition to filing his complaint with the
Charlotte-Mecklenburg Community Committee. (Doc. No. 1). Accordingly, the Court finds that
subject matter jurisdiction is proper and Defendants’ motion to dismiss on that ground is
DENIED.2
B. Insufficient Process and Insufficient Service of Process
Federal Rule of Civil Procedure 12(b)(4) and 12(b)(5) provide for dismissal where a
litigant fails to adequately follow the rules of process in serving pleadings. Process may be
insufficient if the forms are technically deficient (e.g., wrong name) or otherwise deficient in
ways that are unrelated to service of the pleadings. Deficiencies in service, as opposed to
process, relate to the actual service of the pleadings upon the parties.
The formal requirements for service of process in the federal courts are laid out in
Federal Rule of Civil Procedure 4. Rule 4(c)(1) provides, in pertinent part, that a summons must
be served with a copy of the complaint and, under Rule 4(a)(1)(A)-(B), a summons must name
the parties and be directed to the defendant. Regarding service of pleadings, an individual or
partnership may be served in a manner “following state law for serving summons in an action
brought in courts of general jurisdiction in the state where the district court is located or where
service is made . . . .” Fed. R. Civ. P. 4(e)(1); Fed. R. Civ. P. 4(h)(1)(A). Accordingly, the
applicable North Carolina Rules of Civil Procedure regarding service of process state that service
upon an individual may be made “[b]y mailing a copy of the summons and of the complaint,
registered or certified mail, return receipt requested, addressed to the party to be served, and
delivered to the addressee.” N.C. Gen. Stat. § 1A-1, Rule 4(j)(1)(c). Further, service may be
42 U.S.C. § 3613(a)(1)(2) also states that if the Secretary or a State or local agency has obtained a “conciliation
agreement with the consent of an aggrieved person, no action may be filed . . . except for the purpose of enforcing
the terms of such an agreement.” There is no indication in the record that such an agreement exists in this case.
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made upon a partnership “by mailing a copy of the summons and of the complaint, registered or
certified mail, return receipt requested, addressed to any general partner, or to any attorney-infact or agent authorized by appointment or by law to be served or to accept service of process in
its behalf . . . .” N.C. Gen Stat. § 1A-1, Rule 4(j)(7)(a).
It is important to note that proceeding pro se ordinarily will not excuse failure to properly
accomplish service or a failure to understand the rules. See McNeil v. United States, 508 U.S.
106, 113 (1993) (“[W]e have never suggested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who proceed without counsel.”).
However, “[w]hen the process gives the defendant actual notice of the pendency of the action,
the rules, in general, are entitled to a liberal construction.” Armco, Inc. v. Penrod-Stauffer Bldg.
Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). Accordingly, “every technical violation of the
rule or failure of strict compliance may not invalidate the service of process.” Id.
Further, and especially relevant to the instant case, the Fourth Circuit has recognized that
“[i]t has long been the rule in this circuit that service of process is not legally defective simply
because the complaint misnames the defendant in some insignificant way.” Morrel v.
Nationwide Mut. Fire Ins. Co., 188 F.3d 218, 224 (4th Cir. 1999); see also United States v. A.H.
Fischer Lumber Co., 162 F.2d 872, 873 (4th Cir. 1947) (citations omitted) (“If [the pleading]
names [the parties] in such terms that every intelligent person understands who is meant . . . it
has fulfilled its purpose; and courts should not put themselves in the position of failing to
recognize what is apparent to everyone else. . . . As a general rule the misnomer of a corporation
in a notice, summons . . . or other step in a judicial proceeding is immaterial if it appears that [the
corporation] could not have been, or was not, misled.”) (internal citations and quotations
omitted).
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i. Insufficient Process
Regarding insufficient process, Defendants argue that Plaintiff’s misnaming of Defendant
SFRH Charlotte Rental, LP as “SFRH Charlotte Rentals, LLC” qualifies as insufficient process
and warrants dismissal. (Doc. No. 8). Nevertheless, under the legal standards laid out in Morrel
and A.H. Fischer, the Court finds that the pluralization of the word “Rental” and incorrect
business designation of “LLC” instead of the proper “LP” are insignificant errors and do not
prevent process from being operative. There are no assertions in the record that Defendants
were, in any way, prejudiced or misled by the misnomer, and the fact that actual notice was
achieved further supports this position. In this case, although technically incorrect, the process
“fulfilled its purpose” of alerting Defendants of the pendency of the action and is sufficient under
the law. United States v. A.H. Fischer Lumber Co., 162 F.2d at 873.
Defendants also argue that Plaintiff’s failure to sign his complaint was a violation of
Federal Rule of Civil Procedure 11(a) which requires that “[e]very pleading...be signed by at
least one attorney . . . or by a party personally if the party is unrepresented.” Fed. R. Civ. P.
