United States District Court, D. Massachusetts
MARJORIE Y. EVANS, Plaintiff,
STAPLES, INC. and JESSICA DAGG, Defendants.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
DISMISS (DOCKET NO. 19)
TIMOTHY S. HILLMAN DISTRICT JUDGE.
Y. Evans (“Plaintiff”) brought this action
against Staples Contract & Commercial LLC
(“Staples”) and Jessica Dagg (“Ms.
Dagg”) (collectively “Defendants”)
asserting that she was discriminated against on the basis of
her race in violation of Mass. Gen. Laws ch. 151B and Title
Defendants moved to dismiss all claims for insufficient
service of process and, alternatively, for failure to state a
claim upon which relief can be granted. (Docket No. 19). For
the reasons stated below, Defendants' motion is
granted in part and
denied in part.
factual background is taken from Plaintiff's Complaint,
the attached documents, and relevant public records.
Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 68
(1st Cir. 2014) (citations omitted).
April 13, 2015, Kforce Professional Staffing
(“Kforce”) placed Plaintiff in a temporary
assignment with Staples to assist Ms. Dagg's project team
with clean-up of procurement databases. According to
Plaintiff, this assignment was meant to end in August 2015.
Plaintiff was initially interviewed for the position over the
phone by Ms. Dagg. When she began her employment, and Ms.
Dagg learned Plaintiff's race, Plaintiff was placed at a
“countertop space” to work with the only other
person of color in the office even though there were several
cubicles available. She was assured this was only a temporary
arraignment, but it did not change. For the duration of her
employment, Plaintiff was largely ignored. Ms. Dagg did not
respond to her emails which contained inquiries about the
position and its responsibilities. In addition, Ms. Dagg did
not assign Plaintiff any work. On May 22, 2015, Ms. Dagg
terminated Plaintiff's contract, purportedly due to her
lack of technical skills. Plaintiff believes these reasons
were pretextual and that she was in fact treated differently
and fired because of her race.
brought her claim to the Massachusetts Commission Against
Discrimination (“MCAD”) which found lack of
probable cause. (Docket No. 1-1 at 65-67). Plaintiff
appealed, and the finding of lack of probable cause was
affirmed. Id. at 69. On March 16, 2018, the Equal
Employment Opportunity Commission adopted the findings of the
MCAD and issued a right-to-sue letter. Id. at 70.
Plaintiff alleges the MCAD either ignored or did not receive
information that she provided to support her claims.
12(b)(5) empowers courts to dismiss a complaint for
insufficient service of process. Fed.R.Civ.P. 12(b)(5). Rule
4(m) governs the timing of service. It provides in relevant
If a defendant is not served within 90 days after the
complaint is filed, the court- on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m).
defendant challenges the sufficiency of process under Rule
12(b)(5), the plaintiff has “the burden of proving
proper service.” Lopez v. Municipality of
Dorado, 979 F.2d 885, 887 (1st Cir. 1992). When it has
been established that service was not timely, the Court
“must determine whether the plaintiff has met its
burden of establishing ‘good cause' for the
untimely service.” United States v. Tobins,
483 F.Supp.2d 68, 77 (D. Mass. 2007) (citations omitted). The
“court must extend the time for service of process if
there is good cause shown for the delay.” Riverdale
Mills Corp. v. U.S. Dep't of Transp. Fed. Aviation
Admin., 225 F.R.D. 393, 395 (D. Mass. 2005). “The
mere fact that a plaintiff is pro se, however, is
not automatically enough to constitute good cause for
purposes of Rule 4(m).” Ayele v. Delta Airlines,
Inc., 2018 WL 6001021, at *3 (D. Mass. Nov. 15, 2018).
In addition, “if there is no good cause, the court has
the discretion to dismiss without prejudice or to extend the
time period.” Tobins, 483 F.Supp.2d at 77
(quoting In re Sheehan, 253 F.3d 507, 512 (9th Cir.
defendant may move to dismiss, based solely on the complaint,
for the plaintiff's “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To
survive a Rule 12(b)(6) motion to dismiss, a complaint must
allege “a plausible entitlement to relief.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127
S.Ct. 1955 (2007). Although detailed factual allegations are
not necessary to survive a motion to dismiss, the standard
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Id. at 555, 127 S.Ct. 1955.
“The relevant inquiry focuses on the reasonableness of