DAVIS v. UNIVERSITY OF NORTH CAROLINA AT GREENSBORO

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

AUTUMN DAVIS, )

)

Plaintiff, )

)

v. ) 1:19CV661

)

UNIVERSITY OF NORTH CAROLINA )

AT GREENSBORO, THE BOARD OF )

GOVERNORS OF THE UNIVERSITY )

OF NORTH CAROLINA, and )

RALEIGH SCHOOL OF NURSE )

ANESTHESIA, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is a Motion to Dismiss filed by Defendant

Raleigh School of Nurse Anesthesia (“RSNA”). (Doc. 47.) For the

reasons that follow, this court will grant in part and deny in

part RSNA’s motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

This court adopts the facts set forth in this court’s prior

memorandum opinion in this matter. (See Mem. Op. & Order

(Doc. 13) at 2–10.) Additional relevant facts will be addressed

as necessary throughout the opinion.

Plaintiff filed her Complaint in this court in July 2019.

(Compl. (Doc. 1).)1 On January 12, 2022, this court entered its

memorandum opinion granting RSNA’s motion to set aside entry of

default, and directed RSNA to answer or otherwise respond to the

Complaint within ten days of the entry of the memorandum

opinion. (Mem. Op. & Order (Doc. 44) at 14.)2 On January 24,

2022, RSNA filed a motion to dismiss, (Doc. 47), along with a

supporting brief, (Br. in Supp. of Mot. to Dismiss (“RSNA’s

Br.”) (Doc. 48)). Plaintiff responded, (Br. in Opp’n to Def.’s

Mot. to Dismiss (“Pl.’s Resp.”) (Doc. 52)), and RSNA replied,

(Doc. 53).

II. STANDARDS OF REVIEW

A. Federal Rule of Civil Procedure 12(b)(1)

Motions to dismiss for lack of subject matter jurisdiction

are governed by Federal Rule of Civil Procedure 12(b)(1). The

plaintiff bears the burden of proving that subject matter

jurisdiction properly exists in the federal court. See Evans v.

B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642,

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

2 This court notes there is some question whether default

judgment should have been entered in the first place given the

defects with service.

647 (4th Cir. 1999). In a Rule 12(b)(1) motion, the court “may

consider evidence outside the pleadings” to help determine

whether it has jurisdiction over the case before it. Richmond,

Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d

765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. The

court should grant the Rule 12(b)(1) motion “only if the

material jurisdictional facts are not in dispute and the moving

party is entitled to prevail as a matter of law.” Richmond, 945

F.2d at 768. A Rule 12(b)(1) motion may allege that sovereign

immunity is a jurisdictional bar against the claim. See

Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640,

649–51 (4th Cir. 2018).

B. Federal Rule of Civil Procedure 12(b)(2) and (b)(5)

Under Federal Rule of Civil Procedure 12(b)(5),

[t]he plaintiff bears the burden of establishing that

the service of process has been performed in

accordance with the requirements of Federal Rule of

Civil Procedure 4. In determining whether the

plaintiff has satisfied his burden, the technical

requirements of service should be construed liberally

as long as the defendant had actual notice of the

pending suit. “When there is actual 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.”

Elkins v. Broome, 213 F.R.D. 273, 275 (M.D.N.C. 2003) (internal

citations omitted) (quoting Armco, Inc. v. Penrod–Stauffer Bldg.

Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984)); see Fed. R.

Civ. P. 4(e)(1) (permitting an individual to be served by

“following state law for serving a summons”); see generally N.C.

R. Civ. P. 4. North Carolina law concerning the sufficiency of

service of process is to like effect:

North Carolina courts have long recognized

“liberality as the canon of construction when

interpreting the North Carolina Rules of Civil

Procedure.” Adhering to that principle,

“[t]echnicalities and form are to be disregarded in

favor of the merits of the case.” However, the rules

governing service of process are to be “strictly

enforced to [e]nsure that a defendant will receive

actual notice of a claim against him.” In that sense,

North Carolina courts and the Fourth Circuit echo one

another: at the end of the day, the rules are there to

be followed.

Moreover, North Carolina courts “have repeatedly

held that actual notice is not a valid substitute for

service when that service does not comply with the

statute.”

Teasley v. Stein, No. 1:20cv1166, 2022 WL 715923, at *2

(M.D.N.C. Mar. 10, 2022) (internal citations omitted) (quoting

Washington v. Cline, 233 N.C. App. 412, 420, 761 S.E.2d 650, 655

(2014)); Lemons v. Old Hickory Council, Boy Scouts of Am., Inc.,

322 N.C. 271, 275, 367 S.E.2d 655, 657 (1988); Grimsley v.

Nelson, 342 N.C. 542, 545, 467 S.E.2d 92, 94 (1996); Stack v.

Union Reg’l Mem’l Med. Ctr., Inc., 171 N.C. App. 322, 228, 614

S.E.2d 378, 382 (2005)).

C. Federal Rule of Civil Procedure 12(b)(6)

“To survive a [Rule 12(b)(6)] motion to dismiss, a

complaint 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

is plausible on its face “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged” and

demonstrates “more than a sheer possibility that a defendant has

acted unlawfully.” Id. When ruling on a motion to dismiss, this

court accepts the complaint’s factual allegations as true. Id.

Further, this court liberally construes “the complaint,

including all reasonable inferences therefrom . . . in the

plaintiff’s favor.” Est. of Williams-Moore v. All. One

Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.

2004). This court does not, however, accept legal conclusions as

true, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678.

III. ANALYSIS

A. Service of Process

RSNA argues Plaintiff’s claims against RSNA should be

dismissed because Plaintiff failed to properly serve RSNA.

