United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
Margaret B. Seymour Senior United States District Judge.
Daniel Woodard (hereinafter “Plaintiff”) brought
the underlying action against numerous owners and operators
of convenience stores, Defendants Rania Alquzah; Ranis Mart
of Columbia d/b/a City Gas; Pagan Dhillion; C.K.
Acquisitions, LLC d/b/a El Cheapo; Lawton Diamond; Winnsboro
Petroleum d/b/a Pops Shell Station; Alhanik Murad; Alhanik,
LLC d/b/a Obama Convenience Store; Sukhwinperpal Singh; and
Cheapway d/b/a El Cheapo (hereinafter collectively
“Defendants”), alleging that he was denied the
use of restroom facilities located on Defendants'
premises because of his race as an African American.
Plaintiff asserts causes of action for intentional
discrimination in violation of 42 U.S.C. § 1981 (First
Cause of Action); and for a violation of 42 U.S.C. §
2000(a), which prohibits discrimination or segregation in
places of public accommodation (Second Cause of Action). This
matter is now before the court on Defendants' various
motions to dismiss, ECF Nos. 5, 27, 31, 32, and
Plaintiff's motion to amend/correct the complaint, ECF
RELEVANT FACTS AND PROCEDURAL HISTORY
7, 2017, Plaintiff, who is a disabled African American
citizen, filed the present lawsuit in Richland County Court
of Common Pleas, South Carolina. Case No. 2017-CP-03536.
Plaintiff alleges that during the month of November 2016,
Plaintiff was a customer at Defendants' convenience
stores on several occasions to purchase gas. Compl. ¶
16. During those visits, Plaintiff requested and was denied
the use of restroom facilities by Defendants or their
employees. Compl. ¶ 17. As a result, Plaintiff conducted
a private investigation that disclosed “Defendants
allowed white customers to use the restroom facilities when
requested on one or more occasions.” Compl. ¶ 18.
Plaintiff asserts that the denial was “intentional and
purposeful discrimination against the Plaintiff which
occurred solely because of Plaintiff's race as an African
American.” Compl. ¶ 24. Moreover, Plaintiff
asserts that he was denied equal access to public
accommodations. Compl. ¶ ¶ 27-28.
7, 2017, Defendants Lawton Diamond (hereinafter
“Diamond”) and Winnsboro Petroleum Company
(hereinafter “Winnsboro Petroleum”) removed this
action to this court pursuant to 28 U.S.C. § 1331 on the
basis of federal question jurisdiction. ECF No. 1.
Contemporaneously with the notice of removal, Defendants
Diamond and Winnsboro Petroleum filed a motion to dismiss for
lack of personal jurisdiction, insufficient process,
insufficient service of process, and failure to state a claim
upon which relief can be granted. ECF No. 5. In their motion,
Defendants Diamond and Winnsboro Petroleum assert that they
were improperly served with Plaintiff's summons and
complaint. Id. at 4. Defendant Diamond claims
service was attempted by leaving a copy of the summons and
complaint with a store employee who is not authorized to
accept service on his behalf. Id. Defendant Diamond
further claims he “does not even work at the store
where service was attempted.” Id. n. 5.
Defendant Winnsboro Petroleum asserts that Plaintiff
effectuated service upon a store manager named Deshonne Hall,
who is not an authorized registered agent to accept service
on behalf of Winnsboro Petroleum. Id. at 4.
Therefore, Defendants Diamond and Winnsboro Petroleum contend
that this court does not have personal jurisdiction over this
case. Id. at 5.
21, 2017, Plaintiff filed a response to Defendants'
Diamond and Winnsboro Petroleum motion to dismiss. ECF No. 9.
Plaintiff argues that these “Defendants have not
alleged any prejudice from the delay of service.”
Id. at 2. Plaintiff further argues that
“because the time to serve the Defendants has not
expired . . . the court should deny the Defendant's
motion to dismiss and allow any alleged defect to be cured
before the 90 to 120 days expiration.” Id. at
3. In reply, Defendants Diamond and Winnsboro Petroleum
allege an agreement was reached with Plaintiff's counsel.
ECF No. 11 at 1. According to the agreement, Plaintiff would
file an amended complaint dismissing Defendant Diamond and
Defendant Winnsboro would accept service of the amended
complaint without conceding that service was improper. ECF
No. 11 at 1. However, Defendants Diamond and Winnsboro
Petroleum allege this agreement was not confirmed by
Plaintiff's counsel until July 5, 2017, and thus, these
Defendants filed a motion to dismiss to address the issue.
Id. at 2. If Plaintiff serves an amended complaint
and complies with the agreement, Defendants Diamond and
Winnsboro Petroleum allege the present motion to dismiss will
be rendered moot. Id. at 3.
August 28, 2017, Defendants Alquzah, Ranis Mart, Murad,
Alhanik LLC, Singh, and Cheapway filed virtually identical
motions to dismiss for insufficient service of process
pursuant to Fed.R.Civ.P. 12(b)(5). ECF No. 27, 31, 32. These
Defendants assert that service was defective, as they were
improperly served with Plaintiff's summons and complaint.
