Opinion
No. 4:98cv249-T.
February 18, 1999.
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon defendants' Motion to Dismiss. Plaintiff failed to respond within the time provided either under the Plan in effect and delivered to counsel for plaintiff upon the filing of the complaint or under the Local Rules as revised January 1, 1999. After the undersigned had considered the dispositive motion and written a recommendation, a response was filed by plaintiff out of time without first receiving leave of the court to do so. Having carefully considered defendants' Motion to Dismiss and reviewed the pleadings, the court enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Background
In his complaint, plaintiff alleges discrimination under the Americans With Disabilities Act. He contends that he worked at Bailey Manor in Clinton, South Carolina, as the administrator of the retirement home and was terminated based on his scoliosis and a number of other medical problems he had due to childhood polio and an automobile accident 25 years ago.
At the time this suit was filed, plaintiff lived in Polk County, North Carolina. Defendants have at all times been residents of the State of South Carolina. There have been no allegations that defendants had any contacts with North Carolina, and defendants have submitted an affidavit which indicates that they had no contacts with this state. In moving to dismiss, defendants argue that this court lacks personal jurisdiction over them and that, in any event, this in not, as a matter of law, the proper forum in which to assert an ADA claim against a South Carolina employer, inasmuch as the alleged wrongful employment actions purportedly were taken in South Carolina.
II. Discussion
A. Dismissal for Failure to Respond
The undersigned hereby respectfully recommends that this action be dismissed in its entirety for plaintiff's failure to respond within the time provided. Defendants filed their Motion to Dismiss on January 6, 1999. Adding three days for service by mail, plaintiff's response was due to be filed no later than January 25, 1999.
After this recommendation was written initially, and without leave of court, plaintiff filed a response one week out of time. Rule 6(b), Federal Rules of Civil Procedure, provides, as follows:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion.
* * *
(2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
Fed.R.Civ.P. 6(b)(2). Due to the fact that plaintiff failed to move under Rule 6(b) or show the required excusable neglect, the undersigned is compelled to recommend summary dismissal of this action.
B. Dismissal for the Substantive Reasons Asserted by Defendants
Inasmuch as the Court of Appeals for the Fourth Circuit has encouraged courts to avoid dismissals based upon procedural lapses, United States v. Moradi, 673 F.2d 725, 728 (4th Cir. 1982), plaintiff's response has been considered. In his response, plaintiff agrees that this action was improperly filed in this district and requests transfer to the District of South Carolina in the alternative to dismissal. Based upon the pleadings now before this court, the undersigned recommends, in the alternative to summary dismissal, that this action be dismissed in its entirety for lack of personal jurisdiction over these defendants.
"[J]ustice demands that a blameless party not be disadvantaged by the errors or neglect of his attorney which cause a final, involuntary termination of proceedings." Id.
While plaintiff has named two defendants in his complaint, it appears that there is only defendant — Carolina Christian Ministries, Inc., which does business as Bailey Manor.
Defendants have moved for dismissal pursuant to Rule 12(b), Federal Rules of Civil Procedure, contending that this court lacks personal jurisdiction over defendants under Rule 12(b)(2) and that venue is appropriate under Rule 12(b)(3). Rule 12(b) authorizes dismissal based upon a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832 (1989); Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41 (1957). As the Court discussed in Nietzke:
This procedure [for dismissal], operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously unsupportable. On the contrary, if as a matter of law "it is clear that no relief can be granted under any set of facts . . . a claim must be dismissed, without regard to whether it is based on outlandish legal theory. . . . What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations."Id., at 1832 (citation omitted). For the limited purpose of making a recommendation as to disposition of defendants' motion, the undersigned has accepted as true the facts alleged by plaintiff in the complaint and viewed them in a light most favorable to plaintiff.
Under Rule 12(b)(2), Federal Rules of Civil Procedure, defendants have moved to dismiss the complaint and have contended that this court lacks personal jurisdiction over them for actions allegedly occurring in the State of South Carolina while plaintiff both resided and worked in that state. This court agrees.