(RSNA’s Br. (Doc. 48) at 6–7.) RSNA points to two deficiencies

with Plaintiff’s service: (1) “the Affidavit of Service omits

the suite number of th[e] multi-site building” in which RSNA’s

registered agent was located; and (2) “[t]he Affidavit of

Service . . . shows that the Complaint was delivered to a

Greensboro address and signed for by ‘Robert Stephens,’” but

“RSNA’s registered agent is not ‘Robert Stephens,’ nor is the

registered agent in Greensboro.” (Id. at 6.)

Plaintiff refuses to concede that her service of process

was improper and argues that RSNA has had actual notice of the

Complaint since at least August 27, 2019, as evidenced by Dr.

Blank’s, the president of the Board of Directors of RSNA, email.

(See Pl.’s Resp. (Doc. 52) at 9.) Plaintiff argues that any

failures with her service of process “are minor technical

violations that do not overshadow the fact that Plaintiff

substantially complied with Rule 4 in serving RSNA.” (Id.)

Plaintiff’s arguments in this regard confuse “minor technical

violations” with her failure to effect service on the

corporation’s registered agent. This is not a minor technical

violation.

Federal Rule of Civil Procedure 4(h) governs the service of

process upon corporations and provides that service may be

accomplished by, inter alia,

delivering a copy of the summons and of the complaint

to an officer, a managing or general agent, or any

other agent authorized by appointment or by law to

receive service of process and—if the agent is one

authorized by statute and the statute so requires—by

also mailing a copy of each to the defendant.

Pursuant to Rule 4(m), service must be effected within ninety

days after the complaint is filed. “[T]he Fourth Circuit has

recognized that noncompliance with Rule 4 does not mandate

dismissal where the necessary parties have received actual

notice of a suit and where they have not been prejudiced by the

technical defect.” Fields v. Norfolk & S. Ry. Co., 924 F. Supp.

2d 702, 708 (S.D.W. Va. 2012) (citing Karlsson v. Rabinowitz,

318 F.2d 666, 668–69 (4th Cir. 1963)).

Here, it is undisputed that RSNA received actual notice of

the suit. Dr. Blank acknowledged in an August 29, 2019 email

that he “was the president of the Board of Directors” of RSNA

when Plaintiff was a student, and that “[t]here was a statement

of complaint sent by mail, which ha[d] been forwarded to [him]

and for which [he] signed receipt o[n] Tuesday 27 August 2019.”

(Ex. 3 (“Email”) (Doc. 28-3) at 2.) It is also evident that

Plaintiff failed to properly serve RSNA. Plaintiff did not

properly serve RSNA’s registered agent, nor did Plaintiff

properly serve by the other ways allowed for under Rule 4(h).

Although Plaintiff refuses to concede that her service was

improper, she offers no evidence that her service of process

fully complied with the rules. (See Pl.’s Resp. (Doc. 52) at 9.)

The undisputed facts are that the Complaint was sent by

certified mail, return receipt requested, to RSNA’s address.

(See Doc. 7.) Although the Barrett Drive address in Raleigh was

listed for delivery, (id. at 2), there is conflicting USPS

information that the “item was delivered to an individual at the

address . . . on August 15, 2019 in GREENSBORO, NC 27406,” (id.

at 4). Even assuming the USPS tracking information is incorrect,

and the item was in fact delivered in Raleigh, the item was

signed for by an individual, “Robert Stephens,” (id. at 2), who

“has no connection or affiliation with RSNA,” (Decl. of Jonathan

W. Blank, MD (“Blank Decl.”) (Doc. 28) ¶ 8). These facts do not

support a finding that service was properly effected.

1. Good Cause

Under Federal Rule of Civil Procedure 4(m), federal courts

must extend time to serve process upon a finding of good cause.

To establish good cause for a service extension, a plaintiff

must show diligence. Gelin v. Shuman, 35 F.4th 212, 218 (4th

Cir. 2022).

“Good cause” requires a “showing of diligence on

the part of the plaintiffs.” Consistent with that

foundational principle, good cause is commonly found

to “exist[] when the failure of service is due to

external factors, such as the defendant’s intentional

evasion of service,” but “significant periods of

inactivity” and a “fail[ure] to seek extension of time

before [the] deadline [has] lapsed” tend to undercut

any claim of good cause. At bottom, “[w]hile ‘good

cause’ is a flexible standard, diligence provides a

touchstone for an appellate court” in its review.

Id. (alterations in original) (internal citations omitted)

(quoting Attkisson v. Holder, 925 F.3d 606, 627 (4th Cir.

2019)).

The Fourth Circuit recently clarified that if good cause is

shown, the court must extend the time for service. Id. at 220

(“[I]f the plaintiff is able to show good cause for the failure,

then the court must grant the extension.”). However, if good

cause is not shown, the court may choose to extend the time for

service but is not required to do so. Id. ([“W]e hold that under

Rule 4(m), a district court possesses discretion to grant the

plaintiff an extension of time to serve a defendant with the

complaint and summons even absent a showing of good cause by the

plaintiff for failing to serve the defendant during the 90-day

period provided by the Rule.”).

This court finds Plaintiff has not been diligent, and she

is thus not entitled to an extension for good cause. The reasons

for Plaintiff’s delay in completing proper service were not

external; rather they were wholly within her control. This is

not a case in which the defendant evaded service; in August 2019

RSNA on its own reached out to Plaintiff’s counsel because it

had received a complaint and asked about next steps given RSNA

“ha[d] been subsumed into University of North Carolina-

Greensboro’s School of Nursing.” (Email (Doc. 28-3) at 2–3.)

Plaintiff also failed to recognize that the signed return

receipt was signed for by “Robert Stephens” seemingly in

Greensboro, North Carolina, but the Complaint was supposed to be

served on RSNA’s registered agent, Walter Rogers, in Raleigh,

North Carolina. (See Doc. 7.) Moreover, if Plaintiff had not

recognized the improperness of her service on RSNA, it was made

abundantly clear to her in this court’s January 12, 2022

memorandum opinion setting aside entry of default against RSNA.

