United States District Court, D. South Carolina
Booth, Plaintiff, represented by Chalmers Carey Johnson.
Trident Literacy Association Inc, Defendant, represented by
Nosizi Ralephata, Turner Padget Graham and Laney.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, Magistrate Judge.
action has been filed by the Plaintiff asserting claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. Â§ 2000e,
et seg. Plaintiff is a former employee of the Defendant.
Defendant filed a Rule 12 motion to dismiss, with
accompanying exhibits, on March 16, 2016. Plaintiff filed a
memorandum in opposition to the Defendant's motion on
March 31, 2016, to which the Defendant filed a reply
memoranda on April 11, 2016. Defendant's motion is now
before the Court for disposition.
alleges in his Complaint that he was employed by the
Defendant from July 21, 2014 to approximately July 30, 2014.
Complaint, Â¶ 1.3. Plaintiff alleges that on or about July 30,
2014, he was terminated by the Defendant on the basis of his
religion (Christian) in violation of Title VII. Id.,
Â¶Â¶ 2.8, 3.1-3.4. Plaintiff further alleges that, prior to
filing his Complaint, he received a Right to Sue notice from
the EEOC on September 8, 2015, and that this action was
thereafter filed within ninety (90) days. Id., Â¶
1.4. A review of the docket confirms that
this action was filed on December 3, 2015, which was
eighty-six (86) days after Plaintiff's receipt of the
Right to Sue notice from the EEOC.
4(m), Fed.R.Civ.P. provides that "[i]f 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... but if the Plaintiff shows good cause for the
failure, the court must extend the time for service for an
appropriate period." Here, the parties do not dispute
that the time for service began to run on December 3, 2015;
therefore, the ninety (90) day period for service provided by
Rule expired on March 2, 2016. However, the Defendant asserts
in its motion, and Plaintiff does not dispute, that the
Defendant was not served with process in this case by March
2, 2016,  and that in fact, as of the filing of
the Defendant's motion to dismiss on March 16, 2016, the
Defendant had still never been served with process in this
parties have submitted exhibits relating to this issue with
their briefs, which the Court has considered in reaching a
decision with respect to whether Plaintiff has shown good
cause for his failure to timely serve the Defendant such that
the time for service should be extended for an appropriate
period. See Rule 4(m). These exhibits reflect
that on or about December 16, 2015, Plaintiff's counsel
requested waiver of service from the attorney who had
represented the Defendant in the proceedings before the EEOC,
See Defendant's Exhibit C (Court Docket No. 5-3, p. 2);
Plaintiff's Exhibit (Court Docket No. 6-1, p. 2).
Defendant's EEOC counsel had previously indicated he
could waive service of the summons and Complaint if
Plaintiff's counsel sent him the requisite forms. See
Defendant's Exhibit C (Email dated 12/9/15);
Plaintiff's Exhibit (Court Docket No. 6-1, p. 1).
However, Defendant's EEOC counsel responded to
Plaintiff's counsel sending him the necessary waiver
documents by telling Plaintiff's counsel that the defense
of this case had been transferred to John Wilkerson of the
Turner Padget law firm in Charleston, South Carolina. See
Defendant's Exhibit C (Court Docket No. 5-3, p. 1);
Plaintiff's Exhibit (Court Docket No. 6-1, pp. 2-3). EEOC
defense counsel further indicated in this email that he had
forwarded the waiver of service material he had received from
Plaintiff's counsel to Attorney Nosizi Ralephata with the
Turner Padget firm, and that Plaintiff's counsel should
direct all further correspondence, inquiries, missives,
communications, and calls to her. Both Wilkerson and
Ralephata were copied on that email. Id . Plaintiff
responded that same day (December 16, 2015) thanking EEOC
defense counsel for forwarding his email, and stating that
"I'll look for a response from Ms. Ralephata".
However, Plaintiff's counsel did not copy either
Wilkerson or Ralephata on that email See Defendant's
Exhibit C (Court Docket No. 5-4, p. 2); Plaintiff's
Exhibit (Court Docket No. 6-1, p. 4).
counsel does not dispute that, thereafter, he did not himself
ever send waiver of service documents to Turner Padget, nor
did he ever call or engage in any other communications with
that law firm. Plaintiff's counsel also acknowledges in
his brief that neither EEOC defense counsel nor anyone at
Turner Padget ever signed and returned the waiver. On March
4, 2016 (which was now after the service deadline).
Plaintiff's counsel emailed EEOC defense counsel that he
had never gotten a response from Turner Padget, that he was
about to go ahead and serve the Defendant, and "just
wanted to check with you before I incur costs that would be
taxed against your client". See Defendant's Exhibit
D (Court Docket No. 5-4, p. 2); Plaintiff's Exhibit
(Court Docket No. 6-4, p. 4). It is not clear why
Plaintiff's counsel chose to contact the attorney who he
knew was not representing the Defendant in this case, rather
than Turner Padget. Further, no counsel from Turner Padget is
showed as being copied on this email.
