B.T. v. Silver Diner Dev.
| Docket Number | Civil 2:22cv94 |
| Decision Date | 16 August 2022 |
| Parties | B.T., Plaintiff, v. SILVER DINER DEVELOPMENT, LLC, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
This matter is before the Court on a motion to dismiss filed by Defendant James H. Haliburton ("Haliburton"), ECF No. 43, and a motion to dismiss filed by Defendant Silver Diner Development, LLC ("Silver Diner"), ECF No 13. Also before the Court is Silver Diner's motion to strike portions of Plaintiff B.T.'s ("Plaintiff") complaint. ECF No. 19. For the reasons stated below, the Court DENIES Haliburton's motion to dismiss, GRANTS in part and DENIES in part Silver Diner's motion to dismiss, and DENIES Silver Diner's motion to strike.[1]
I. BACKGROUND[2]
Silver Diner is an American restaurant chain with restaurants spanning the mid-Atlantic region. See ECF No. 1-2 ¶ 9. In 2003 Plaintiff worked at Silver Diner"s Virginia Beach location as part of a course offered to juniors and seniors at her high school. Id. ¶ 26. Plaintiff, a minor at the time, alleges that when she worked for Silver Diner, she was "solicit[ed]" and "groom[ed]" for sexual acts by Haliburton, a fellow employee ten years her senior. Id. ¶¶ 29 34-35 Plaintiff claims that Haliburton accosted, kissed, and groped her during work hours. Id. ¶ 31. She also alleges that Haliburton raped her on multiple occasions-both during and after work. Id. ¶¶ 29, 38. Plaintiff contends that other Silver Diner employees, including two of the restaurant's managers, were aware of Haliburton's misconduct, but did nothing to stop it. Id. ¶¶ 33-34, 37 40-41. Rather, Plaintiff alleges, Silver Diner maintained a "sexually hostile and dangerous work environment" for underage female co-workers. Id. ¶ 14. Plaintiff outlines several instances of sexual assault committed by other male employees that occurred before she started working for Silver Diner and notes that Haliburton was among the adult male employees known for sexually harassing underage female co-workers. Id. ¶¶ 15-22.
In January 2020, Plaintiff met with a mental health professional. During her treatment, she was informed "for the first time that she suffered from injuries causally connected to the sexual assaults, sexual abuse, and rapes committed by Haliburton." Id. ¶ 42. Two years later, Plaintiff filed a complaint in Virginia state court against Haliburton, Silver Diner, and two other Silver Diner corporate entities (who were later dismissed from the suit). Against Haliburton, the complaint asserts one count: assault and battery. Id. ¶¶ 43-50. Against Silver Diner, the complaint asserts four counts: assault and battery, negligent supervision, negligent breach of a special relationship, and negligent retention. Id. ¶¶ 43-69.
In March 2022, Silver Diner removed the case to this Court. ECF No. 1. Shortly thereafter, Silver Diner filed a motion to dismiss, contending that Plaintiff's claims are time barred and that, even if they were not, the complaint fails to state a claim for relief. ECF No. 13. Silver Diner also moved to strike portions of Plaintiff's complaint related to behavior that allegedly occurred before Plaintiff worked at Silver Diner. ECF No. 19. Two months later, Haliburton filed a motion to dismiss, asserting that Plaintiff failed to provide sufficient process and that Plaintiff's assault and battery claim is time barred. ECF No. 43.
II. LEGAL STANDARD
Rule 12(b)(4) permits dismissal of a complaint based on technical defects in process. See Wright v. Tyson Foods, Inc., No. 5:18cv27, 2018 WL 3232776, at *1 (E.D. N.C. June 30, 2018).
Process is defective if it does not include a copy of the complaint and a valid summons. Fed.R.Civ.P. 4(c)(1). To be valid, the summons must, among other things, contain the names of the court and the parties, be directed to the defendant, be signed by the clerk, and bear the court's seal. Fed.R.Civ.P. 4(a)(1). If a litigant fails to comply with these requirements, a court may dismiss the complaint, but only if "the defect is prejudicial to the defendant." Doyle v. YMCA of N.H., 560 F.Supp.3d 499, 502 (D.N.H. 2021) () (internal quotation marks omitted).
Under Rule 12(b)(6), a district court may dismiss a complaint if the complaint fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A complaint fails to state a claim if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp, v. Twombly, 550 U.S. 544, 570 (2007) .
Because a motion to dismiss tests the sufficiency of a complaint without resolving factual disputes, a district court "'must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the plaintiff.'" Kensington Volunteer Fire Dep't, Inc, v. Montgomery Cnty., 684 F.3d 462, 467 (4th Cir. 2012) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc♦, 637 F.3d 435, 440 (4th Cir. 2011)). Although the truth of the facts alleged is presumed, district courts are not bound by the "legal conclusions drawn from the facts" and "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) . To survive a motion to dismiss under Rule 12(b)(6), "a complaint must include 'more than an unadorned, the-defendant-unlawfully-harmed-me accusation.'" Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015) (quoting Iqbal, 556 U.S. at 678).
A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a) (2), so as to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests," Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) . Fair notice is provided by setting forth enough facts for the complaint to be "plausible on its face" and "raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555, 570.
Rule 12(f) permits district courts to strike "any redundant, immaterial, impertinent, or scandalous" matter from a pleading. Fed.R.Civ.P. 12(f). In deciding whether to grant a motion to strike, district courts have broad discretion. Godfredson v. JBC Legal Group, P.C., 387 F.Supp.2d 543, 547 (E.D. N.C. 2005). That said, motions to strike are disfavored because "striking a portion of a pleading is a drastic remedy." Waste Mgmt. Holdings, Inc, v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 (2d ed. 1990)) (internal quotation marks omitted). For that reason, the party moving to strike must generally show that the challenged matter has no logical relation to the suit and is prejudicial. Hardy v. Lewis Gale Med. Ctr., LLC, 377 F.Supp.3d 596, 605 (W.D. Va. 2019).
III. HALIBURTON'S MOTION TO DISMISS
Haliburton urges the Court to dismiss Plaintiff's assault and battery claim because Plaintiff served him with a summons from the original state court action only after Silver Diner removed the case to federal court. ECF No. 44, at 4. According to Haliburton, Plaintiff's failure to serve him with federal process after Silver Diner removed the case rendered Plaintiff's process defective, and thus dismissal is warranted. Id. Plaintiff, on the other hand, argues that she initiated service prior to Silver Diner's removal of the case, and therefore she was permitted to serve Haliburton with state court process. ECF No. 45, at 6.
Service of process in a case removed from state court is governed by 28 U.S.C. § 1448, which states as follows:
In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.
28 U.S.C. § 1448. Courts across the country are split as to whether a state summons issued before removal retains its effectiveness after removal, and the Fourth Circuit has yet to resolve the issue. The split centers on the last clause of § 1448: "such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court." Some courts have read this language to require federal process if a plaintiff does not properly serve a defendant before removal, reasoning that the state court process is null and void on the date the suit is removed to federal court. See, e.g., Beecher v. Wallace, 381 F.2d 372, 373 (9th Cir. 1967); Hamilton v. Schlumberger Tech. Corp. Pension Plan, No. 8:22cv733, 2022 WL 1540459, at *2-3 ; Bruley v. Lincoln Prop. Co., N.C., Inc., 140 F.R.D. 452, 454 (D. Colo. 1991). Other courts have rejected that reading, contending that such an interpretation would read out the language allowing state service to be "complete...
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