(See Mem. Op. & Order (Doc. 44).) Over three years have passed

since the inception of the case, over six months have passed

since this court set aside entry of default against RSNA, and to

date Plaintiff has failed to properly serve RSNA. These

“‘significant periods of inactivity’ and [] ‘fail[ure] to seek

extension of time before [the] deadline [has] lapsed’ tend to

undercut any claim of good cause.” Gelin, 35 F.4th at 218

(alterations in original) (quoting Attkisson, 925 F.3d at 627).

In sum, this court is not required to grant an extension for

service.

2. Discretionary Authority to Extend Time

As explained, even in the absence of good cause this court

may exercise its discretion to grant an extension to complete

service. Id. at 220. In exercising this discretion, Federal Rule

of Civil Procedure 6(b)(1)(B)’s excusable neglect standard

applies. Bolus v. Fleetwood RV, Inc., 308 F.R.D. 152, 156

(M.D.N.C. 2015) (finding the majority view holds that if a

plaintiff fails to establish good cause for a service extension

under Rule 4(m), the plaintiff must establish excusable neglect

under Rule 6(b) to receive a discretionary extension). The

Supreme Court has held that the inquiry under Rule 6(b)

is at bottom an equitable one, taking account of all

relevant circumstances surrounding the party’s

omission. These include . . . [1] the danger of

prejudice to the [opposing party], [2] the length of

the delay and its potential impact on judicial

proceedings, [3] the reason for the delay, including

whether it was within the reasonable control of the

movant, and [4] whether the movant acted in good

faith.

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507

U.S. 380, 395 (1993).

The first factor weighs in Plaintiff’s favor. RSNA does not

argue, and this court is unable to find, any particularized

prejudice RSNA would face if the deadline were extended. Given

that RSNA has had actual notice of this case since August 2019,

this court finds any risk of prejudice is minimized.

The second factor also weighs in Plaintiff’s favor. This

court is considering extending the time to complete proper

service for two weeks. This extension is short and will have

minimal impact on these proceedings. Discovery has closed, the

parties, including RSNA, have briefed motions for summary

judgment, (see Docs. 72, 75), and a trial date has been set,

(Doc. 84). Giving Plaintiff two weeks to properly serve RSNA

will not impact summary judgment or trial.

The third factor, which the Fourth Circuit has described as

“[t]he most important of the factors identified in Pioneer,”

Thompson v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530, 534

(4th Cir. 1996), weighs slightly in RSNA’s favor. As discussed

supra Section III.A.1, part of the reason for the delay has been

Plaintiff’s lack of diligence in recognizing and correcting

service defects. However, this court recognizes that some

confusion was likely created by RSNA becoming subsumed within

University of North Carolina School of Greensboro’s (“UNCG”)

School of Nursing, (see Email (Doc. 28-3)), which lessens

Plaintiff’s role in failing to properly serve RSNA.

Furthermore, while Dr. Blank’s affidavit was an integral

part of the proceedings to set aside default, it does raise some

questions about the facts underlying service. First, Dr. Blank’s

email states “[t]here was a statement of complaint sent by mail,

which has been forwarded to me and for which I signed receipt

o[n] Tuesday 27 August 2019.” (Email (Doc. 28-3) at 2.) Dr.

Blank does not explain what “signed receipt” means, but that

statement gives rise to some inference that a process occurred

which required him to acknowledge receipt, perhaps by the

registered agent. Moreover, although Dr. Blank contends “RSNA

vacated its principal office located at 3900 Barrett Drive” in

2018, (Blank Decl. (Doc. 28) at 2), this address change was not

filed with the secretary of state until 2020, (id. ¶ 16;

Doc. 28-4). Finally, while this court does not countenance the

failure to respond to Dr. Blank’s email by Plaintiff’s counsel,

Dr. Blank bears the responsibility for addressing his legal

affairs, not Plaintiff’s counsel. On balance, while both parties

bear responsibility for creating this already avoidable

conflict, the fact of actual notice causes this factor to weigh

in favor of Plaintiff.

All parties are reminded of Federal Rule of Civil Procedure

1: “[these rules] should be construed, administered, and

employed by the court and the parties to secure the just,

speedy, and inexpensive determination of every action and

proceeding.” Plaintiff’s apparent unwillingness to respond in

any fashion to Dr. Blank’s email at least advising him to obtain

counsel is not evidence that “RSNA neglected to do anything in

response to Ms. Davis’ lawsuit.” (Pl.’s Opp’n to Def.’s Mot. to

Set Aside Default J. (Doc. 37) at 1.) Similarly, a recognition

that the unusual corporate changes—closing an office but not

filing with the secretary of state for two years—might merit

some consideration.

The fourth factor, whether Plaintiff has acted in good

faith, is neutral. Plaintiff has not asked this court for an

extension; the court is considering an extension upon its own

exercise of discretion.

In addition to the four non-exhaustive Pioneer factors,

Fourth Circuit courts also examine whether discretionarily

denying a motion to extend the time for service would cause “any

prejudice to the plaintiff, such as by operation of statutes of

limitation that may bar refiling.” Blaylock v. UPS, Inc., CIVIL

ACTION NO. 1:20-00156, 2020 WL 3979667, at *2 (S.D.W. Va. July

14, 2020) (internal quotation marks omitted) (quoting Robinson

v. G D C, Inc., 193 F. Supp. 3d 577, 580 (E.D. Va. 2016)).3 This

additional factor finds direct support in the Advisory Committee

Notes to the 1993 Amendments to Rule 4(m), which expressly state

that discretionary “[r]elief may be justified . . . if the

applicable statute of limitations would bar the refiled action.”

