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Booth v. Trident Literacy Association, Inc.

United States District Court, D. South Carolina, Charleston Division

August 8, 2016

Ronald Booth, Plaintiff,
v.
Trident Literacy Association, Inc., Defendant.

          Ronald Booth, Plaintiff, represented by Chalmers Carey Johnson.

          Trident Literacy Association Inc, Defendant, represented by Nosizi Ralephata, Turner Padget Graham and Laney.

          ORDER

          RICHARD MARK GERGEL, District Judge.

         This 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.

         I. Legal Standard

         A. Report and Recommendation of the Magistrate Judge

         The 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).

         B. Motion to Dismiss

         Under 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).

         Rule 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.

         To 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.

         II. Discussion

         Plaintiff 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 Defendant.[1]

         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 ...


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