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Jackson v. Metrocomputax

United States District Court, E.D. Virginia, Alexandria Division

December 9, 2016




         This matter is before the Court on Defendant Metrocomputax's Motion to Dismiss [Dkt. 12]. Defendant contends that the Court should dismiss Plaintiff Nigel Jackson's Complaint as untimely filed and improperly served. For the reasons that follow, the Court will grant Defendant's Motion and dismiss Plaintiff's Complaint.

         I. Background

         Defendant formerly employed Plaintiff as a seasonal tax preparer. At some point during his employment, Plaintiff -an African-American male - began to suspect that other employees were receiving more favorable treatment than he due to his race, gender, and disability. As a result, Plaintiff filed a charge of discrimination with the Alexandria Office of Human Rights.

         Plaintiff alleges that on or about March 19, 2014, Defendant's representative contacted him and informed him that Defendant had received notice of his civil rights complaint. The representative stated further that Plaintiff would not be permitted to return to work until he agreed to sign negative performance reviews and warnings. These had been backdated in an effort to manufacture a reason for Defendant's poor treatment of Plaintiff. Plaintiff refused to sign the documents, and was ultimately terminated from his position. Plaintiff then added a charge of retaliation to his earlier civil rights complaint.

         On October 1, 2014, the Alexandria Office of Human Rights declined to pursue Plaintiff's claim, and Plaintiff requested that the Equal Employment Opportunity Commission (EEOC) review his case. On October 16, 2015, the EEOC likewise declined to take on Plaintiff's case and issued a right-to-sue letter.

         Plaintiff, however, did not immediately receive the letter. While Plaintiff had notice that the EEOC had dismissed his claim, the letter was accidentally mailed to the wrong address due to a typographical error. After several weeks, Plaintiff inquired with the EEOC, which supplied him with the missing letter on December 4, 2015.

         Plaintiff attempted to secure counsel to bring a civil action. When he was unable to do so, he filed suit pro se on January 7, 2016. Unfortunately, Plaintiff filed suit in the wrong court, erroneously filing his claim as a warrant of debt in Alexandria General District Court (Case No. GV16000038-00). Plaintiff claims to have realized his error shortly after March 4, 2016. He then filed suit in this Court on March 9, 2016. It is unclear whether Plaintiff's suit in state court remains pending.

         Plaintiff first obtained a summons on June 15, 2016 - 91 days after this Court granted Plaintiff leave to proceed in forma pauperis. His first attempt at service failed, as Defendant's place of business had moved and Plaintiff knew only its previous address. The Court issued an Order [Dkt. 8] on September 1, 2016, requiring Plaintiff to show cause why this case should not be dismissed for lack of proper service under Federal Rule of Civil Procedure 4(m). Plaintiff filed a response on September 20, 2016, and effectuated service upon Defendant on October 12, 2016 - 211 days after the Court granted Plaintiff leave to proceed in forma pauperis.

         On November 2, 2016, Defendant filed the instant Motion seeking to dismiss Plaintiff's Complaint based on Plaintiff's delay both in filing suit and effectuating service.

         II. Legal Standard

         A motion filed pursuant to Rule 12(b)(1) challenges the Court's subject matter jurisdiction over the pending action. The burden of proving subject matter jurisdiction falls on the plaintiff. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).

         “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; importantly, [a Rule 12(b)(6) motion] does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999) (citation omitted). While the Court must accept well-pled allegations of fact as true when ruling on a Rule 12(b)(6) motion, the Court need not accept legal conclusions disguised as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 679-81 (2009). Therefore, a pleading that offers only a “formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

         “[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) (quoting Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)). “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) (citing Armco, Inc.v. Penrod-Staufer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984)). However, “[w]hen there is actual notice, every technical violation of the rule or failure of strict compliance may not ...

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