3 Blaylock identified three other non-Pioneer factors to

“guide the discretionary decision of whether to enlarge the

service period”: (1) “whether the plaintiff sought an extension

before the deadline”; (2) “the plaintiff’s pro se status”; and

(3) “whether time has previously been extended.” 2020 WL

3979667, at *2. Two of these weigh in RSNA’s favor; Plaintiff

did not seek an extension pre-deadline nor is she pro se. One

weighs in Plaintiff’s favor; this court has not previously

extended the time for service.

“[C]ourts typically grant extra weight to this factor.” Id. at

*3; see also 4B Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedures § 1137 (4th ed. Apr. 2022 update) (“Of

these factors, courts place the most emphasis on a statute of

limitations bar.”).

This factor weighs in Plaintiff’s favor. As will be

explained, Plaintiff has plausibly alleged her first and second

claims, see infra Section III.C;4 Plaintiff’s other claims

against RSNA will be dismissed. Plaintiff’s surviving claims are

brought under Title IX. (Compl. (Doc. 1) ¶¶ 79–98.) If this

court were to grant RSNA’s motion to dismiss under Rule

12(b)(5), even without prejudice, Plaintiff’s federal Title IX

claims would be time-barred. See Rouse v. Duke Univ., 535 F.

App’x 289, 294 (4th Cir. 2013) (finding statute of limitations

for Title IX claim brought in North Carolina is three years).

Where a claim is comprised of a series of acts, so long as one

of the acts occurred within the limitations period, the entire

time period may be considered. See, e.g., Jennings v. Univ. of

N.C. at Chapel Hill, 240 F. Supp. 2d 492, 499–500 (M.D.N.C.

2002). Even assuming the acts giving rise to Plaintiff’s Title

IX claims were part of a series of acts occurring from 2016

4 RSNA did not move to dismiss Plaintiff’s Title IX

retaliation claim. Therefore, that claim survives a motion to

dismiss.

until Plaintiff left the DNP program in June 2018, (see Compl.

(Doc. 1) ¶¶ 37–38, 56–57), the three-year statute of limitations

has run. That causes this court great concern because it means

Plaintiff’s claims would ultimately not be adjudicated on the

merits but instead disposed of on technical procedural grounds.

That would not be in accordance with the Fourth Circuit’s strong

preference “in favor of resolving cases on their merits instead

of disposing of them on technicalities.” Laber v. Harvey, 438

F.3d 404, 426 (4th Cir. 2006) (en banc); see also Blaylock, 2020

WL 3979667, at *3 (discretionarily granting motion for service

extension because, inter alia, “there is a preference to resolve

cases on the merits rather than technical procedural grounds”).

This court concludes that the balance of the relevant

factors weighs in favor of granting a discretionary extension of

time for service. Although not all of the Pioneer factors weigh

in favor of an extension, this court ultimately finds the

factors weighing against an extension to be offset by the

crucial non-Pioneer factor concerning the prejudice imposed on a

plaintiff by a statute of limitations bar. Granting this

extension is also consistent with the Fourth Circuit’s

admonition that in cases like this one where there was actual

notice, the relevant procedural rules should be applied

liberally. See Armco, 733 F.2d at 1089; see also Elkins, 213

F.R.D. at 275.

This court does not grant an extension lightly, especially

considering the facts do not support a finding of good cause

under federal law for an extension. See supra Section III.A.1.

“[T]he rules are there to be followed,” Armco, 733 F.2d at 1089,

“to secure the just, speedy, and inexpensive determination of

every action and proceeding,” Fed. R. Civ. P. 1. Plaintiff did

not follow the rules here. If that pattern continues, it may

result in substantive consequences directly affecting whether

Plaintiff’s case will be adjudicated on its merits. Further

disregard of the rules will not be tolerated.

B. Eleventh Amendment Immunity

The Eleventh Amendment to the United States Constitution

provides that “[t]he Judicial power of the United States shall

not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any

Foreign State.” U.S. Const. amend. XI. “At its core, the

Eleventh Amendment bars federal courts from exercising

jurisdiction over suits against nonconsenting states or state

entities.” Kadel v. N.C. State Health Plan for Tchrs. & State

Emps., 12 F.4th 422, 428 (4th Cir. 2021).

State sovereign immunity bars suit not only against a

state, but also against an instrumentality of a state, such as a

state agency, often referred to as an “arm of the State.” See

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 124

(1984) (“It is clear, of course, that in the absence of consent

a suit in which the State or one of its agencies or departments

is named as the defendant is proscribed by the Eleventh

Amendment.”); see also McCray v. Md. Transit Admin., 741 F.3d

480, 483 (4th Cir. 2014); Bland v. Roberts, 730 F.3d 368, 389–90

(4th Cir. 2013); Constantine v. Rectors & Visitors of George

Mason Univ., 411 F.3d 474, 479 (4th Cir. 2005). State

universities, including UNCG, are entitled to Eleventh Amendment

immunity. See Emanuelson v. Univ. of N.C. at Greensboro, No.

1:17CV534, 2018 WL 1779342, at *4 (M.D.N.C. 2018) (“UNCG is a

constituent institution of the University of North Carolina and,

as such, UNCG, like the University of North Carolina, is an

agency of the State of North Carolina entitled to Eleventh

Amendment immunity.”); McCants v. NCAA, 251 F. Supp. 3d 952,

959–60 (M.D.N.C. 2017) (noting that UNC has Eleventh Amendment

immunity); McAdoo v. Univ. of N.C. at Chapel Hill, 248 F. Supp.

3d 705, 718–19 (M.D.N.C. 2017) (concluding that UNC is an arm of

the state).

