Booth v. Trident Literacy Association Inc

Filing 11

ORDER RULING ON REPORT AND RECOMMENDATION for 5 Motion to Dismiss, filed by Trident Literacy Association Inc. The Court DECLINES TO ADOPT the Report and Recommendation of the Magistrate Judge (Dkt. No. 10), DENIES the motion to dismiss (Dkt. No. 5), and DEEMS service waived in this matter. Defendant shall answer the complaint within fourteen days of the date of this Order. Signed by Honorable Richard M Gergel on 8/8/2016. (sshe, )

IN THE UNITED STATES DISTRICT COltRll'EO CLERK'S OFfiCE
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
lOib AUG -8 I A 11= 5 t
Ronald Booth,
Plaintiff,

v.
Trident Literacy Association, Inc.,
Defendant.

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ORDER

This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that the Court grant Defendant's motion to dismiss for failure to serve within
the period provided by Rule 4(m) of the Federal Rules of Civil Procedure. The Court declines to
adopt the Report and Recommendation, denies Defendant's motion, deems service waived, and
directs Defendant to answer the complaint within fourteen days of the date of this Order.

I.

Legal Standard
A.

Report and Recommendation of the Magistrate Judge

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). This Court is charged with making
a de novo determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court
may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." Id. Where the plaintiff fails to file any specific objections, "a district court need not
conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face

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of the record in order to accept the recommendation," see Diamond v. Colonial Life & Accident

Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted), and this Court is not
required to give any explanation for adopting the recommendation ofthe Magistrate Judge, Camby

v. Davis, 718 F.2d 198 (4th Cir. 1983).

B.

Motion to Dismiss

Under Rule 12(b)(5) of the Federal Rules of Civil Procedure, a defendant can move to
dismiss a complaint where service of process failed to comply with the requirements of Rule 4 of
the Federal Rules of Civil Procedure. Rule 4(m) requires service of process within ninety days
after the complaint is filed. If service does not occur within that period, the court must dismiss the
action unless the plaintiff shows good cause for the failure, in which case he court must extend the
time for service. Fed. R. Civ. P. 4(m).
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if
the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the
legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits
of the claim, or the applicability of defenses. . .. Our inquiry then is limited to whether the
allegations constitute 'a short and plain statement of the claim showing that the pleader is entitled
to relief.'" Republican PartyofNC. v. Martin, 980 F.2d 943,952 (4th Cir. 1992) (quotation marks
and citation omitted). In a Rule 12(b)(6) motion, the Court is obligated to "assume the truth of all
facts alleged in the complaint and the existence of any fact that can be proved, consistent with the
complaint's allegations." E. Shore Mkts., Inc. v. JD. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th
Cir. 2000). However, while the Court must accept the facts in a light most favorable to the non­
moving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or
arguments." Id.

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To survive a motion to dismiss, the complaint must state "enough facts to state a claim to
reliefthat is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although
the requirement of plausibility does not impose a probability requirement at this stage, the
complaint must show more than a "sheer possibility that a defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the
pleading "allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id.

II.

Discussion
Plaintiff alleges that Defendant employed him from July 21, 2014 to approximately July

30, 2014, when he was terminated because of his religion in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq.. (Compl.

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1.3, 2.8, 3.1-3.4.) Plaintiff further

alleges that, before filing his complaint, he received a Right to Sue notice from the Equal
Employment Opportunity Commission on September 8, 2015, and that this action, filed on
December 3,2015, was filed within ninety days of that notice. (Id.

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1.4.). Amendments to the

Federal Rules of Civil Procedure reducing the time for service from 120 days to 90 days took effect
on December 1,2015. Because this action was filed on December 3,2015, Plaintiff had ninety
days-i. e., until March 2, 20 16-to serve the summons and complaint on Defendant.}
On December 3, 2015, Christian Steinmetz of Gannam Gnann & Steinmetz (in Savannah,
Georgia), then defense counsel in this matter, contacted Plaintiffs counsel and offered to waive
service of process. (EmailsBetweenCounsel.Dkt.No. 6-1.) On December 10,2015, Plaintiffs

} The Court's docket reflects a service due date of March 7, 2016 (Dkt. No. 1.), which, as the
Magistrate Judge notes, is incorrect under Rule 4(m) ofthe Federal Rules of Civil Procedure. (See
R. & R. 2 n.4, July 15, 2016, Dkt. No.1 0.) Plaintiff does not appear to have relied on this incorrect
date, as service was not attempted before March 7.

