UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PLAINTIFFS’ RESPONSE TO DEFENDANT’S
MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND BRIEF IN SUPPORT
Plaintiff, proceeding pro se, respectfully request that the Court deny Defendant’s Motion to Dismiss her Complaint, brought pursuant to Federal Rule of Civil Procedure 12(b)(5) and 12(b)(6).
TABLE OF AUTHORITIES
CASES
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)
BrockMeyer v. May, 383 F.3d, 798, 801 (9th Circ. 2004).
Coleman v. Md. Ct. of App., 626 F.3d 187, 190 (4th Cir. 2010)
Haines v. Kerner, 404 U.S. 519 (1972).
Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982).
McRae v. White, 269 App. 455, 604 S.E.2d 291 (2004).
re Am. Airlines, Inc., Privacy Litig., 370 F.Supp.2d 552, 567-68 (N.D. Tex. 2005) (Fitzwater, J.)
Saxton v. Davis, 262 App. 72, 584 S.E.2d 683 (2003).
Stevens v. Sec. Pac. National Bank, 538 F.2d 1378, 1389 (9th Circ., 1976).
Tenet Healthcare v. Gilbert, 277 App. 895, 627 S.E. 2d 821, 829 (2006).
FEDERAL RULES OF CIVIL PROCEDURE
FED. R. CIV. P. 12(b)(5)
FED. R. CIV. P. 12(b)(6)
FED. R. CIV. P. 12(b)(8)
BOOKS
Ira P. Robbins and Susan N. Herman, Pro Se Litigation – Litigating Without Counsel: Faretta or For Worse, 42 Brooklyn L.Rev. 629, 632 (1976).
Laurence H. Tribe, American Constitutional Law § 10-18 at 756 (2d ed. 1988).
STANDARD OF REVIEW
Defendant presents arguments under Federal Rules of Civil Procedure 12(b)(5) (insufficient service of process), and 12(b)(6) (failure to state a claim upon which relief can be granted).
Once a defendant challenges the sufficiency of service of process on them, the plaintiff bears the burden of establishing the validity of the service as governed by Rule 4. BrockMeyer v. May, 383 F.3d, 798, 801 (9th Circ. 2004).
Dismissal under Rule 12(b)(6) is proper only when the complaint lacks a cognizable legal theory or does not allege facts that, when taken as a whole, raise the claim for relief above mere speculation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Coleman v. Md. Ct. of App., 626 F.3d 187, 190 (4th Cir. 2010). When a 12(b)(6) motion is used to test the sufficiency of the complaint in a civil rights case, the court will be “especially solicitous of the harms alleged.” Id.
Where a complaint falls short of the general pleading standard in Rule 8, “in view of the consequences of dismissal of the complaint alone, and the pull to decide cases on the merits rather than on the sufficiency of pleading, district courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case. In re Am. Airlines, Inc., Privacy Litig., 370 F.Supp.2d 552, 567-68 (N.D. Tex. 2005) (Fitzwater, J.).
II.
STATEMENT OF THE CASE
On March 27, 2020, the Plaintiff, pro se, brought a suit against the Defendant for wrongful termination, seeks compensation for the said action in the amount of $750,000. The Plaintiff duly filled the pro se complaint form and referred to an attached file outlining the Plaintiff’s allegations. A couple of days after the said filing, the Plaintiff received notification from the Clerk of the Court as to summons for the relevant parties. At that time, the Plaintiff, being pro se, reasonably experienced challenges with the summons. The Court took note of the challenges. Further, when the Plaintiff acted responsibly, and engaged the services of a process server, the defendant refused personal delivery of the summons and instead requested service by certified mail. Consequentially, the Plaintiff continued experiencing challenges with the process.
III.
ARGUMENT
- The Complaint Does Not Violate Fed. R. Civ. P. 12(b)(5).
The Plaintiff understands that service of process is “the very bedrock of due process.” McRae v. White, 269 App. 455, 604 S.E.2d 291 (2004). The Plaintiff further understands that she (the Plaintiff) has the burden to prove that the service of process was valid. BrockMeyer v. May, 383 F.3d, 798, 801 (9th Circ. 2004).