RSNA argues that Plaintiff’s 42 U.S.C. § 1983 claims, as

well as Plaintiff’s state law claims, should be dismissed

pursuant to Federal Rule of Civil Procedure 12(b)(1) as barred

by the Eleventh Amendment. (RSNA’s Br. (Doc. 48) at 10–14.) RSNA

contends that “[b]ecause RSNA is alleged to be a ‘joint/single

entity’ with UNCG, then RSNA is also entitled to Eleventh

Amendment immunity.” (Id. at 10.)

This court previously found that the Eleventh Amendment

barred Plaintiff’s unjust enrichment claim against UNCG, and

Plaintiff conceded that the Eleventh Amendment barred her § 1983

claims and North Carolina constitutional claim against UNCG

insofar as she requested damages. (See Mem. Op. & Order

(Doc. 13) at 12–18.) Plaintiff alleges that “RSNA is a

joint/single entity with UNCG under applicable law.” (Compl.

(Doc. 1) ¶ 7.) Taking that allegation as true, if UNCG is immune

from suit, then so is RSNA because they are one and the same.

However, Plaintiff also alleges that RSNA is a private, non-

profit corporation. (See id. ¶ 6.) This court must determine

what to make of these contradictory allegations.

Plaintiff argues that she “is entitled to plead alternative

or inconsistent facts at this early stage.” (Pl.’s Resp.

(Doc. 52) at 16.) Plaintiff points to her allegation that RSNA

is a “non-profit corporation duly organized under the laws of

the State of North Carolina” as suggesting that RSNA is not

entitled to Eleventh Amendment immunity. (Id. (internal

quotation marks omitted) (quoting Compl. (Doc. 1) ¶ 6).)

[A] court need not feel constrained to accept as truth

conflicting pleadings that make no sense, or that

would render a claim incoherent, or that are

contradicted either by statements in the complaint

itself or by documents upon which its pleadings rely,

or by facts of which the court may take judicial

notice.

In re Livent, Inc. v. Noteholders Sec. Litig., 151 F. Supp.

2d 371, 405–06 (S.D.N.Y. 2001) (collecting cases). Here,

Plaintiff has set out two conflicting statements about

RSNA; both cannot be true. Plaintiff alleges “RSNA is a

non-profit corporation duly organized under the laws of the

State of North Carolina.” (Compl. (Doc. 1) ¶ 6.) Plaintiff

also alleges “RSNA is a joint/single entity with UNCG under

applicable law and otherwise acted in concert with UNCG or

others as it relates to the unlawful conduct alleged

herein.” (Id. ¶ 7.)

This court finds Plaintiff cannot overcome the Eleventh

Amendment’s bar to suing a state entity by pleading internally

inconsistent allegations that RSNA is both a public and private

entity. Rule 8 does not “grant[] plaintiff[] license to plead

inconsistent assertions of facts within the allegations that

serve as the factual predicates for an independent, unitary

claim.” In re Livent, 151 F. Supp. 2d at 407. In In re Livent,

the court analyzed “to what extent the pleadings in the

complaint may be self-contradictory,” such as when pleadings

allege “both that plaintiffs had knowledge of a critical fact

and that they had no such knowledge; or that plaintiffs had no

awareness of specific information revealed in some particular

document, while at the same time asserting that they relied upon

the contents of that same document.” Id. at 405. The court found

that it was not required to accept as true conflicting pleadings

when those pleadings are contradicted by other statements in the

complaint or by documents upon which the complaint relies. Id.

Thus, the court granted the motion to dismiss because “the

allegations of fraud [were] internally self-contradictory, and

the inconsistencies defeat[ed] a reasonable inference that the

requisite scienter standard the pleadings must demonstrate ha[d]

been satisfied.” Id. at 407.

Where, as here, a plaintiff pleads contradictory

allegations, those inconsistencies defeat a reasonable inference

in the plaintiff’s favor. See id.; see also Colden v. W. Coast

Life Ins. Co., Civil Action No. RDB-12-1691, 2013 WL 1164922, at

*5 (D. Md. Mar. 19, 2013) (“Rule 8 prohibits the pleading of

‘internally conflicting factual assertions,’ which serve as the

‘predicates for an independent, unitary claim’” (quoting In re

Livent, 151 F. Supp. 2d at 406)). Plaintiff has pled internally

conflicting factual assertions. (Compare Compl. (Doc. 1) ¶ 6,

with id. ¶ 7.) This court declines to infer that RSNA is a

private non-profit company and finds sovereign immunity

precludes RSNA from suit. Accordingly, Plaintiff’s § 1983 and

state law claims (claims three, four, five, and eight), will be

dismissed against RSNA for the same reasons those claims were

dismissed against UNCG. (See Mem. Op. & Order (Doc. 13) at 12–

18.)

C. Title IX

Title IX states that “[n]o person . . . shall, on the basis

of sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). Title IX contains an implied

private right of action permitting aggrieved parties to sue

educational institutions for alleged violations. Cannon v. Univ.

of Chi., 441 U.S. 677, 713 (1979). Title IX liability can extend

to the educational institution when teachers or other students

harass a victim student due to the victim’s sex. See Davis v.

Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646–47 (1999) (finding

that a school can be liable for “known acts of student-on-

student sexual harassment [when] the harasser is under the

school’s disciplinary authority”); Feminist Majority Found. V.

Hurley, 911 F.3d 674, 695–96 (4th Cir. 2018) (finding plaintiffs

sufficiently alleged that public university exerted substantial

control over context in which student-on-student sexual

harassment occurred and were deliberately indifferent to that

harassment).

To establish a Title IX claim on the basis of

sexual harassment, a plaintiff must show that (1) she

was a student at an educational institution receiving

federal funds, (2) she was subjected to harassment

based on her sex, (3) the harassment was sufficiently

severe or pervasive to create a hostile (or abusive)

environment in an educational program or activity, and

(4) there is a basis for imputing liability to the

institution.

Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007).

