Akbar-Hussain v. ACCA, Inc.
Filing
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MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 11/29/2016. (c/s to plaintiff)(dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
SELAI AKBAR HUSSAIN,
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Plaintiff,
v.
ACCA, INC.,
Defendant.
M E M O R A N D U M
1:16cv1323 (JCC/IDD)
O P I N I O N
This matter is before the Court on the Defendant’s
Motion to Dismiss for Improper Service of Process and Failure to
State a Claim.
[Dkt. 4.]
For the following reasons, the Court
will deny Defendant’s motion.
Additionally, the Court will
order Plaintiff to file a more particularized Complaint.
I. Background
This case is brought by pro se Plaintiff Selai AkbarHussain (“Plaintiff”) against ACCA, Inc. (“Defendant” or
“ACCA”).
Plaintiff alleges that Defendant engaged in unlawful
discrimination and failed to make appropriate accommodations.
(Compl. [Dkt. 1-1] at 4.)
Plaintiff also alleges that she was
wrongfully terminated in retaliation.
(Id.)
Plaintiff was formerly employed by Defendant as a
Child Development Aide at ACCA.
On November 18, 2014, Plaintiff
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requested a mediation meeting with Maria-Isabel Balivian, ACCA’s
Director, and Jennifer Shaw, Plaintiff’s supervisor, to discuss
communication issues between Plaintiff and her co-teacher, Selam
Guya.
(Def. Mem. in Supp. at 2-3; Compl. at 4, ¶ 1.)
Plaintiff
alleges that the topic of conversation focused instead on her
mental health.
(Compl. at 4, ¶ 1.)
She alleges that she was
told that she was “too sensitive,” her “perspective was askew,”
and that she was “unable to do [her] job.”
(Id.)
Plaintiff
also alleges that ACCA staff recommended a mental health
facility to her that could provide medication and therapy for
those without health insurance.
(Id.)
On November 19, 2014, Plaintiff arrived at work and
asked to speak to Ms. Shaw.
(Compl. at 4, ¶ 2.)
Plaintiff
alleges that she expressed concern about the comments made
during the prior day’s meeting about her mental health.
(Id.)
She believed that the topic was a distraction from “the real
issue.”
(Id.)
She also alleges that she informed Ms. Shaw that
she had “done [her] research the night before” regarding her ADA
rights.
(Id.)
Plaintiff claims that Ms. Shaw immediately asked
her to go home on administrative leave.
(Id.)
Plaintiff
allegedly told Ms. Shaw that she was able to work and that she
was worried that “[sending her home] was a form of retaliation
for speaking up for [her] rights.”
(Id.)
Ms. Shaw allowed
Plaintiff to go to her classroom, where Plaintiff taught for
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most of the day.
(Id.)
Around 2 pm that afternoon, however,
Plaintiff was asked to go to Ms. Balivian’s office, where she
met with Ms. Balivian and Ms. Shaw.
then terminated.
(Id.)
(Id. ¶ 3.)
Plaintiff was
Plaintiff alleges that she asked if she
was being fired because she voiced concerns over ACCA’s actions
towards her the prior day.
(Id.)
Plaintiff also allegedly
asserted that it was illegal to fire her for speaking up for her
rights.
(Id.)
Plaintiff claims that Ms. Balivian responded to
Plaintiff by clarifying that, in Virginia, employment is atwill, so ACCA did not need an excuse for firing her.
Plaintiff was then escorted out of the building.
(Id.)
(Id.)
Plaintiff also alleges that she was diagnosed with
bipolar disorder and Attention Deficit Hyperactivity Disorder
(“ADHD”) in 2010.
(Compl. at 3.)
She claims that she takes
three medications to manage her mental health, as well as
attends regular appointments with a therapist and a
psychiatrist.
(Id.)
Plaintiff filed suit in state court on September 28,
2015.
[See Dkt. 1-1 at 2.]
On October 19, 2016, Defendant
filed a notice of removal to federal court.
[Dkt. 1.]
On
October 26, 2016, Defendant filed the instant motion to dismiss.
[Dkt. 4.]
On November 14, 2016, Plaintiff filed her memorandum
in opposition, [Dkt. 6.], to which Defendant replied on November
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21, 2016, [Dkt. 8.].
Defendant’s motion is now ripe for
disposition.
II.
A.
Standard of Review
Motion to Dismiss under Rule 12(b)(5) for
Improper Service of Process
“[W]hen a defendant moves to dismiss under Rule
12(b)(5), the plaintiff bears the burden of proving adequate
service.”
Dickerson v. Napolitano, 604 F.3d 732, 752 (4th Cir.
2010) (internal citation omitted).
“Absent waiver or consent, a
failure to obtain proper service on the defendant deprives the
court of personal jurisdiction over the defendant.”
