Carney v. Verizon Communications

Filing 39

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 36 ) AND GRANTING MOTION TO DISMISS (DKT. NO. 4 ). The Court adopts the Magistrate Judge's 36 Report and Recommendation in its entirety, GRANTS Verizon's 4 Motion to dismiss and DI SMISSES Carney's complaint WITHOUT PREJUDICE. The Clerk is directed to enter a separate judgment in this matter. Signed by District Judge Irene M. Keeley on 2/28/17. (To PS Plaintiff via cert. mail)(mh) (Additional attachment(s) added on 2/28/2017: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KELLY CARNEY,
Plaintiff,
v.

CIVIL ACTION NO.: 1:16CV54

VERIZON COMMUNICATIONS INC.,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 36] AND GRANTING MOTION TO DISMISS [DKT. NO. 4]
On October 29, 2015, the pro se plaintiff, Kelly Carney
(“Carney”), filed a complaint in the Magistrate Court of Harrison
County, West Virginia, against her former employer, defendant
Verizon Communications, Inc. (“Verizon”), for violations of the
West Virginia Wage Payment and Collection Act (“WVWPCA”) and the
Employee Retirement Income Security Act (“ERISA”) (dkt. no. 1-1).
On March 30, 2016, Verizon removed the case to this Court, citing
federal

question

jurisdiction

based

on

Carney’s

ERISA

claim.

Shortly thereafter, Verizon moved to dismiss the case for lack of
personal jurisdiction, arguing that it was not the proper defendant
in this action (dkt. no. 4).
On March 31, 2016, the Court referred this matter to United
States Magistrate Judge Michael J. Aloi for initial screening and
a Report and Recommendation (“R&R”) in accord with 28 U.S.C. §
636(b)(1)(A) and LR CIV P 72.01 (dkt. no. 9). Magistrate Judge Aloi
issued a Roseboro Notice on March 31, 2016, informing Carney that
she had until April 29, 2016, to respond to Verizon’s motion to

CARNEY V. VERIZON COMM. INC.

1:16CV54

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 36] AND GRANTING MOTION TO DISMISS [DKT. NO. 4]
dismiss. On May 2, 2016, although the deadline had passed, Carney
filed a “pro se form” construed by Magistrate Judge Aloi as both a
motion to remand and a motion to amend.
Magistrate Judge Aloi ordered Verizon to respond to Carney’s
motions, which it did on May 27, 2016 (dkt. no. 22). Thereafter, by
order dated July 14, 2016, he denied Carney’s motion to remand, but
granted her motion to amend (dkt. no. 33). Because she had not
filed her proposed amended complaint together with her motion to
amend, Magistrate Judge Aloi’s order directed Carney to file her
amended complaint no later than twenty-one days from receipt of the
order. The United States Postal Service (“USPS”) attempted delivery
of the order on July 22, 2016, and again on July 31, 2016, but the
mailing

was

returned

to

sender

on

August

11,

2016,

marked

“unclaimed” and “unable to forward” (dkt. no. 34).
On August 19, 2016, Magistrate Judge Aloi recommended that the
Court

grant

Verizon’s

motion

and

dismiss

this

case

without

prejudice (dkt. no. 36). The R&R first concluded that the Court
lacked personal jurisdiction over Verizon because it was simply a
holding company lacking any minimum contacts with West Virginia
sufficient

to

establish

either

general

or

specific

personal

jurisdiction. Next, the R&R identified an alternative ground for
dismissal, finding that Carney had “fail[ed] to prosecute or to

2

CARNEY V. VERIZON COMM. INC.

1:16CV54

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 36] AND GRANTING MOTION TO DISMISS [DKT. NO. 4]
comply with these rules or a court order” by not timely filing her
amended complaint as ordered. Dkt. No. 36 at 5 (quoting Fed. R.
Civ. P. 41(b)). The R&R also specifically warned Carney that her
failure to object to the recommendation would result in the waiver
of any appellate rights she might otherwise possess regarding this
issue.1 Id.
On September 6, 2016, Carney filed a “response,” in which she
made no objections to the legal analysis or reasoning contained in
the R&R; instead, she asked the Court to reconsider the dismissal
of her claims. In addition, she requested that “the order be
amended to change defendant to Verizon Services Corp, and to
include Leslie Wright, Tammy Mason, and Judy Isner.” Dkt. No. 38 at
1-2. In support, Carney contends that she was not at her residence
to receive service from the USPS because her daughter was in the
hospital at the time.
There are several problems with Carney’s reasons for not
timely filing her amended complaint. First, despite responding that
“[t]his response is dated for 8/22/16,” it also states that she
“was unable to receive service prior to being emailed the order

1

The failure to object to the Report and Recommendation not only
waives the appellate rights in this matter, but also relieves the
Court of any obligation to conduct a de novo review of the issue
presented. See Thomas v. Arn, 474 U.S. 140, 148-53 (1985); Wells v.
Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997).
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CARNEY V. VERIZON COMM. INC.

1:16CV54

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 36] AND GRANTING MOTION TO DISMISS [DKT. NO. 4]
from clerk on 8/24/16.” Furthermore, the docket reflects that the
R&R was mailed on August 19, 2016, and returned to the Clerk’s
office on August 23, 2016, having been signed by Carney sometime
between those two dates.2 Furthermore, although Carney contends
that she was not at her residence from July 5 to July 30, 2016, the
USPS unsuccessfully attempted delivery on July 31, 2016. Finally,
Carney’s notice states, “I am attaching the amendment with the
appeal

to

not

dismiss

the

case

due

to

my

extenuating

circumstances.” Dkt. No. 38 at 2. Nonetheless, no amended complaint
was attached, and, to this date, the Court has received no amended
complaint from Carney.
Ultimately, Carney has never actually amended her complaint,
despite plenty of opportunity to do so. Nor has she objected to
Magistrate Judge Aloi’s sound reasoning as to why Verizon should be
dismissed for lack of personal jurisdiction. Consequently, finding
no clear error, the Court ADOPTS the R&R in its entirety (dkt. no.
36), GRANTS Verizon’s motion (dkt. no. 4), and DISMISSES Carney’s
complaint WITHOUT PREJUDICE.
It is so ORDERED.

2

A review of the USPS tracking website indicates that the mailing
was delivered and left with an individual on August 22, 2016, at
12:42 p.m. Carney’s signature on the USPS receipt matches the
signature on her other filings.
4

CARNEY V. VERIZON COMM. INC.

1:16CV54

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 36] AND GRANTING MOTION TO DISMISS [DKT. NO. 4]
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this order to counsel of record and to the pro se plaintiff,
certified mail, return receipt requested.
Dated: February 28, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

5