RSNA moves to dismiss Plaintiff’s claim for sex discrimination

or a sexually hostile work environment under Title IX. (RSNA’s

Br. (Doc. 48) at 7–10.)5 Specifically, RSNA argues “Plaintiff

fails to satisfy the fourth element” of this claim. (Id. at 7.)

Plaintiff does not allege that her harasser was formally

affiliated with RSNA. When a federal funding recipient does not

engage in harassment directly, the court can impute liability to

an institution if it is “deliberately indifferent to sexual

5 As Plaintiff notes, (see Pl.’s Resp. (Doc. 52) at 10 n.2),

RSNA does not move to dismiss Plaintiff’s claim of retaliation

in violation of Title IX, (see RSNA’s Br. (Doc. 48)). Therefore,

this court declines to determine whether Plaintiff has plausibly

alleged a retaliation claim under Title IX.

harassment, of which [it has] actual knowledge,” Davis, 526 U.S.

at 650, and its “deliberate indifference . . . cause[s] [the

victim] to undergo harassment or make[s] [her] liable or

vulnerable to it,” id. at 645 (internal quotation marks

omitted). Three prongs are required: actual knowledge,

deliberate indifference, and Plaintiff’s resulting vulnerability

to future harassment. Plaintiff alleges sufficient facts to

plausibly establish that RSNA had actual knowledge of the

harassment, was deliberately indifferent to it, and made her

vulnerable to continued harassment by the male CRNA.

First, Plaintiff plausibly alleges actual knowledge by

RSNA. Plaintiff first complained about “sexual harassment and

physical assault” to two officials, one of whom was the RSNA

Assistant Program Administrator of the DNP, in July 2016—her

first month at WakeMed. (Compl. (Doc. 1) ¶¶ 36–37, 41.)6 She

6 Plaintiff also alleges that Defendants had extensive

knowledge of previous complaints by other victims of sexual

harassment. (Compl. (Doc. 1) ¶¶ 26-28.) However, Plaintiff fails

to provide any details about these alleged complaints, including

the identities of the victims, dates of the reports, content of

the allegations, or information about who received the

complaints. Though this court considers Plaintiff’s allegations

regarding past victims conclusory at this stage, Plaintiff

provides enough information about her own experience to

establish the elements of a sexual harassment claim without

relying on prior victims at this stage in the pleadings. Though

more information may arise at a later stage, this court will not

incorporate these conclusory allegations into its present

analysis.

later complained a second time and Dr. Stone and others were

advised “that ‘[e]very encounter with [the male CRNA] has

escalated, and the last encounter left me feeling sexually

exploited for weeks.’” (Id. ¶¶ 44–45.) These two instances

sufficiently establish actual knowledge on the part of RSNA. See

Jennings, 482 F.3d at 700 (finding that where victim met with

“an official responsible for fielding sexual harassment

complaints” to describe harassment, sufficient evidence existed

for a jury to decide whether the victim “gave [the official],

and by extension UNC, actual notice” of harassment).

Plaintiff also alleges deliberate indifference by RSNA. An

institution will be deemed deliberately indifferent to

harassment “only where [its] response to the harassment or lack

thereof is clearly unreasonable in light of the known

circumstances.” Rouse v. Duke Univ., 914 F. Supp. 2d 717, 723–24

(M.D.N.C. 2012), aff’d, 535 F. App’x 289 (4th Cir. 2013)

(alteration in original) (quoting Davis, 526 U.S. at 648). After

Plaintiff’s July 2016 complaint, no action was taken. (Compl.

(Doc. 1) ¶ 43.) Moreover, the Chief CRNA at WakeMed made clear

that no one from UNCG or RSNA so much as attempted to keep

Plaintiff separate from her harasser, in spite of UNCG and

RSNA’s ability to do so. (Id. ¶ 44.) Thus, Plaintiff was forced

to continue working “under the male CRNA’s direct supervision”

even after both of her complaints to RSNA. (Id. ¶ 54.) The

Fourth Circuit has found far more robust responses than this one

plausibly inadequate. See Feminist Majority Found. v. Hurley,

911 F.3d 674, 689 (4th Cir. 2018) (finding that a university’s

response to harassment complaints was plausibly unreasonable

even when the university held “listening circles,” sent an email

about the issue, and gave a threatened student a campus police

guard for one evening); Jennings, 482 F.3d at 701 (finding that

a “[u]niversity’s failure to take any action to remedy the

[harassment] would allow a rational jury to find deliberate

indifference to ongoing discrimination”).

Moreover, RSNA controlled Plaintiff’s educational

environment. Deliberate indifference may only be alleged where

the institution “exercises substantial control over both the

harasser and the context in which the known harassment occurs.”

Davis, 526 U.S. at 645. RSNA argues that “[t]o suggest that RSNA

had any control over WakeMed’s call schedule, much less

‘substantial control’ sufficient to demonstrate deliberate

indifference, defies logic” because the male CRNS “worked the

call schedule at WakeMed, [so] it was inevitable that Plaintiff

might ‘be assigned with him on off-shifts.’” (RSNA’s Br.

(Doc. 48) at 8–9 (quoting Compl. (Doc. 1) ¶ 46).) However,

Plaintiff alleges that the Chief CRNA at WakeMed told her UNCG

and RSNA officials could “obtain . . . restrictions on

[Plaintiff’s] contacts with the male CRNA”.” (Compl. (Doc. 1)

¶ 44.) Nor did WakeMed get the final say over student

supervision: in fact, the WakeMed employee advised Plaintiff to

talk with her administrators from UNCG and RSNA to get their

“authorization” for the change. (Id.) While RSNA may not have

had complete authority over the male CRNA’s actions, RSNA had

the ability to remove him from a supervisory role over Plaintiff

and could thereby exercise control over supervision assignments.

Thus, by communicating the issues to Dr. Stone, Plaintiff

reported the harassment to “an official of the recipient entity

with authority to take corrective action to end the

discrimination.” Gebser, 524 U.S. at 290.