In such circumstances as these, the courts require that the plaintiff shows that she used “the greatest possible due diligence” in ensuring the defendant was timely served with process once he has been made aware of a problem with service”. Saxton v. Davis, 262 App. 72, 584 S.E.2d 683 (2003); Tenet Healthcare v. Gilbert, 277 App. 895, 627 S.E. 2d 821, 829 (2006).
In that regard, the Plaintiff maintains that she made all reasonable effort to ensure process was served to the defendant. First, after being notified of her errors in effecting service contrary to Rule 4, she engaged the services of a process server. Twice, the process server attempted to serve process on the defendant (On July 9 and 15, 2020), but the service was not successful. Consequently, the Plaintiff further attempted the service via mail.
According to the Ninth Circuit Court of Appeals, the courts have a discretion to either dismiss or retain an action if the plaintiff fails to sufficiently demonstrate effective service. Stevens v. Sec. Pac. National Bank, 538 F.2d 1378, 1389 (9th Circ., 1976). In that vein, the Plaintiff avers that it has reasonably given its reasons and challenges why service was full of flaw. Dismissing the Plaintiff’s complaint would therefore amount to a denial of the Plaintiff’s access to justice and right to be heard.
- The Complaint Does Not Violate Fed. R. Civ. P. 12(b)(6).
According to the Supreme Court’s decision in Haines v. Kerner, 404 U.S. 519 (1972), that pro se pleadings should be viewed with special care. The justification for this holding is that a litigant with counsel may allege crucial facts a pro se litigant would not think to include in his pleadings. Moreover, pleadings drafted by counsel not only may be phrased more artfully, but also may allege viable causes of action which might not occur to the pro se litigant, or for that matter, to the court.
It follows; leniency is required to preserve the pro se litigant’s meaningful opportunity to be heard. Ira P. Robbins and Susan N. Herman, Pro Se Litigation – Litigating Without Counsel: Faretta or For Worse, 42 Brooklyn L.Rev. 629, 632 (1976), at 641.
The effects of holding a pro se civil litigant to strict compliance with procedural rules are manifold. It will deter those with meritorious claims from accessing justice. The result of such a direction, is to place in jeopardy the one due process right that pro se litigants clearly have: the right to a meaningful opportunity to be heard. Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982).
Ordinarily, a denial of due process does not occur if a state restricts the right of access to the courts by means of reasonable procedural requirements. Laurence H. Tribe, American Constitutional Law § 10-18 at 756 (2d ed. 1988). A litigant is denied due process, however, if these requirements work to deny him a meaningful opportunity to be
heard.
A pro se litigant is entitled to a liberal construction of his/her pleadings. Haines v. Kerner, 404 U.S. 519 (1972). A refusal to construe pleadings flexibly, as required under Haines, is tantamount to withdrawal of that meaningful opportunity. For instance, an otherwise meritorious claim could be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim, as is the Plaintiff’s situation in the instant case. The very point of the decision in Haines is to determine if when a pro se civil plaintiff has not said the “magic words” (or has said the wrong words), a cause of action exists. It follows; the protection of federal court litigants’ interest in a meaningful opportunity to be heard while litigating is a central aspect of procedural due process.
Therefore, the Plaintiff’s complaint should not be dismissed because of how the complaint was drafted. Doing so would violate the due process rights of the Plaintiff.
CONCLUSION AND PRAYER
The Plaintiff asks the Court to deny the defendant’s Motion in its entirety. In the alternative, the Plaintiff asks the Court for leave to amend the Live Complaint.
In either case, the Plaintiff also asks the Court for any other relief to which she
may be entitled.
Respectfully submitted,
______________________
Plaintiff
BEATRICE CULLEY
936 Worthington Drive,
DeSoto, Texas, 75115.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served via [ENTER METHOD YOU SENT THIS DOCUMENT TO THE DEFENDANT] on [ENTER THE DATE YOU SERVED THIS DOCUMENT], to:
LISA R. HASDAY
Assistant United States Attorney
Texas Bar No: 24075989
1100 Commerce Street, Third Floor
Dallas, Texas 75242-1699
Telephone: 214-659-8737
Facsimile: 214-659-8807
Lisa.hasday@usdoj.gov
Attorney for Defendant
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