Wright v. EClerx, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:20-CV-587-BO

SATOYA LATICE WRIGHT, )

Plaintiff, )

)

) GRDER

)

ECLERX, LLC, LAURA HOLTZ, )

MICHAEL COLE, LUCINDA LOVE, )

LAKENDRA DUNCAN, JOYA )

JOHNSON, TERRANCE ANDREWS, )

Defendants. )

This cause comes before the Court on defendant eClerx, LLC’s motion to dismiss pursuant

to Rules 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. [DE

20]. Plaintiff, who proceeds in this action pro se, has failed to respond to the motion to dismiss

and the time for doing so has expired. In this posture, the motion is ripe for ruling. For the reasons

that follow, the motion to dismiss is granted and plaintiff's amended complaint is dismissed.

BACKGROUND

Plaintiff commenced this action by filing a motion to proceed im forma pauperis and

attaching her complaint on November 5, 2020. [DE 1]. The motion to proceed in forma pauperis

was granted and plaintiff was ordered to file an amended complaint. [DE 4]. Plaintiff filed her

amended complaint and the magistrate judge determined that it was not frivolous. [DE 8]. Plaintiff

was ordered to file completed summons for service by the United States Marshals Service. /d.

Plaintiffs amended complaint [DE 10] alleges claims against her former employer eClerx

as well as her supervisors and co-workers for retaliatory discrimination, wrongful termination, and

sexual harassment under Title VII of the Civil Rights Act of 1964, as amended. Plaintiff also

alleges a claim for invasion of privacy under North Carolina law.

Defendant eClerx, LLC appeared on February 7, 2023, and filed the instant motion to

dismiss all defendants. A Rule 12 letter notifying plaintiff of her right to respond was issued by

the Clerk of Court on February 8, 2023. [DE 22]. Despite being notified of her right to do so,

plaintiff has failed to respond to the motion to dismiss.

DISCUSSION

Rule 12(b)(2) of the Federal Rules of Civil Procedure authorizes dismissal for lack of

personal jurisdiction. When personal jurisdiction has been challenged on the papers alone, the

plaintiff must make a prima facie case showing that personal jurisdiction exists, and a court

construes all facts and inferences in favor of finding jurisdiction. Combs v. Bakker, 886 F.2d 673,

676 (4th Cir. 1989).

Rule 12(b)(4) authorizes dismissal for insufficient process, or a deficiency in the content

of the documents that have been served. Rule 12(b)(5) authorizes dismissal for insufficient service

of process, or a deficiency in service itself. See Washington v. Cedar Fair, L.P., No. 3:22-cv-244-

MOC-DSC, 2023 U.S. Dist. LEXIS 16559, at *5 (W.D.N.C. Feb. 1, 2023). When a defendant

moves to dismiss for either insufficient process or insufficient service of process, the plaintiff must

demonstrate that service has been effected in accordance with the rules. Elkins v. Broome, 213

F.R.D. 273, 275 (M.D.N.C. 2003). “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, 306 (4th Cir. 1998).

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain, 478

U.S. 265, 283 (1986). A complaint must allege enough facts to state a claim for relief that is facially

plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the facts

alleged must allow a court, drawing on judicial experience and common sense, to infer more than

the mere possibility of misconduct. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d

250, 256 (4th Cir. 2009). The court “need not accept the plaintiff's legal conclusions drawn from

the facts, nor need it accept as true unwarranted inferences, unreasonable conclusions, or

arguments.” Philips v. Pitt County Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (internal

alteration and citation omitted). “[A] pro se complaint, however inartfully pleaded, must be held

to less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S.

97, 106 (1976) (internal quotation and citation omitted). However, a court does not “act as an

advocate for a pro se litigant,” Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978), nor is it

required to “discern the unexpressed intent of the plaintiff].]"” Williams v. Ozmint, 716 F.3d 801,

805 (4th Cir. 2013) (quoting Laber v. Harvey, 438 F.3d 404, 413 n. 3 (4'* Cir. 2006) (en banc)).

J. Plaintiff has failed to effect proper service on any defendant.

The docket reflects that service was returned unexecuted as to defendants Joya Johnson,

Lucinda Love, and Laura Holtz. [DE 15, 16, 18]. Although the docket reflects that service was

executed as to Lakendra Duncan, [DE 19], the USPS receipt shows that the summons and

complaint were not delivered because no authorized recipient was available. More than ninety days

has passed since the filing of the complaint, and these defendants are therefore dismissed pursuant

to Rule 4(m).

Service on a corporate entity requires delivery to either an officer, managing or general

agent, or another agent authorized to receive service of process, Fed. R. Civ. P. 4(h)(2), or an

officer, director, or agent. N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 4(j)(6)(c); see also Fed. R. Civ.

P. 4(h)(1) (authorizing service on a corporate entity under applicable state rules). Plaintiff's

summons directed to defendant eClerx is not directed to an officer, agent, or director. She has

further not responded to show why her failure to comply with the rules should be excused.

Accordingly, her summons is defective and dismissal of defendant eClerx is appropriate under

Rule 12(b)(4) and Rule 12(b)(2). See Brown v. Blue Cross and Blue Shield of N. Carolina., 226

F.R.D. $26, 528 (M.D.N.C. 2004).