Furthermore, Plaintiff alleges that RSNA continued to

assign Plaintiff to the same male CRNA even after she advised

them in November 2016 of her continued hostile environment. (See

Compl. (Doc. 1) ¶¶ 37, 44, 54.) Plaintiff’s repeated allegation

that Defendants “assigned” her to the male CRNA, (id.), also

implies RSNA’s substantial control over the harasser’s

supervisory role within the UNCG/RSNA program.7

7 While Plaintiff does not provide details about how the

supervision program is orchestrated, taking all facts in the

light most favorable to Plaintiff, she has clearly alleged that

RSNA played a role in her assignments.

RSNA also had substantial control over the context in which

the known harassment occurred. Plaintiff alleges that she was

“assigned” to WakeMed by RSNA as part of her curriculum in the

DNP program. (Id. ¶¶ 17, 37, 54.) Her monthslong presence at

WakeMed was a direct part of her UNCG/RSNA education and is

reasonably inferred from the Complaint as a matter within RSNA’s

discretion. This alone means RSNA could influence the clinical

work environment—by all accounts, RSNA and UNCG placed Plaintiff

in that environment over other clinical offerings. Plaintiff

suggests the availability of alternative offerings by faulting

RSNA for “continuing to assign [Plaintiff] to perform clinical

work at WakeMed hospital.” (Id. ¶ 54.) These facts, along with

Dr. Stone’s supervisory role and ability to restrict Plaintiff’s

contacts within the hospital, constitute plausible allegations

of substantial control.

Finally, as is required for a deliberate indifference

claim, Plaintiff plausibly alleges that she was left vulnerable

to harassment after her supervisors dismissed her initial

complaints. When she reached out again to Drs. Shedlick and

Stone on November 1, Plaintiff seems to indicate that the

harassment had continued since her first complaint four months

earlier, stating “[e]very encounter with [the male CRNA] has

escalated, and the last encounter left [her] feeling sexually

exploited for weeks.” (Id. ¶ 45 (internal quotation marks

omitted).) Contrary to RSNA’s assertions, Plaintiff also alleges

elsewhere that the harassment occurred “[t]hroughout the time

[Plaintiff] performed her clinical work at WakeMed,” referencing

the male CRNA’s repeated behavior. (Id. ¶ 38.) Moreover, Davis

does not require that a plaintiff be actually subjected to

further harassment after her complaint, but rather that she be

made “‘liable or vulnerable’ to it.” 526 U.S. at 645 (quoting

Random House Dictionary of the English Language 1415 (1966)).

Upon bringing the issue up with her supervisors again, Plaintiff

was chastised and informed she would continue working with her

harasser. (Compl. (Doc. 1) ¶ 46.) Despite Plaintiff’s

complaints, she alleges “no meaningful investigation . . . ever

occurred.” (Id. ¶ 43.) Plaintiff was subsequently assigned, by

RSNA, to further shifts under the direct supervision of her

harasser. (Id. ¶ 54.) Thus, Plaintiff has plausibly alleged that

RSNA, at a minimum, left her vulnerable to continued harassment.

Plaintiff has alleged facts to support all four elements of a

sexual harassment claim, including the multiple prongs required

to impute liability to RSNA. Thus, RSNA’s motion to dismiss

Plaintiff’s Title IX claim will be denied.

D. Disability Discrimination

1. Americans with Disabilities Act (“ADA”)

RSNA also moves to dismiss Plaintiff’s ADA claims. RSNA

argues Plaintiff’s ADA discrimination claim should be dismissed

because Plaintiff failed to sufficiently allege RSNA failed to

provide reasonable accommodations and dismissed Plaintiff

because of her disability. (RSNA’s Br. (Doc. 48) at 14–15.) RSNA

argues Plaintiff’s ADA retaliation claim should be dismissed

because Plaintiff fails to sufficiently allege RSNA caused her

dismissal from the nurse anesthesia program. (Id. at 15–17.)

a. Disability Discrimination

Under Title II of the ADA, “no qualified individual with a

disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. In order

to state a claim under the ADA, Plaintiff must allege that

(1) “she has a disability, (2) she is otherwise qualified to

receive the benefits of a public service, program, or activity,

and (3) she was excluded from participation in or denied the

benefits of such service, program, or activity, or otherwise

discriminated against, on the basis of her disability.”

Constantine, 411 F.3d at 498; see also Baird ex rel. Baird v.

Rose, 192 F.3d 462, 467–70 (4th Cir. 1999). Title II of the ADA

also “requires . . . universities to make reasonable

accommodations for disabled students to ensure that they are

able to participate in the educational program.” Constantine,

411 F.3d at 488.

RSNA does not dispute that Plaintiff has a disability. (See

RSNA’s Br. (Doc. 48) at 15; see also Compl. (Doc. 1) ¶ 47.)

Accordingly, this court considers whether Plaintiff has

sufficiently alleged the latter two elements of an ADA

discrimination claim.

This court first addresses whether Plaintiff has adequately

alleged RSNA failed to reasonably accommodate her disability.

Plaintiff alleges she requested, and received, reasonable

accommodations from the University, “including extended time for

completing exams and placement in a quiet environment when

taking exams to limit interruptions.” (Compl. (Doc. 1) ¶ 48.)

Although Plaintiff alleges that Dr. Shedlick and Dr. Stone

“mocked” her ADHD and threated to dismiss her from the program,

(id. ¶ 50), these facts do not materially affect the actual

accommodations of extended time and a quiet testing environment.

Plaintiff also alleges that Dr. Shedlick and Dr. Stone

“repeatedly interrupted [Plaintiff] during testing” to ensure

Plaintiff did not have a quiet test-taking environment. (Id.