Koehler v.
Dodwell, 152 F.3d 304 (4th Cir. 1998) (internal citation
omitted).
However, when “the defendant [has] actual notice of
the pendency of the action, the rules, in general, are entitled
to a liberal construction. . . . [E]very technical violation of
the rule or failure of strict compliance may not invalidate the
service of process.”
Armco, Inc. v. Penrod-Staufer Bldg. Sys.,
Inc., 733 F.2d 1087, 1089 (4th Cir. 1984).
B.
Motion to Dismiss under Rule 12(b)(6) for Failure
to State a Claim
“A motion to dismiss under Rule 12(b)(6) tests the
sufficiency of a complaint; importantly, it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.”
Republican Party of N.C. v. Martin,
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980 F.2d 943, 952 (4th Cir. 1992) (citation omitted).
The
Supreme Court has stated that in order “[t]o survive a motion to
dismiss, a [c]omplaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id.
“Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.”
Iqbal, 556 U.S. at 679 (citations omitted).
While legal conclusions can provide the framework for a
complaint, all claims must be supported by factual allegations.
Id.
Based upon these allegations, the court must determine
whether the plaintiff’s pleadings plausibly give rise to an
entitlement for relief.
Id.
Legal conclusions couched as
factual allegations are not sufficient, Twombly, 550 U.S. at
555, nor are “unwarranted inferences, unreasonable conclusions,
or arguments,” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship,
213 F.3d 175, 180 (4th Cir. 2000).
The plaintiff, however, does
not have to show a likelihood of success; rather, the complaint
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must merely allege-directly or indirectly-each element of a
“viable legal theory.”
Twombly, 550 U.S. at 562-63.
At the motion to dismiss stage, the court must
construe the complaint in the light most favorable to the
plaintiff, read the complaint as a whole, and take the facts
asserted therein as true.
Iqbal, 556 U.S. at 678.
Generally, a
district court does not consider extrinsic materials when
evaluating a complaint under Rule 12(b)(6).
It may, however,
consider “documents incorporated into the complaint by
reference.”
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007); see also Blankenship v. Manchin, 471 F.3d
523, 526 n.1 (4th Cir. 2006).
In addition, the court may
consider documents attached to the defendant’s motion to dismiss
if those documents are central to the plaintiff’s claim or are
“sufficiently referred to in the complaint,” so long as the
plaintiff does not challenge their authenticity.
Witthohn v.
Fed. Ins. Co., 164 F. App’x 395, 396–97 (4th Cir. 2006).
The Court construes the pro se Complaint in this case
more liberally than those drafted by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520 (1972).
Further, the Court is aware
that “[h]owever inartfully pleaded by a pro se plaintiff,
allegations are sufficient to call for an opportunity to offer
supporting evidence unless it is beyond doubt that the plaintiff
can prove no set of facts entitling him to relief.”
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Thompson v.
Echols, No. 99–6304, 1999 WL 717280, at *1 (4th Cir. 1999)
(citing Cruz v. Beto, 405 U.S. 319 (1972)).
Nevertheless, while
pro se litigants cannot “be expected to frame legal issues with
the clarity and precision ideally evident in the work of those
trained in law, neither can district courts be required to
conjure up and decide issues never fairly presented to them.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1276 (4th Cir.
1985).
Thus, even in cases involving pro se litigants, the
Court “cannot be expected to construct full blown claims from
sentence fragments.”
Id. at 1278.
Further, the Court may not
construct a plaintiff's legal arguments for him or her. See,
e.g., Small v. Endicott, 998 F.2d 411, 417–18 (7th Cir. 1993).
III. Analysis
A.
Motion to Dismiss under Rule 12(b)(5) for
Improper Service of Process
In the Commonwealth of Virginia, the plaintiff must
serve process within twelve months of commencing an action.
Va. Code § 8.01-275.1.
See
Process may be served on corporations in
the following ways relevant to this case: (1) by personal
service on any officer, director, or registered agent; or (2) by
substituted service in accordance with Virginia Code § 13.1-836.
See Va. Code § 8.01-299.
Section 13.1-836 of the Virginia Code allows for
substituted service by permitting a registered agent to
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designate a natural person to receive process on his or her
behalf at the registered office, as well as by allowing the
registered agent to authorize receipt of process via facsimile.
Va. Code § 13.1-836(A).
The provision also permits service of
process on the clerk of the Commission whenever a corporation
fails to appoint or maintain a registered agent in the
Commonwealth or whenever the agent cannot be found with
“reasonable diligence” at the registered office.
836(B).
Id. § 13.1-
Finally, the provision clarifies that it “does not
prescribe the only means, or necessarily the required means, of
serving a corporation.”