11(a); (Doc. No. 8). Additionally, Rule 11 requires that the paper state the signer’s address, email address, and telephone number. Fed. R. Civ. P. 11(a). In response to several Roseboro
notices, Plaintiff has filed a signed complaint including the required information to satisfy Rule
11(a). (Doc. No. 14). Therefore, Defendants’ motion to dismiss for insufficient process is
DENIED.
ii. Insufficient Service of Process
Defendants also argue that Plaintiff failed to properly effectuate service and that this
improper service warrants dismissal. Given Plaintiff’s IFP status, service was ordered to be
made by the U.S. Marshals Service. (Doc. No. 4). Because only one address was provided by
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Plaintiff, two copies of the summons and complaint were mailed via certified mail to said
address, return receipt requested, in one envelope for service upon both Cedric McCorkle and
Charlotte Rental. (Doc. No. 8). However, both return receipts were signed by “Katie Brown,”
indicating that she received service on behalf of both defendants. (Doc. No. 6, 7).
In light of the liberal construction given to Federal Rule of Civil Procedure 4 when actual
notice is achieved, the Court finds that the alleged insufficiency does not warrant dismissal as to
Charlotte Rental LP. However, the insufficiency is more problematic in regards to the individual
defendant, Cedric McCorkle. As stated above, service upon an individual must be made
personally, left at the defendant’s dwelling house, or delivered to an agent appointed by the
individual to receive service. In this case, the summons and complaint were sent to Cedric
McCorkle’s place of employment, and received and signed by Katie Brown. Nothing in the
record indicates that Katie Brown is Cedric McCorkle’s agent authorized to receive service.
Therefore, the Court finds that Defendant McCorkle was not properly served. Accordingly,
Defendant’s Motion to Dismiss on these grounds is DENIED as to Charlotte Rental and
GRANTED as to Cedric McCorkle.
C. Failure to State a Claim
A complaint will survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss
for failure to state a claim if it contains facts sufficient to “state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 554, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw a reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 663. Additionally, when deciding a 12(b)(6) motion, the
court must accept the facts in the complaint as true, viewing “the facts in the light most favorable
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to the plaintiff, but not accept the legal conclusions drawn from the facts, and need not accept as
true unwarranted inferences, unreasonable conclusions, or arguments.” Jordan v. Alternative
Res. Corp., 458 F.3d 322, 338 (4th Cir. 2006) (internal citations, alterations, and quotations
omitted). Although “detailed factual allegations are not required, a complaint must assert factual
allegations which raise a right to relief above the speculative level.” Finley v. SageNet LLC.,
No. 3:09-CV-123-FDW, 2009 WL 1850958, at *1 (W.D.N.C. June 29, 2009) (citing Bell Atl.
Corp. 550 U.S. at 555) (internal quotations omitted).
Plaintiff claims that Defendants failed to install a ramp for wheelchair access into his
unit. (Doc. No. 1). Plaintiff alleges that this conduct is actionable discrimination on the basis of
his disability. (Doc. No. 1). The Fair Housing Act prohibits housing discrimination on the basis
of disability and requires owners of housing facilities to allow tenants with disabilities to make
reasonable access-related modifications to their private living space and common use spaces.
Further, it requires that new multifamily housing with four or more units be designed and built to
allow access for persons with disabilities. See 42 U.S.C. §3601 et. seq.3
The Court does not address the merits of Plaintiff’s claim at this state of litigation.
However, when construed liberally, the facts, assumed as true and in the light most favorable to
the plaintiff, nudge Plaintiff’s claim of housing discrimination from conceivable to plausible.
Although Plaintiff’s specific theories of relief are not entirely clear, the Court finds that there
may be a cognizable claim within the Plaintiff’s factual allegations. Accordingly, Defendants’
motion to dismiss for failure to state a claim is DENIED.
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The Court does not address the merits of specific Fair Housing Act claims, as neither party has fully raised or
briefed the issue, but does note that the Fair Housing Act does not require a landlord to pay for changes to a
residence. The FHA simply requires that landlord allow tenants with disabilities to make reasonable access-related
modifications to their private living space, as well as to common use spaces. See 42 U.S.C. § 3604(f)(3)(A).
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IV. CONCLUSION
For the aforementioned reasons, the Court finds that subject matter jurisdiction is proper
and that Plaintiff has stated a claim upon which relief can be granted. Further, the Court finds
that process was sufficient and service of process was sufficient as to Defendant Charlotte
Rental, LP. However, the Court finds that Plaintiff did not properly serve the individual
defendant, Cedric McCorkle, and cannot find in the record that actual notice was achieved as to
him. For those reasons, Defendants’ Motion to Dismiss is DENIED IN PART and GRANTED
IN PART. The Clerk is respectfully directed to mail a copy of this order to Mr. Terry Brown at
3209 Erskine Drive, Charlotte, NC 28205.
IT IS SO ORDERED.
Signed: July 28, 2015
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