EEOC counsel responded to Plaintiff's counsel that same
day, stating: "I suggest you contact Nosizi Ralephata
one more time before serving, as I recall she was prepare[d]
to save you all costs as to that. I have cc'ed her
hereon. If you cannot get ahold of her, please let me
know". Both Ralephata and Wilkerson are shown as being
copied on this email. See Defendant's Exhibit D (Docket
No. 5-4, p. 1); Plaintiff's Exhibit (Docket No. 6-1, p.
4). However, Plaintiff's counsel has provided no
documentation to show, nor does he even argue, that he
thereafter ever contacted defense counsel at Turner Padget
regarding either serving the Defendant or obtaining a waiver
of service. Cf. Mende v. Milestone Tech, Inc., 269
F.Supp.2d 246, 251 (S.D.N.Y. 2003) ["When a defendant
raises a Rule 12(b)(5) challenge to the sufficiency of
service of process, the Plaintiff bears the burden of proving
its adequacy".] (internal citations omitted).
Plaintiff's counsel further concedes in his filings that,
as of the filing of his brief on March 31, 2016, he had still
never served the Defendant with process in this case.
response to the Defendant's motion to dismiss,
Plaintiff's counsel argues that, since the time for
service has expired and this case has never been served on
the Defendant, that "technically, the case has not been
commenced", and that it "is Plaintiff's right
and place to decide when and if to commence this case at this
point". Plaintiff's Brief, p. 1. Plaintiff's
counsel then faults the Defendant for even filing this
motion, arguing that the "fact that the Defendant's
attorneys have opted to enter into the Court and raise these
issues by filing this unnecessary motion to dismiss seems
frivolous and a waste of its client's resources, the
Court's time, and the undersigned's".
Id . Plaintiff's counsel's argument appears
to be based on his belief that, since the case has never been
served, it is no longer a pending case and therefore the
Defendant's motion was unnecessary. However, this
argument is without merit. This is still a pending case on
the docket of this Court, and since Plaintiff has not himself
filed a voluntary dismissal of the case pursuant to Rule
41(a), Fed.R.Civ.P., the Defendant's motion for dismissal
under Rule 4(m) is entirely proper.
whether Plaintiff has shown good cause for his failure to
timely serve the Defendant such that the time for service
should be extended for an appropriate time (as allowed under
Rule 4(m)), the undersigned does not find that such an
extension is warranted under the facts of this case.
Plaintiff asks the Court to "consider equitable tolling
at this point" and allow service of process at this time
because he "relied on [EEOC counsel's] word that the
waiver would be granted and service accepted....".
Plaintiff's Brief, p. 2. However, that is not what the
documents submitted reflect, nor does EEOC counsel's
statement of December 9, 2015 that, if Plaintiff's
counsel would like to send him the waiver forms he would
"review [them] and get back to" Plaintiff's
counsel, excuse Plaintiff's counsel's own actions in
failing to serve the Defendant, not only within 90 days of
the filing of this case, but ever. The documents provided to
the Court clearly show that after Plaintiff's counsel
forwarded the waiver documents, the Defendant's EEOC
counsel advised Plaintiff's counsel that he was
not going to be representing the Defendant in this
case, told Plaintiff's counsel who was
representing the Defendant, that he had forwarded the waiver
documents to the Defendant's new counsel, and told
Plaintiff's counsel to contact them about
obtaining a waiver of service. However, Plaintiff's
counsel never thereafter contacted the Defendant's case
counsel, even though he clearly knew who was representing the
Defendant in this case, and when he did finally send another
email relating to service in this case (which was by that
time after the time for service had expired), he did
not send that email to the Defendant's attorney, but to
the Defendant's prior EEOC counsel who he
clearly knew was not representing the Defendant in this case.
He did not even copy the Defendant's case counsel on that
email, nor did he then ever follow up with the
Defendant's case counsel about this issue, even though
the Defendant's prior EEOC counsel expressly advised him
to do so.
is no justification for granting Plaintiff the benefit of
equitable tolling based on these facts. See Eaton v. Digital
Equipment Corp., 16 Fed.Appx. 95, 96 (4th Cir. 2001)
[Equitable tolling appropriate only "where the defendant
has wrongfully deceived or misled the plaintiff [or] applies
where the defendant engages in intentional misconduct to
cause the plaintiff to miss a filing deadline"];
Irwin v. Department of Veteran's Affairs, 498
U.S. 89, 96 (1990) [Equitable tolling not appropriate where
"the claimant failed to exercise due diligence in
preserving his legal ...