Opinion
1:21-CV-622-RP
05-03-2023
YVETTE MELENDEZ, Plaintiff, v. MASON ARNOLD, Defendant.
TO THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
MARK LANE UNITED STATES MAGISTRATE JUDGE
Before the court is Defendant Mason Arnold's Motion to Dismiss (Dkt. #12) and all related briefing. After reviewing the pleadings and the relevant case law, and determining that a hearing is not necessary, the undersigned submits the following Report and Recommendation to the District Court.
Dkt. #13 styled as “Motion to Proceed with Civil Action” appears to be the Response to Defendant's Motion to Dismiss. Accordingly, the undersigned will treat it as such and not an additional motion.
The motion was referred by United States District Judge Robert Pitman to the undersigned for a Report and Recommendation as to the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Text Order in Docket No. 1:21-cv-622.
I. Background
Yvette Melendez, proceeding pro se, is suing Mason Arnold in a dispute that arose out Melendez's employment with the Veggie Noodle Co., LLC, doing business as CeCe's Veggie Co. (“CeCe's”). Arnold owns a 23-percent subordinated interest in CeCe's. Dkt. #1-4 at 1. Melendez asserts a claim under Title VII of the Civil Rights Act of 1964. Dkt. #1 at 2 (“Complaint”). Melendez alleges sex discrimination, harassment, and retaliation. Dkt. #1-1 at 1; see Dkt. #1 at 4.
Melendez was employed by CeCe's from late 2016 to October 29, 2019. Dkt. #1-1 at 9 (EEOC Complaint). Melendez filed an EEOC Complaint in March or April 2020. See Dkt. 1 at 3 (alleging EEOC Complaint was filed April 29, 2020); see also Dkt. #1-1 at 15 (dated “March 31”).
In her Complaint in the instant action and in her EEOC Complaint, Melendez alleges that she was subjected to a hostile work environment, which included superiors swearing at her in front of others and undermining her management style, and that her attempts to remedy the situation with the assistance of various superiors were unsuccessful. See, e.g., Dkt. #1-1 at 1. She alleges that her attempts to achieve a “respectful workplace” were effectively ignored by management. Id.
The EEOC provided a right-to-sue letter to Melendez on April 15, 2021, noting that it would not proceed further with its investigation. Dkt. #1-1 at 5. Melendez timely filed this action. Dkt. #1 at 1.
Arnold now moves to dismiss this action under, inter alia, Federal Rule of Civil Procedure 12(b)(4) and (5) as well as Rule 12(b)(6), arguing deficient service of process and that Title VII claims may not be asserted against an individual. Dkt. #12 at 3. Arnold also urges the court to grants his Motion as unopposed because Melendez filed her Response late in violation of Local Rule CV-7(d)(2) without explanation. Dkt. #14 at 2. The undersigned benefitted from Melendez's Response. Accordingly, the undersigned declines to recommend that this Motion be treated as unopposed. At the same time, the undersigned admonishes Melendez that pro se parties are expected to comply with the rules of procedure and Local Rules of the Western District of Texas. See Houston v. Queen, 606 Fed.Appx. 725, 730 (5th Cir. 2015).
II. Legal Standards
A. Rule 12(b)(4) and Rule 12(b)(5) Motion to Dismiss
The defenses of insufficient process and insufficient service of process may be asserted by motion and must be asserted before pleading. FED. R. CIV. P. 12(b). However, those defenses and others can be waived if not timely asserted. FED. R. CIV. P. 12(h)(1).
To complete service of process in federal court, a plaintiff must follow two steps. First, a plaintiff must present a summons to the clerk for signature and seal; the clerk “must sign, seal, and issue it to the plaintiff for service on the defendant.” FED. R. CIV. P. 4(b). Upon issuance of the federal summons, a plaintiff must then serve the summons and original complaint in accordance with Federal Rule of Civil Procedure 4(e). “A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” FED. R. CIV. P. 4(c). Failure to comply with Rule 4 results in insufficient service of process which prevents the federal court from exercising jurisdiction over the individual defendant.
“If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id. at 4(m).
Federal Rule of Civil Procedure 12(b)(5) authorizes a court to dismiss a case for “insufficient service of process.” Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir. 1994) (“A district court . . . has broad discretion to dismiss an action for ineffective service of process.”). “In the absence of [proper] service of process . . . a court ordinarily may not exercise [jurisdiction] over a party the complaint names as a defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999).
“‘When service of process is challenged, the serving party bears the burden of proving its validity or good cause' for failing properly to effect service.” Shabazz v. City of Hous., 515 Fed.Appx. 263, 264 (5th Cir. 2013) (quoting Sys. Signs Supplies v. U.S. Dep't of Just., 903 F.2d 1011, 1013 (5th Cir. 1990) (per curiam)).
B. Rule 12(b)(6) Motion to Dismiss
Pro se complaints are liberally construed in favor of the plaintiff. Haines 404 U.S. at 52021. Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” this standard demands more than unadorned accusations, “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. v. Twombly, 550 U.S. 544, 555-57 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. The Supreme Court has made clear this plausibility standard is not simply a “probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard is properly guided by “[t]wo working principles.” Id. at 678. First, although “a court must ‘accept as true all of the allegations contained in a complaint,' that tenet is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Second, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, in considering a motion to dismiss, the court must first identify pleadings that are no more than legal conclusions not entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations and determine whether those allegations plausibly give rise to an entitlement to relief. If not, “the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679. In sum, a “plaintiff must plead enough facts to nudge the claims across the line from conceivable to plausible.” Hinojosa v. Livingston, 807 F.3d 657, 684 (5th Cir. 2015) (quoting Iqbal, 556 U.S. at 680) (cleaned up).
