United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE
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.
case is brought by pro se Plaintiff Selai
Akbar-Hussain (“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.)
was formerly employed by Defendant as a Child Development
Aide at ACCA. On November 18, 2014, Plaintiff 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
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 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. (Id. ¶
3.) Plaintiff was then terminated. (Id.) 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
at-will, so ACCA did not need an excuse for firing her.
(Id.) Plaintiff was then escorted out of the
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.
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 21, 2016, [Dkt. 8.]. Defendant's
motion is now ripe for disposition.
Standard of Review
Motion to Dismiss under Rule 12(b)(5) for Improper
Service of Process
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).
Motion to Dismiss under Rule 12(b)(6) for Failure to
State a Claim
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, 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.
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.