United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge
proceeding pro se, alleges that Defendants refused
to hire him for a position as a water sewer worker in
retaliation for his earlier participation in a class action
lawsuit against Defendant D.C. Water and Sewer Authority
(“Authority”) in violation of Title VII of the
Civil Rights Act of 1964. Defendants have moved to dismiss
the Complaint under Federal Rules of Civil Procedure 12(b)(5)
and 12(b)(6). Defendants argue that the Complaint must be
dismissed because Plaintiff has not properly served any
Defendant and that, regardless, the individual
named-Defendants should be dismissed under Rule 12(b)(6)
because they are not proper parties to a lawsuit brought
under Title VII. Upon consideration of the pleadings,
relevant legal authorities, and the record as a whole, the
Court GRANTS-IN-PART and DENIES-IN-P A R T WITHOUT PREJUDICE
Defendants' [ 5 ] Motion to Dismiss. The Court will
dismiss certain individual Defendants from the case and grant
Plaintiff an additional 30 days to properly serve the
purposes of the motion before the Court, the Court accepts as
true the well-pleaded allegations in Plaintiff's
Complaint. The Court does “not accept as true, however,
the plaintiff's legal conclusions or inferences that are
unsupported by the facts alleged.” Ralls Corp. v.
Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C.
Cir. 2014). Further, because Plaintiff proceeds in this
matter pro se, the Court must consider not only the
facts alleged in Plaintiff's Complaint, but also the
facts alleged in Plaintiff's Opposition to
Defendant's Motion to Dismiss. See Brown v. Whole
Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir.
2015) (“a district court errs in failing to consider a
pro se litigant's complaint ‘in light
of' all filings, including filings responsive to a motion
to dismiss”) (quoting Richardson v. United
States, 193 F.3d 545, 548 (D.C. Cir. 1999)).
alleges that in 2013 he participated in a class action
lawsuit against the Authority alleging that the Authority
discriminated against African American employees. Am. Compl.,
ECF No. 3, at 1. Plaintiff claims that he had been
constructively discharged because of his race. Id.
After his participation in that lawsuit, Plaintiff allegedly
applied for the position of water sewer worker, grade 6, with
the Authority but was denied the position. Id.
Plaintiff maintains that the Authority's failure to hire
him for the position was an act of retaliation for his
participation in the 2013 class action. Id. at 1-2.
Plaintiff names Defendant George Hawkins in his Amended
Complaint as the individual with ultimate responsibility for
hiring and firing employees at the Authority, and Defendants
Raymond Haynesworth, Alan Martin and Frank Baylor as Mr.
Hawkins' management team “responsible for this
process.” Id. at 2-3.
Federal Rule 12(b)(5)
the absence of service of process (or waiver of service by
the defendant), a court ordinarily may not exercise power
over a party the complaint names as defendant.”
Murphy Bros. v. Michetti Pipe Stringing, Inc., 526
U.S. 344, 350 (1999). Pursuant to Federal Rule of Civil
Procedure 12(b)(5), “if the plaintiff does not properly
effect service on a defendant, then the defendant may move to
dismiss the complaint” without prejudice. Hilska v.
Jones, 217 F.R.D. 16, 20 (D.D.C. 2003). “The party
on whose behalf service is made has the burden of
establishing its validity when challenged; to do so, he must
demonstrate that the procedure employed satisfied the
requirements of the relevant portions of [Federal Rule of
Civil Procedure 4] and any other applicable provision of
law.” Light v. Wolf, 816 F.2d 746, 751 (D.C.
Cir. 1987) (internal quotation omitted).
Federal Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a complaint on the grounds that it “fail[s] to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not]
suffice if it tenders ‘naked assertion[s]' devoid
of ‘further factual enhancement.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
first move to dismiss the Complaint for lack of adequate
service. “Absent proper service of process, a Court may
not exercise personal jurisdiction over the defendants named
in the complaint.” Dominguez v. D.C., 536
F.Supp.2d 18, 22 (D.D.C. 2008). Plaintiff concedes that
service has not been properly completed, but asks the Court
to not dismiss his Complaint because he is proceeding pro
se and his error was harmless and can be corrected.
Pl.'s Opp'n at 4.
Court is mindful that “[p]ro se litigants are allowed
more latitude than litigants represented by counsel to
correct defects in service of process and pleadings.”
Moore v. Agency for Int'l D e v. , 994 F.2d 874,
876 (D.C. Cir. 1993). Accordingly, the Court finds that
dismissal of this pro se Complaint for failure to
adhere to procedural requirements for service would not be
appropriate at this time. That being said, “[t]he
accommodation a court should provide a pro se litigant is not
without limits.” Cruz-Packer v. D.C., 539
F.Supp.2d 181, 188 (D.D.C. 2008). The Court will not simply
ignore the requirement that service be effectuated and move
forward with this case. Instead, the Court will give
Plaintiff another opportunity to properly serve the
Defendants, and file proof of such service, by May 19,
2017-30 days from the date of this Order. Plaintiff must
properly serve Defendants by this date, or risk dismissal
of this case. The Court will DENY Defendants' Motion
to Dismiss for lack of effective service at this time WITHOUT
PREJUDICE to it being refiled if service is not completed
properly by May 19, 2017.
Defendants alternatively move to dismiss Plaintiff's
Complaint under Rule 12(b)(6) for failure to state a claim
against the four individual Defendants. In his Opposition,
Plaintiff states that he “is not suing the Defendants
Baylor, Haynesworth, and Martin as individual Defendants
under Title VII of the Civil Rights Act of 1964 and hereby
dismisses them as Defendants.” Pl.'s Opp'n at
1. Based on this representation, the Court GRANTS-IN-P A R T
Defendants' Motion to Dismiss in that it DISMISSES
Baylor, Haynesworth, and Martin as Defendants in this case.
The Court does not reach the merits of Defendants' Rule
12(b)(6) motion with respect to Defendant Hawkins, whom
Plaintiff has not agreed to voluntarily dismiss, because, as
explained above, the Court does not yet have personal
jurisdiction over Defendant Hawkins due to Plaintiff's
failure to serve him. See Hilska, 217 F.R.D. at 23
n.10 (“to proceed to a Rule 12(b)(6) determination, the
court must first determine that the plaintiff has properly
effected service of process.”). The Court does,