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counsel agreed to send waiver of service documents to counsel as soon as possible. (ld) Those
documents were sent on December 16, 2015 by mail, with courtesy copy byemail. (ld) That
same day, Mr. Steinmetz replied via email that the firm of Turner Padget in Charleston, South
Carolina had replaced Gannam Gnann & Steinmetz as defense counsel in this matter and that "all
further correspondence" should be directed to that firm. (ld) Several attorneys at the firm of
Turner Padget were copied on that reply, which included copies of Plaintiff s request for service
waiver documents with the comment "note that 1 am forwarding that which you sent me to them
via attaching the same to this email." (ld. ) Plaintiffs counsel acknowledged the message that
day, replying, "I'll look for a response from Ms. Ralephata [Turner Padget shareholder and lead
defense attorney]." (ld)
Thereafter, on March 4, 2016 (two days after the time for service lapsed under the new
Rule 4(m) but four weeks before such time would have lapsed had the complaint been filed on
Monday, November 30, 2015 instead of Thursday, December 3, 2015), Plaintiffs counsel wrote
to Defendant's former counsel: "I never got a response from Turner [P]adget on this case. I am
about to go ahead and serve. 1 just wanted to check with you before I incur costs that would be
taxed against your client." (ld) Former defense counsel responded, "I suggest you contact Nosizi
Ralephata one more time before serving, as I recall she was prepare [d] to save you all costs as to
that." (ld) Ms. Ralephata and another Turner Padget shareholder attorney were copied on that
email. (ld)
On March 16, 2016, Ms. Ralephata filed a motion to dismiss the complaint for lack of
sufficient service, arguing that service had not been completed in the ninety-day period provided
by Rule 4(m) of the Federal Rules of Civil Procedure. (Mot. Dismiss, Dkt. No.5.) Defendant
moves for dismissal pursuant to Rule 12(b)(5) (insufficient service of process) and, alternatively,

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Rule 12(b)(6) (failure to state a claim) of the Federal Rules of Civil Procedure. In opposition,
Plaintiffs counsel argues, "It appears, from the Defendant's motion to dismiss, that the failure to
accept service and agree to the waiver was a tactic rather than an oversight. The undersigned, to
be frank, relied on Mr. Steinmetz's word that service would be waived, and the belief that a new
attorney would uphold the original attorney's promise. This is, of course, a matter of honor, and
not one of procedure." (Resp. Opp'n Mot. Dismiss 2, Mar. 31, 2016, Dkt. No.6.) Plaintiff
concedes, "Technically and procedurally [defense counsel] are correct." (Id.)

It is obvious from the record that Plaintiffs counsel thought he had 120 days, not 90 days.
Otherwise, he would not have waited until two days after the 90-day period lapsed (but four weeks
before the former 120-day period lapsed) to follow up about the service waiver.

Even his

opposition to Defendant's motion refers several times to a 120-day period. (/d. at 1, 4, 7.) Defense
counsel plainly suspected as much and deliberately chose to ignore the communications of
December 16, 2015 as a litigation tactic. There is no other explanation for refusing to waive
service, a decision that potentially exposed Defendant to taxed costs and a reduced time in which
to answer the complaint. Fed. R. Civ. P. 4(d)(2)-(3).
"Generally, when service of process gives the defendant actual notice of the pending
action, the courts may construe Rule 4 liberally to effectuate service and uphold the jurisdiction of
the court." O'Meara v. Waters, 464 F. Supp. 2d 474, 476 (D. Md. 2006) (citing Armco, Inc. v.

Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984); Karlsson v. Rabinowitz, 318
F.2d 666, 668 (4th Cir. 1963». Defendant admits that it had actual notice of this action (Mot.
Dismiss 8 ("Defendant was aware of the Complaint"»; Defendant's previous counsel agreed to
waive service, though the waiver was never perfected (Dkt. No.6-I). The Court therefore deems
service waived in this action. See Bank ofAm., N.A. v. Kissi, Civ. No. 12-3266-PWG, 2013 WL

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4804824, at *9 (D. Md. Sept. 6, 2013) (deeming service waived where the defendant "had actual

notice of the action" and "adopted a statement that she was waiving service"). Defendant cannot
altogether avoid Plaintiff's complaint by agreeing to waive service but then failing to respond to
communications regarding service as a litigation tactic. Nor may new counsel by mere silence
disavow promises that she knows were made by previous counsel. This Court takes a dim view
of sharp practice.
Defendant's alternative argument for dismissal-that the complaint fails to state a claim
upon which relief may be granted-is manifestly meritless. Defendant asserts that Plaintiff fails
to state a claim because Plaintiff was, according to Defendant, indisputably terminated for proper
cause. (Mot. Dismiss 9-13.) That is an argument for summary judgment. The Court cannot
dismiss an action based on pre-answer factual allegations made in a defendant's motion
memorandum, nor can it do so by taking "notice" of parties' factual claims as repeated in local
newspapers. (Cf, id 10-12 & Ex. E (arguing that "the Complaint must be dismissed because
Plaintiff voluntarily disseminated into the public domain information validating that his
termination was for cause" and attaching a Post and Courier newspaper article in support of that
assertion).) Defendant must answer the complaint if it wishes to contest the facts as alleged by
Plaintiff. The Court therefore denies Defendant's motion to dismiss for failure to state a claim.
Defendant shall answer the complaint within fourteen days of the date of this Order. Fed. R. Civ.
P. 12(a)(4)(A).

III.

Conclusion
For the forgoing reasons, the Court DECLINES TO ADOPT the Report and

Recommendation of the Magistrate Judge (Dkt. No. 10), DENIES the motion to dismiss (Dkt. No.
5), and DEEMS service waived in this matter. Defendant shall answer the complaint within
fourteen days of the date of this Order.
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AND IT IS SO ORDERED.

ergel
istrict Court Judge

August~

,2016
Charleston, South Carolina

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