United States District Court, D. Delaware
JACKIE F. YATES, Plaintiff,
DELAWARE PSYCHIATRIC CENTER, Defendant.
F. Yates, Dover, Delaware, Pro Se Plaintiff.
Kenisha L. Ringgold, Deputy Attorney General Deputy, Delaware
Department of Justice, Wilmington, Delaware. Counsel for
Delaware Health and Human Services.
U.S. District Judge.
Jackie F. Yates ("Plaintiff) filed this action pursuant
to 42 U.S.C. § 2000e-5, alleging employment
discrimination. (D.I. 2) She proceeds pro se and was
granted leave to proceed in forma pauperis. The
Court has jurisdiction pursuant to 28 U.S.C. § 1331.
Presently before the Court is Defendant's motion to
dismiss and Plaintiffs opposition thereto. (D.I. 15, 17)
complaint alleges discriminatory acts of workplace
harassment, suspension, and retaliation based upon national
origin, occurring on September 17, 2012. (See D.I.
2) Plaintiff received a final determination and right to sue
notice on June 6, 2013. (Id.) She commenced this
action on July 1, 2013. Delaware Psychiatric Center
("DPC") is the named defendant. The Court takes
notice that the right to sue notice is captioned Jackie Yates
vs. State of DE/DHSS/DSAMH/DPC. (Id. at Ex.)
Plaintiff seeks compensatory damages and requests
MOTION TO DISMISS
motion to dismiss states that the DPC is not a legal entity
subject to suit. The motion to dismiss is filed to the extent
that the complaint can be construed as against Delaware
Health and Human Sendees ("DHSS"). (D.I. 15)
Plaintiff proceeds pro se and, therefore, the Court
liberally construes the complaint as against DHSS, given that
the DPC is operated by die DHSS. See Stoppelv. Hemy,
2011 WL 55911, at *1 (Del. Super. Cr. Jan. 4, 2011). In
addition, the defendant named in the charge of discrimination
is the combined entity of the State of DE/DHSS/DSAMH/DPC. The
Clerk of Court will be directed to reflect on the Court
docket that the named Defendant is Delaware Psychiatric
Center/Delaware Health and Social Services. Defendant moves
for dismissal pursuant to Fed.R.Civ.P. 12(b)(3), (4), (5),
and (6) and Fed.R.Civ.P. 4(j) and (m), on the grounds that:
(1) it was not properly served; (2) it was not timely served;
(3) the claim is time-barred; and (4) the complaint fails to
comply with Fed.R.Civ.P. 8.
Legal Standards 1. Rule 12(b)(3)
Rule of Civil Procedure 12(b)(3) allows a defendant to move
to dismiss for improper venue. When venue is improper, a
district court must dismiss the action or, if in the interest
of justice, transfer the action to a district in which it
could have been brought. 28 U.S.C. § 1406(a). The party
moving for dismissal based on improper venue "has the
burden of proving the affirmative defense." Myers v.
American Dental Ass'n, 695 F.2d 716, 724 (3d Cir.
1982). When considering a motion to dismiss for improper
venue, the court must generally accept as true the
allegations in the pleadings and must view the facts in the
light most favorable to the nonmoving party. See Heft v.
AAI Corp., 355 F.Supp.2d 757, 762 (M.D. Pa. 2005)
(citing Pinker v. Roche Holdings, Ltd., 292 F.3d
361, 368 (3d Cir. 2002)).
Rule 12(b)(4) and Rule 12(b)(5)
defendant may file a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(5) when a plaintiff fails to properly
serve him or her with the summons and complaint. A plaintiff
"is responsible for having the summons and complaint
served within the time allowed by Rule 4(m)."
Fed.R.Civ.P. 4(c)(1). At the time the complaint here was
filed, Rule 4(m) imposed a 120-day time limit for perfection
of service following the filing of a complaint. If service is not
completed within that time, the action is subject to
dismissal without prejudice. See id.; see also MCI
Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086,
1098 (3d Cir. 1995).