United States District Court, E.D. Virginia, Alexandria Division
C. Cacheris UNITED STATES DISTRICT COURT JUDGE.
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.
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
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.
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.
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.
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.
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
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.
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).
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).
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 ...