ECF No. 27 at 1-2, ECF No. 31 at 2, ECF No. 32 at 2. They
indicate that Plaintiff did not effectuate service upon the
registered agent as listed in the South Carolina Secretary of
State records and instead left a copy of the summons and
complaint with an employee of the store not authorized to
accept service on their behalf. ECF No. 27 at 3, ECF No. 31
at 3, ECF No. 32 at 5-6.
September 11, 2017, Plaintiff filed a response in opposition
to Defendants Murad and Alhanik, LLC's motion to
dismiss. ECF No. 35. Plaintiff argues that these
Defendants failed to allege any prejudice from the delay of
service. Id. at 2. Plaintiff also contends that
Murad and Alhanik, LLC had actual notice of the lawsuit and
such notice can remedy any issues resulting from
Plaintiff's service of process. Id. at 2.
Plaintiff further claims that less than 90 days has
transpired since the filing of the lawsuit and therefore
Plaintiff can still correct any deficiencies. Id. at
3. Defendants Murad and Alhanik, LLC filed a response on
September 15, 2017, alleging that they “cannot assert
prejudice arising from improper service in this matter at
this point in time.” ECF No. 36 at 1. Defendants Murad
and Alhanik, LLC contend they “have conferenced with
Plaintiff's counsel on this matter, and believe that in
the interests of this case and judicial economy the motions
to dismiss in this matter should be withdrawn.”
Id. at 2. However, Defendants Murad and Alhanik
argue to date Plaintiff has not filed or serve an amended
complaint. Id. at 2.
October 14, 2017, Plaintiff filed a motion to amend/correct
the complaint and attached a proposed amended complaint. ECF
No. 39. Plaintiff states that an agreement between one or
more opposing counsels was reached, wherein Plaintiff agreed
to dismiss Defendants in their individual capacities and proceed
against Defendants only as “corporate entities or
individuals ‘doing business as' a specific named
business.” Id. at 1. Plaintiff also added a
new cause of action for disability discrimination pursuant to
42 U.S.C. §§ 12101, et seq. Id. at 2.
Plaintiff argues that this new cause of action stems from
“the same set of fact or circumstances as the two
causes of actions already alleged.” Id.
October 25, 2017, Defendants Diamond and Winnsboro Petroleum
filed a response in opposition to Plaintiff's motion to
amend/correct the complaint. ECF No. 40. Defendants Diamond
and Winnsboro Petroleum allege the following: “(1) the
proposed amended complaint incorrectly states that Defendant
Diamond owns Winnsboro Petroleum, despite the inaccuracy
which has been brought to the attention of the plaintiff
multiple times; (2) the proposed amended complaint does not
reflect the agreement reached among counsel as the plaintiff
adds a new cause of action; (3) the parties have engaged in
no discovery and, thus, no facts have come to light which
would justify the plaintiff asserting a new cause of action
sounding in disability discrimination pursuant to 42 U.S.C.
§ 12101.” Id. at 1-2. Defendants Diamond
and Winnsboro Petroleum allege “this new theory is
inconsistent with the claims in the Plaintiff's original
complaint.” Id. at 4. These Defendants oppose
Plaintiffs' proposed amended complaint and request that
the court deny the motion. Id.
October 30, 2017, Defendants Alquzah, Ranis Mart, Murad,
Alhanik LLC, Singh, and Cheapway filed responses in
opposition to Plaintiff's motion to amend. ECF Nos. 41, 42,
43. These Defendants oppose Plaintiff's proposed amended
complaint as it adds a new cause of action. Id. at
1. They contend “there is no evidence of any
discrimination based on disability” and argue that
“if a factual basis for disability discrimination had
existed at the time, Plaintiff would have or should have so
pled.” Id. at 2-3. These Defendants
respectfully request that the court deny Plaintiff's
amendment as “it is frivolous, futile, and/or in bad
Civ. P. 15(a)(1) allows for a pleading to be amended once as
a matter of course within twenty-one days after service of
the pleading, or, if the pleading requires a response, within
twenty-one days after service of a responsive pleading.
“In all other cases, a party may amend its pleading
only with the opposing party's written consent or the
court's leave. The court should freely give leave when
justice so requires.” Fed.R.Civ.P. 15(a)(2). “[A]
district court has discretion to deny a motion to amend a
complaint, so long as it does not outright refuse ‘to
grant the leave without any justifying reason.'”
Equal Rights Ctr. v. Niles Bolton Assoc., 602 F.3d
597, 603 (4th Cir. 2010). “This directive gives effect
to the federal policy in favor of resolving cases on their
merits instead of disposing of them on technicalities.”
Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc.,
576 F.3d 172, 193 (4th Cir. 2009).
district court may deny a motion to amend when the amendment
would be prejudicial to the opposing party, the moving party
has acted in bad faith, or the amendment would be futile.
SeeLaber v. Harvey, 438 F.3d 404, 427 (4th
Cir. 2006) (citing Johnson v. Oroweat Foods Co., 785
F.2d 503, 509 (4th Cir. 1986)). First, “whether an
amendment is prejudicial will often be determined by the
nature of the amendment and its timing.”
Laber, 438 F.3d at 427. “A common example of a
prejudicial amendment is one that “raises a new legal
theory that would require the gathering and analysis of facts
not already considered by the [defendant and] is offered
shortly before or during trial.” Id. Second,
“delay alone is an insufficient reason to deny the
plaintiff's motion to amend.” Id. ...