Plaintiff has further failed to comply with the service rules in serving defendants Terrance

Andrews and Michael Cole. The summons issued for these defendants lists their address as the

eClerx facility address. Fed. R. Civ. P. 4(e) directs that service on an individual may be effected

by personal service, leaving a copy at their dwelling with a resident of that dwelling of suitable

age, or delivering it to an authorized agent. The rule further permits service on an individual which

complies with the applicable state law. North Carolina law also permits service on an individual

at the individual's dwelling house, through an authorized agent, or by delivery to the individual.

N.C. Gen. Stat. [A-1, § 4(j).

Neither Cole nor Andrews worked at eClerx or resided there at the time plaintiff's

summons were delivered. [DE 21-1 §§ 7-9]. Although the delivery receipts were signed, they were

signed by eClerx security guards who are not authorized agents of Cole or Andrews. Id. 4-6.

Accordingly, and in the absence of any showing by plaintiff, the Court finds that service h:as not

been properly effected on defendants Andrews and Cole and that they are properly dismissed

pursuant to Rule 12(b)(5) and Rule 12(b)(2). See Orban v. Nationwide Tr. Services, Inc., 5:12-CV-

00016-RLV-DS, 2014 WL 6476235, at *4 (W.D.N.C. Nov. 19, 2014).

When the process gives the defendant actual notice of the perdericy of the action,

the rules, in general, ate entitled tc a liberal construction. When there is ac:tual

notice, every technical violation of the rule or failure of strict compliance may not

invalidate the service of process. But the rules are there to be followed, and plain

requirements for the means of effecting service of process may not be ignored.

Armco, Inc. v. Penrod-Stauffer Bldg. Sys., 733 F.2d 1087, 1089 (4th Cir. 1984). Though notified

of her right to respond, plaintiff has failed to come forward to challenge dismissal for failing to

follow the requirements for effecting proper service. Accordingly, all defendants are dismissed

as the Court lacks personal jurisdiction over them.

ll. Plaintiff has further failed to state a claim upon which relief can be granted.

Alternatively, defendant eClerx has demonstrated that plaintiff has failed to state a claim

upon which relief can be granted. First, individual employees are generally not liable under Title

VII. Lissau v. S. Food Serv., Inc., 159 F.3d 177, 181 (4th Cir. 1998); see also Wathen v. GE. 115

F.3d 400, 405 (6th Cir. 1997) (“Congress did not intend to provide for individual

employee/supervisor liability under Title VII.”).

Second, an individual alleging discrimination in violation of Title VII must first file an

administrative charge with the Equal Employment Opportunity Commission (EEOC) generally

within 180 days of the alleged unlawful act. 42 U.S.C. § 2000e-5(e)(1). The failure to timely file

a charge with the EEOC bars the claim in federal court. McCollough v. Branch Banking & Trust

Co., 35 F.3d 127, 131 (4th Cir. 1994); see also Ft. Bend County, Texas v. Davis, 139 S. Ct. 1843,

1846 (2019) (180-day time period is a mandatory prerequisite to suit but not jurisdictional).

Plaintiff was terminated from her employment on November 7, 2919, and she does not

allege any actions by defendant eClerx after that date. Accordingly, her EEOC charge was

required to be filed, at most, 180 days from November 7, 2019, or May 5, 2020. Plaintiff's EEOC

charge was filed on May 20, 2020, after the 180-day period had expired. [DE 21 -2].' eClerx has

raised the untimeliness of plaintiffs EEOC charge and plaintiff has failed to present any

“The Court may consider documents attached and integral to the complaint, so long as their

authenticity is not challenged, without converting the motion to one for summary judgment.

Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016).

argument or evidence which would support a contrary finding. Thus, the Court determines that

plaintiffs Title VII claims are time-barred.

Finally, plaintiffs invasion of privacy claims fail. First, plaintiff has alleged that

defendant Holtz attempted to portray plaintiff in a false light, but “North Carolina does not

recognize a cause of action for the invasion of privacy by disclosure of private facts or invasion

of privacy by placing a plaintiff in a false light before the public.” Burgess v. Busby, 142 N.C.

App. 393, 405 (N.C. App. 2001) (internal citation omitted).

Plaintiff also alleges that defendant Johnson invaded her privacy by attempting to watch

plaintiff urinate for a drug test. North Carolina does recognize an invasion of privacy claim based

upon intrusion into seclusion where there has been a physical or other type of intrusion into the

private affairs or concerns of a person, if such intrusion “would be highly offensive to a

reasonable person.” Miller v. Brooks, 123 N.C. App. 20, 26 (1996) (quotation and citation

omitted). Plaintiff alleges only, however, that Johnson attempted to observe plaintiff while

plaintiff took a drug test. There are no allegations which would support a finding that Johnson

actually observed plaintiff providing a sample for a drug test or that she witnessed plaintiff in

any state of undress. “Generally, there must be a physical or sensory intrusion or an unauthorized

prying into confidential personal records to support a claim for invasion of privacy by intrusion.”

Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 29 (2003). Accordingly, plaintiff's

allegations in support of this claim are conclusory, and this claim is appropriately dismissed.

CONCLUSION

In sum, plaintiff has fa lecl to effect prope: service on any defendant and the ttime for doing

so has expired. She has further failed to state a claim upon which relief can be granted. Defendant

eClerx’s motion to dismiss [DE 20] is GRANTED and plaintiff's amended complaint is

DISMISSED in its entirety.

SO ORDERED, this € day of May 2023.

ahiKe W. BOYLE

UNITED STATES DISTRICT JUDGE