At the constitutional level, whether or not to exercise jurisdiction over a defendant is a question of fairness. International Shoe Co. v. Washington, 326 U.S. 310, 317-20 (1945). Determining what is fair requires review of the quantity and quality of a defendant's contacts with the forum state. Perkins v. Benquet Mining Co., 342 U.S. 437, 445-46 (1952). Constitutional concerns only arise where jurisdiction is allowed pursuant to a state's long-arm statute. As the Court of Appeals for the Fourth Circuit held:
[W]hen evaluating the propriety of jurisdiction obtained pursuant to a long-arm statute, a two-step analysis is normally required. First, we must determine whether the statutory language applies to the defendant; second, if the statutory language applies, we must determine whether the statutory assertion of jurisdiction is consistent with the due process clause of the Constitution.English Smith v. Metzger, 901 F.2d 36, 38 (4th Cir. 1990) (citation omitted). The North Carolina Supreme Court has held that the state's jurisdictional statute applies to defendants who meet the minimal contacts requirement of International Shoe Co. v. Washington, supra. See Dillon v. Numismatic Funding Corp., 291 N.C. 674 (1977); see also Western Steer-Mom Pops v. FMT Invs., Inc., 578 F. Supp. 260, 264 (W.D.N.C. 1984). The two-pronged approach approved by the circuit in applying the Virginia statute, "collapses into the question of whether (the Defendants have) the minimum contacts with North Carolina." Fieldcrest Mills, Inc. v. Mohasco Corp., 442 F. Supp. 424, 426 (M.D.N.C. 1977). There are five factors used in determining whether the long-arm statute and minimum contacts have been satisfied:
(1) quantity of the contacts;
(2) nature and quality of the contacts;
(3) source and connection of the cause of action to the contacts;
(4) interest of the forum state; and
(5) convenience.
Western Steer-Mom Pops v. FMT Invs., Inc., supra, at 264; seeFieldcrest Mills, Inc. v. Mohasco Corp., supra, at 427; N.C. Gen. Stat. § 1-75.45(5) (North Carolina long-arm statute). The burden is on plaintiff to establish that the long-arm statute provides for jurisdiction over these defendants. Marion v. Long, 72 N.C. App. 585, cert. denied, 313 N.C. 604 (1985). Plaintiff has neither alleged nor shown any contacts between defendants and the State of North Carolina, and there the analysis must stop. The undersigned is compelled, therefore, to recommend that defendants' Motion to Dismiss be granted in accordance with Rule 12 (b)(2).
Defendants have also asserted Rule 12(b)(3) as a basis for their motion to dismiss and argued that venue is not proper as a matter of law. Without doubt, venue in ADA cases is governed by 42, United States Code, Section 20000e-5(f)(3), which provides that actions may be brought in districts where the discrimination allegedly occurred, where the employment records are kept, or in which the plaintiff would have worked. In all those scenarios, the appropriate forum would have been the District of South Carolina. There is no provision for venue to be laid in the district wherein the plaintiff relocates post-termination. For these reasons, the undersigned will also recommend dismissal in accordance with Rule 12(b)(3).
C. Transfer to South Carolina
Without doubt, the United States District Court for the District of South Carolina is the appropriate forum for resolution of this dispute. It is equally clear that plaintiff failed to comply with the deadlines established by this court for responses, failed to request an enlargement by showing excusable neglect under Rule 6(b), and failed to comply with Rule 7(b), Federal Rules of Civil Procedure, by setting out his request in a motion as opposed to a response. In all, the manner in which this case has been handled by counsel for plaintiff from the outset has resulted in additional expenditure of time by this court and, undoubtedly, in unnecessary costs to defendants.
Heeding the decision of the Court of Appeals for the Fourth Circuit inUnited States v. Moradi, supra, the mistakes of counsel in missing deadlines and not complying with rules of pleading should not be attributable to the client; therefore, the undersigned will recommend in the alternative to summary dismissal or dismissal for lack of jurisdiction that the district court consider transfer of this matter to the District of South Carolina, which would result in a savings to the plaintiff of the filing fee and costs of reissuance of process.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that
(1) defendants' Motion to Dismiss be ALLOWED without prejudice for plaintiff's failure to timely respond; or
(2) in the alternative, that this matter be DISMISSED without prejudice for lack of personal jurisdiction under Rule 12(b)(2) and/or for improper venue under Rule 12(b)(3); or
(3) in the alternative to dismissal, that this matter be transferred to the United States District Court for the District of South Carolina for disposition.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn; 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied 467 U.S. 1208 (1984).
This Memorandum and Recommendation is entered in response to defendants' Motion to Dismiss (#4).