                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


    BRIAN WATSON,

               Plaintiff,
          v.
                                                        Civil Action No. 16-2033 (CKK)
    D.C. WATER & SEWER AUTHORITY, et al.,

               Defendants.


                                   MEMORANDUM OPINION
                                       (April 19, 2017)

         Plaintiff, proceeding pro se, alleges that Defendants refused to hire him for a position as a

water sewer worker in retaliation for his earlier participation in a class action lawsuit against

Defendant D.C. Water and Sewer Authority (“Authority”) in violation of Title VII of the Civil

Rights Act of 1964. Defendants have moved to dismiss the Complaint under Federal Rules of

Civil Procedure 12(b)(5) and 12(b)(6). Defendants argue that the Complaint must be dismissed

because Plaintiff has not properly served any Defendant and that, regardless, the individual

named-Defendants should be dismissed under Rule 12(b)(6) because they are not proper parties

to a lawsuit brought under Title VII. Upon consideration of the pleadings, 1 the relevant legal

authorities, and the record as a whole, the Court GRANTS-IN-PART and DENIES-IN-PART

WITHOUT PREJUDICE Defendants’ [5] Motion to Dismiss. The Court will dismiss certain




1
  The Court’s consideration has focused on the following documents:
    • Defs.’ Mot. to Dismiss Pl.’s Am. Compl. (“Defs.’ Mot.”), ECF No. 5;
    • Pl.’s Mot. in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 8; and
    • Defs.’ Reply to Pl.’s Opp’n to Mot. to Dismiss (“Defs.’ Reply”), ECF No. 9.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
                                                   1
individual Defendants from the case and grant Plaintiff an additional 30 days to properly serve

the remaining Defendants.

                                         I. BACKGROUND

        For the purposes of the motion before the Court, the Court accepts as true the well-

pleaded allegations in Plaintiff’s Complaint. The Court does “not accept as true, however, the

plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp.

v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). Further, because Plaintiff

proceeds in this matter pro se, the Court must consider not only the facts alleged in Plaintiff’s

Complaint, but also the facts alleged in Plaintiff’s Opposition to Defendant’s Motion to Dismiss.

See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (“a district court

errs in failing to consider a pro se litigant’s complaint ‘in light of’ all filings, including filings

responsive to a motion to dismiss”) (quoting Richardson v. United States, 193 F.3d 545, 548

(D.C. Cir. 1999)).

        Plaintiff alleges that in 2013 he participated in a class action lawsuit against the Authority

alleging that the Authority discriminated against African American employees. Am. Compl.,

ECF No. 3, at 1. Plaintiff claims that he had been constructively discharged because of his race.

Id. After his participation in that lawsuit, Plaintiff allegedly applied for the position of water

sewer worker, grade 6, with the Authority but was denied the position. Id. Plaintiff maintains

that the Authority’s failure to hire him for the position was an act of retaliation for his

participation in the 2013 class action. Id. at 1-2. Plaintiff names Defendant George Hawkins in

his Amended Complaint as the individual with ultimate responsibility for hiring and firing

employees at the Authority, and Defendants Raymond Haynesworth, Alan Martin and Frank

Baylor as Mr. Hawkins’ management team “responsible for this process.” Id. at 2-3.


                                                    2
                                      II. LEGAL STANDARDS

A. Federal Rule 12(b)(5)

        “In the absence of service of process (or waiver of service by the defendant), a court

ordinarily may not exercise power over a party the complaint names as defendant.” Murphy

Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). Pursuant to Federal Rule of

Civil Procedure 12(b)(5), “if the plaintiff does not properly effect service on a defendant, then

the defendant may move to dismiss the complaint” without prejudice. Hilska v. Jones, 217

F.R.D. 16, 20 (D.D.C. 2003). “The party on whose behalf service is made has the burden of

establishing its validity when challenged; to do so, he must demonstrate that the procedure

employed satisfied the requirements of the relevant portions of [Federal Rule of Civil Procedure

4] and any other applicable provision of law.” Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987)

(internal quotation omitted).

B. Federal Rule 12(b)(6)

        Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a

complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.

R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678.




                                                    3
                                        III. DISCUSSION

        Defendants first move to dismiss the Complaint for lack of adequate service. “Absent

proper service of process, a Court may not exercise personal jurisdiction over the defendants

named in the complaint.” Dominguez v. D.C., 536 F. Supp. 2d 18, 22 (D.D.C. 2008). Plaintiff

concedes that service has not been properly completed, but asks the Court to not dismiss his

Complaint because he is proceeding pro se and his error was harmless and can be corrected.

Pl.’s Opp’n at 4.

        The Court is mindful that “[p]ro se litigants are allowed more latitude than litigants

represented by counsel to correct defects in service of process and pleadings.” Moore v. Agency

for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993). Accordingly, the Court finds that dismissal of

this pro se Complaint for failure to adhere to procedural requirements for service would not be

appropriate at this time. That being said, “[t]he accommodation a court should provide a pro se

litigant is not without limits.” Cruz-Packer v. D.C., 539 F. Supp. 2d 181, 188 (D.D.C. 2008).

The Court will not simply ignore the requirement that service be effectuated and move forward

with this case. Instead, the Court will give Plaintiff another opportunity to properly serve the

Defendants, and file proof of such service, by May 19, 2017—30 days from the date of this

Order. Plaintiff must properly serve Defendants by this date, or risk dismissal of this case. The

Court will DENY Defendants’ Motion to Dismiss for lack of effective service at this time

WITHOUT PREJUDICE to it being refiled if service is not completed properly by May 19,

2017.

        Lastly, Defendants alternatively move to dismiss Plaintiff’s Complaint under Rule

12(b)(6) for failure to state a claim against the four individual Defendants. In his Opposition,

Plaintiff states that he “is not suing the Defendants Baylor, Haynesworth, and Martin as



                                                 4
individual Defendants under Title VII of the Civil Rights Act of 1964 and hereby dismisses them

as Defendants.” Pl.’s Opp’n at 1. Based on this representation, the Court GRANTS-IN-PART

Defendants’ Motion to Dismiss in that it DISMISSES Baylor, Haynesworth, and Martin as

Defendants in this case. The Court does not reach the merits of Defendants’ Rule 12(b)(6)

motion with respect to Defendant Hawkins, whom Plaintiff has not agreed to voluntarily dismiss,

because, as explained above, the Court does not yet have personal jurisdiction over Defendant

Hawkins due to Plaintiff’s failure to serve him. See Hilska, 217 F.R.D. at 23 n.10 (“to proceed to

a Rule 12(b)(6) determination, the court must first determine that the plaintiff has properly

effected service of process.”). The Court does, however, note that Plaintiff has clarified his

Complaint by explaining that Hawkins is “being sued in his capacity as the agent of the employer

who is alone liable for a violation of Title VII,” Pl.’s Opp’n at 6, and not as an individual

Defendant who is allegedly himself liable.

                                        IV. CONCLUSION

       For the foregoing reasons, the Court GRANTS-IN-PART and DENIES-IN-PART

WITHOUT PREJUDICE Defendants’ Motion to Dismiss. Defendants Baylor, Haynesworth,

and Martin are DISMISSED from this case. Plaintiff must serve the remaining Defendants and

file proof of such service by May 19, 2017. An appropriate Order accompanies this

Memorandum Opinion.

Dated: April 19, 2017
                                                         /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




                                                  5