“Generally a district court errs in dismissing a Pro se complaint for failure to state a claim under Rule 12(b)(6) without giving the plaintiff an opportunity to amend.” Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); see also Hale v. King, 642 F.3d 492, 503, n. 36 (5th Cir. 2011) (citing Bazrowx, 136 F.3d at 1054 and quoting Pena, 157 F.3d at 987, n. 3.). But Pro se status does not offer an “impenetrable shield, for one acting Pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Farguson v. MBank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986).
III. Analysis
Arnold moves to dismiss Melendez's Complaint on several grounds. However, the undersigned notes only two grounds are dispositive: (1) that the Complaint should be dismissed pursuant to Rules 12(b)(4) and (5); and (2) that the Complaint should be dismissed pursuant to Rule 12(b)(6).
A. Deficient Service or Process
Arnold argues Melendez's Complaint should be dismissed because she failed to timely and properly serve Arnold. Dkt. #12 at 3. Melendez's Response does not respond to Arnold's argument. See generally Dkt. #13.
Lack of proper service of process ordinarily prevents a court from exercising jurisdiction over an improperly served defendant. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). A plaintiff must serve the summons and original complaint in accordance with Federal Rule of Civil Procedure 4(e). “The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m).” FED. R. CIV. P. 4(c). Rule 4(m) provides a defendant must be served within 90 days after the complaint is filed or the court must dismiss the action or order that service be made within a specified time. Id. at 4(m) (emphasis added). Failure to comply with Rule 4 results in insufficient service of process which prevents the federal court from exercising jurisdiction over the individual defendant.
Melendez filed this action on July 17, 2021. Dkt. #1 at 1. U.S. District Judge Robert Pitman issued a show cause order in November 2021, Dkt. #4, to which Melendez responded that she did not understand the court's procedures and indicated that she “immediately” would serve Arnold. Dkt. #6. She obtained a summons on December 7, 2021. Dkt. #12-3 at 2. However, she did not attempt to serve Arnold until March 2022 and did not effect service until August 15, 2022. Dkt. #12-4 at 2. The documents served upon Arnold in August 2022-more than a year after Melendez filed her Complaint-were a summons and an incomplete version of the Complaint. Id. at 2; compare Dkt. #12-3 at 2-7 with Dkt. #1 at 1-5.
Judge Pitman issued another show cause order in July 2022, Dkt. #9, to which Melendez said she was taking steps to serve Arnold. Dkt. #10.
Because Melendez's Response does not address Arnold's deficient and incomplete process arguments; because the undersigned concludes that Melendez has neglected to prosecute this action; and because her prior responses to Judge Pitman's show cause orders (Dkts. #6 & #10) do not provide good cause or demonstrate excusable neglect for the deficient and incomplete process, the court is prevented from exercising jurisdiction over Arnold. See Murphy Bros., 526 U.S. at 350. Accordingly, the Melendez's Complaint should be dismissed.
B. Individual Liability
Melendez is suing Arnold alone. Dkt. #1 at 1. Arnold argues that the Fifth Circuit has held that “[i]ndividuals are not liable under Title VII in either their individual or official capacities,” and that Melendez's Complaint should be dismissed under Rule 12(b)(6). Dkt. #12 at 12 (quoting, inter alia, Ackel v. Nat'l Comms., Inc., 339 F.3d 376, 382 (5th Cir. 2003)). Melendez did not respond to Arnold's Rule 12(b)(6) arguments (nor do any of Melendez's allegations of harassment, discrimination, and retaliation refer to Arnold). See, e.g., Dkt. #1 & Dkt. #13.
“To survive a 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.'” Iqbal, 556 U.S. at 678 (quoting 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.” Id. The Fifth Circuit “has repeatedly rejected any individual liability under Title VII.” Baldwin v. Layton, 300 Fed.Appx. 321, 323 (5th Cir. 2008) (collecting cases).
Melendez is proceeding Pro se, and the undersigned has construed her Complaint liberally. See Haines 404 U.S. at 520-21. But because Melendez's Complaint names only Arnold as a defendant and because the Fifth Circuit has clearly-and repeatedly-foreclosed individual liability in Title VII actions, Melendez's Complaint should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
IV. Conclusion
Melendez has neglected to prosecute this action as evidenced by her noncompliance with the Federal Rules of Civil Procedure and her lack of promptness in complying with the District Court's orders to properly serve Arnold. Her status as a Pro se litigant does not absolve her from following the rules and court orders. Because the court may not exercise jurisdiction over an improperly served defendant, dismissal is appropriate.
Furthermore, Fifth Circuit precedent dictates that her Complaint does not state a claim upon which relief can be granted because she is suing an individual. Thus, if the District Court determines that dismissal under Rules 12(b)(4) and (5) is not appropriate, Melendez's Complaint should nonetheless be dismissed pursuant to Rule 12(b)(6).
Even if precedent did not require dismissal, her Complaint only makes passing reference to Arnold. See, e.g., Dkt. #1-1.
V. Recommendations
For the reasons given above, the undersigned RECOMMENDS that Arnold's Motion to Dismiss (Dkt. #12) be GRANTED and the complaint be DISMISSED.
The undersigned FURTHER RECOMMENDS that Melendez's Motion to Proceed with Civil Action (Dkt. #13) be DENIED.
VI. Objections
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).