United States District Court, D. South Carolina, Charleston Division
Booth, Plaintiff, represented by Chalmers Carey Johnson.
Trident Literacy Association Inc, Defendant, represented by
Nosizi Ralephata, Turner Padget Graham and Laney.
RICHARD MARK GERGEL, District Judge.
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending that the Court grant
Defendant's motion to dismiss for failure to serve within
the period provided by Rule 4(m) of the Federal Rules of
Civil Procedure. The Court declines to adopt the Report and
Recommendation, denies Defendant's motion, deems service
waived, and directs Defendant to answer the complaint within
fourteen days of the date of this Order.
Report and Recommendation of the Magistrate Judge
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court is charged with making a de novo
determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). This Court
may also "receive further evidence or recommit the
matter to the magistrate judge with instructions."
Id. Where the plaintiff fails to file any specific
objections, "a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation, " see Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (internal quotation omitted), and this Court is not
required to give any explanation for adopting the
recommendation of the Magistrate Judge, Camby v.
Davis, 718 F.2d 198 (4th Cir. 1983).
Motion to Dismiss
Rule 12(b)(5) of the Federal Rules of Civil Procedure, a
defendant can move to dismiss a complaint where service of
process failed to comply with the requirements of Rule 4 of
the Federal Rules of Civil Procedure. Rule 4(m) requires
service of process within ninety days after the complaint is
filed. If service does not occur within that period, the
court must dismiss the action unless the plaintiff shows good
cause for the failure, in which case he court must extend the
time for service. Fed.R.Civ.P. 4(m).
12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of an action if the complaint fails "to state
a claim upon which relief can be granted." Such a motion
tests the legal sufficiency of the complaint and "does
not resolve contests surrounding the facts, the merits of the
claim, or the applicability of defenses.... Our inquiry then
is limited to whether the allegations constitute a short and
plain statement of the claim showing that the pleader is
entitled to relief.'" Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation
marks and citation omitted). In a Rule 12(b)(6) motion, the
Court is obligated to "assume the truth of all facts
alleged in the complaint and the existence of any fact that
can be proved, consistent with the complaint's
allegations." E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
However, while the Court must accept the facts in a light
most favorable to the non-moving party, it "need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id.
survive a motion to dismiss, the complaint must state
"enough facts to state a claim to reliefthat is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although the
requirement of plausibility does not impose a probability
requirement at this stage, the complaint must show more than
a "sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A complaint has "facial plausibility"
where the pleading "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.
alleges that Defendant employed him from July 21, 2014 to
approximately July 30, 2014, when he was terminated because
of his religion in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq. (Compl. ¶¶
1.3, 2.8, 3.1-3.4.) Plaintiff further alleges that, before
filing his complaint, he received a Right to Sue notice from
the Equal Employment Opportunity Commission on September 8,
2015, and that this action, filed on December 3, 2015, was
filed within ninety days of that notice. ( Id. ¶
1.4.). Amendments to the Federal Rules of Civil Procedure
reducing the time for service from 120 days to 90 days took
effect on December 1, 2015. Because this action was filed on
December 3, 2015, Plaintiff had ninety days- i.e.,
until March 2, 2016-to serve the summons and complaint on
December 3, 2015, Christian Steinmetz of Gannam Gnann &
Steinmetz (in Savannah, Georgia), then defense counsel in
this matter, contacted Plaintiff's counsel and offered to
waive service of process. (Emails Between Counsel. Dkt. No.
6-1.) On December 10, 2015, Plaintiff's counsel agreed to
send waiver of service documents to counsel as soon as
possible. (Id.) Those documents were sent on
December 16, 2015 by mail, with courtesy copy byemail.
(Id.) That same day, Mr. Steinmetz replied via email
that the firm of Turner Padget in Charleston, South Carolina
had replaced Gannam Gnann & Steinmetz as defense counsel in
this matter and that "all further correspondence"
should be directed to that firm. (Id.) Several
attorneys at the firm of Turner Padget were copied on that
reply, which included copies of Plaintiff's request for
service waiver documents with the comment "note that I
am forwarding that which you sent me to them via ...