Id. § 13.1-836(C).
Defects in process that are otherwise timely served
can be saved by Virginia Code § 8.01-288.
It provides:
Except for process commencing actions for divorce
or annulment of marriage or other actions wherein
service of process is specifically prescribed by
statute, process which has reached the person to
whom it is directed within the time prescribed by
law, if any, shall be sufficient although not
served or accepted as provided in this chapter.
Id. § 8.01-288.
corporations.
This provision applies to service of process on
See Pennington v. McDonnell Douglas Corp., 576 F.
Supp. 868, 872 (E.D. Va. 1983) (holding that Virginia Code
§ 8.01-288’s terms specifically apply to corporations); Frey v.
Jefferson Homebuilders, Inc., 251 Va. 375, 379-80 (1996)
(finding no language to indicate a legislative intent to exclude
the service provisions of Virginia Code § 8.01-299 from the
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saving provision of Virginia Code § 8.01-288).
Moreover,
“[u]nder Virginia Code § 8.01-288, once process comes to the
defendant’s attention, it is of no consequence that the means by
which Plaintiff initially attempted to serve process were
improper.”
Goldbelt Wolf, LLC v. Operational Wear Armor, LLC,
2016 WL 1756487, at *3 (E.D. Va. May 3, 2016) (internal
citations omitted).
In the instant case, Plaintiff’s lawsuit commenced in
state court on September 28, 2015.
[Dkt. 1-1.]
Under Virginia
law, Plaintiff was required to serve process by September 28,
2016.
She did so by delivering a copy of the summons and
complaint to Carol Robinson-Huntley, ACCA’s office coordinator,
that same day.
(See Aff. of Serv. [Dkt. 5-3].)
ACCA does not
appear to dispute that it had notice of Plaintiff’s lawsuit at
that time.
Accordingly, the Court finds that Plaintiff’s
service was timely.
ACCA nevertheless alleges that Plaintiff’s service was
improper because Ms. Robinson-Huntley is not an officer,
director, or registered agent of ACCA.
5-2] ¶ 3.)
(See Huntley Decl. [Dkt.
Moreover, ACCA claims that she has “no level of
authority whatsoever” to accept service of process on its
behalf.
(Def. Mem. in Supp. at 6; see also Huntley Decl. ¶ 4.).
ACCA clarifies that its registered agent is Homer C.
Christensen, [see Dkt. 5-4], but fails to respond to Plaintiff’s
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allegation that Mr. Christensen’s office is not located at the
registered address, (Pl. Mem. in Opp. at 2.).
Ultimately, the Court finds ACCA’s arguments
unpersuasive.
Based upon the record presently before the Court,
Plaintiff’s service of process was improper under Virginia law.
See Va. Code §§ 8.01-299, 13.1-836.
However, because
Plaintiff’s service was timely, the saving provision of Virginia
Code § 8.01-288 applies.
Once applied, Virginia Code § 8.01-288
dictates that “[h]ow the process comes to the defendant’s
attention is no longer of any consequence in Virginia.”
Pennington, 576 F. Supp. at 872.
Thus, the Court finds that
Plaintiff’s service of process was sufficient under Virginia
law.
B.
Motion to Dismiss under Rule 12(b)(6) for Failure
to State a Claim
Because Plaintiff is a pro se litigant, and dismissal
is too harsh a remedy under the circumstances, the Court directs
Plaintiff to submit a particularized amended complaint that
comports to the Federal Rules of Civil Procedure.
Civ. P. 8(a)(2), (d)(1).
See Fed. R.
The body of the particularized
complaint must set forth clearly, in separately numbered
paragraphs, a short statement of the facts giving rise to a
claim for relief.
Thereafter, in separately named sections,
Plaintiff must clearly identify each right that has been
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violated.
She should do so with the requisite specificity, so
as to give Defendant notice of her claims.
See Jarrell v.
Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987) (quoting Hobson v.
Wilson, 737 F.2d 1, 29 (D.C. Cir. 1984)).
Plaintiff must also
explain in each section why she believes that Defendant is
liable to her for the violation of any rights.
Such explanation
should reference the numbered factual paragraphs in the body of
the particularized complaint that support that assertion.
Finally, Plaintiff should include a prayer for relief.
The particularized pleading will replace the prior
Complaint and must stand or fall of its own accord.
In other
words, Plaintiff should not reference statements made in the
prior Complaint in her new pleading.
Plaintiff is warned that
failure to comply with the Court's instructions may result in
dismissal of her action.
See Fed. R. Civ. P. 41(b).
IV.
Conclusion
For the foregoing reasons, the Court will deny
Defendant’s motion to dismiss and order Plaintiff to file a more
particularized Complaint.
An appropriate Order will issue.
November 29, 2016
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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