¶ 49.) Plaintiff does not allege when or how often these

interruptions occurred, or how severely they affected her quiet

environment. Nor does she allege any facts indicating that these

interruptions affected her test-taking performance. This single

fact is the sole allegation that Plaintiff’s accommodations were

anything short of reasonable, and without more, is insufficient

to plausibly allege RSNA failed to accommodate Plaintiff’s

disability.

Turning to whether Plaintiff has plausibly alleged she was

discriminated against on the basis of her disability, this court

finds Plaintiff has failed to allege any facts to suggest she

was dismissed from the DNP program due to her ADHD. (See id.

¶ 135.) Plaintiff specifically alleges she was dismissed from

the program for non-academic reasons. (Id. ¶ 56.) Plaintiff does

not allege this “false reason[]” was “orchestrated” to dismiss

her because of her ADHD, or that her ADHD was the reason she was

dismissed. (See id.)

In summary, Plaintiff has failed to allege facts that

suggest “more than a sheer possibility that” RSNA failed to

provide reasonable accommodations or that RSNA dismissed

Plaintiff from the program because of her disability. See Iqbal,

556 U.S. at 678. Plaintiff’s ADA claim will therefore be

dismissed pursuant to Rule 12(b)(6).

b. Disability Retaliation

Plaintiff also alleges a claim of retaliation under the

ADA. In order to plausibly state a claim of retaliation under

the ADA, a plaintiff must allege “(1) that she has engaged in

conduct protected by the ADA; (2) that she suffered an adverse

action subsequent to engaging in the protected conduct; and

(3) that there was a causal link between the protected activity

and the adverse action.” Freilich v. Upper Chesapeake Health,

Inc., 313 F.3d 205, 216 (4th Cir. 2002).

RSNA argues Plaintiff failed to plausibly allege “that her

report to OARS caused her dismissal from the DNP program.”

(RSNA’s Br. (Doc. 48) at 16.) This court agrees. Although

Plaintiff alleges her supervisors threatened potential

retaliation if Plaintiff complained, (see Compl. (Doc. 1)

¶ 50.), Plaintiff fails to plausibly allege that Dr. Shedlick

and Dr. Stone knew she complained or that their hostile conduct

began or escalated in response to the disability discrimination

complaint to OARS. Because Plaintiff fails to allege her

supervisors were aware of her report to OARS, her retaliation

claim fails. See Graves v. Bank of Am., N.A., 54 F. Supp. 3d

434, 443 (M.D.N.C. 2014) (finding that in the Title VII context,

“[e]mployer knowledge of an EEOC charge is ‘absolutely

necessary’ for a finding of retaliation” (quoting Dowe v. Total

Action Against Poverty, 145 F.3d 653, 657 (4th Cir. 1988)));

(cf. Compl. (Doc. 1) ¶¶ 42, 45 (Plaintiff alleges that she

reported discrimination directly to the supervisors who began to

retaliate against her.).)

Moreover, the lack of a date for the OARS complaint makes

it impossible to draw sufficient temporal linkage between the

complaint and Plaintiff’s dismissal. Plaintiff alleges general

dates demonstrating that her supervisors began treating her

poorly after she complained twice about sexual harassment. (See

Compl. (Doc. 1) ¶¶ 42, 45, 53.) However, Plaintiff fails to

adequately place her OARS complaint on this timeline.

Plaintiff’s failure to allege an approximate date for her OARS

complaint makes it entirely possible that Plaintiff reported

disability discrimination well after her supervisors’ two-year

“near daily campaign to inflict maximum harm upon Ms. Davis” was

already underway. (Id. ¶ 53.) For these reasons, Plaintiff is

unable to plausibly allege a sufficient causal link between her

dismissal and her OARS complaint. Plaintiff’s ADA retaliation

claim will be dismissed pursuant to Rule 12(b)(6).

2. Rehabilitation Act

Finally, Plaintiff brings a claim under § 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794. (See Compl.

(Doc. 1) ¶¶ 138–52.) RSNA argues Plaintiff’s claim of

discrimination and retaliation in violation of the

Rehabilitation Act should be dismissed for the same reasons as

Plaintiff’s ADA claim. (RSNA’s Br. (Doc. 48) at 17.) The

Rehabilitation Act differs from the ADA “only with respect to

the third element, causation. To succeed on a claim under the

Rehabilitation Act, the plaintiff must establish [s]he was

excluded ‘solely by reason of’ [her] disability,” a stricter

standard than that imposed by the ADA. Halpern v. Wake Forest

Univ. Health SCiS, 669 F.3d 454, 461-62 (4th Cir. 2012) (quoting

Baird, 192 F.3d at 468–69).

Here, “[b]ecause [Plaintiff] failed to state a viable ADA

claim, [she] failed to state a cognizable Rehabilitation Act

claim.” Wicomico Nursing Home v. Padilla, 910 F.3d 739, 751 (4th

Cir. 2018). This court will dismiss Plaintiff’s Rehabilitation

Act claim.

IV. CONCLUSION

For the foregoing reasons, this court will grant in part

and deny in part RSNA’s Motion to Dismiss, (Doc. 47).

IT IS THEREFORE ORDERED that RSNA’s Motion to Dismiss,

(Doc. 47), is GRANTED IN PART and DENIED IN PART.

The motion is GRANTED as to Plaintiff’s § 1983 claims,

North Carolina constitutional claim, unjust enrichment claim,

ADA claim, and Rehabilitation Act claim (Claims Three, Four,

Five, Six, Seven, and Bight). Those claims are DISMISSED.

The motion is DENIED as to Plaintiff’s Title IX claims

(Claims One and Two).

IT IS FURTHER ORDERED that the time for Plaintiff to

properly serve RSNA is extended for two weeks under this court’s

discretionary authority to extend time for service of process.

This the 22nd day of August, 2022.

Wy Wigan Osten Me

United States District Ju

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