Brown v. Charlotte Rentals LLC et al, No. 3:2015cv00043 - Document 15 (W.D.N.C. 2015)

Court Description: ORDER granting in part and denying in part 8 Motion to Dismiss. Signed by Chief Judge Frank D. Whitney on 07/28/2015. (Pro se litigant served by US Mail.)(jlk)

Download PDF

misled by the misnomer, and the fact that actual notice was achieved further supports this position. In this case, although technically incorrect, the process “fulfilled its purpose” of alerting Defendants of the pendency of the action and is sufficient under the law. United States v. A.H. Fischer Lumber Co., 162 F.2d at 873. Defendants also argue that Plaintiff’s failure to sign his complaint was a violation of Federal Rule of Civil Procedure 11(a) which requires that “[e]very pleading...be signed by at least one attorney . . . or by a party personally if the party is unrepresented.” Fed. R. Civ. P. 11(a); (Doc. No. 8). Additionally, Rule 11 requires that the paper state the signer’s address, email address, and telephone number. Fed. R. Civ. P. 11(a). In response to several Roseboro notices, Plaintiff has filed a signed complaint including the required information to satisfy Rule 11(a). (Doc. No. 14). Therefore, Defendants’ motion to dismiss for insufficient process is DENIED. ii. Insufficient Service of Process Defendants also argue that Plaintiff failed to properly effectuate service and that this improper service warrants dismissal. Given Plaintiff’s IFP status, service was ordered to be made by the U.S. Marshals Service. (Doc. No. 4). Because only one address was provided by 7 Plaintiff, two copies of the summons and complaint were mailed via certified mail to said address, return receipt requested, in one envelope for service upon both Cedric McCorkle and Charlotte Rental. (Doc. No. 8). However, both return receipts were signed by “Katie Brown,” indicating that she received service on behalf of both defendants. (Doc. No. 6, 7). In light of the liberal construction given to Federal Rule of Civil Procedure 4 when actual notice is achieved, the Court finds that the alleged insufficiency does not warrant dismissal as to Charlotte Rental LP. However, the insufficiency is more problematic in regards to the individual defendant, Cedric McCorkle. As stated above, service upon an individual must be made personally, left at the defendant’s dwelling house, or delivered to an agent appointed by the individual to receive service. In this case, the summons and complaint were sent to Cedric McCorkle’s place of employment, and received and signed by Katie Brown. Nothing in the record indicates that Katie Brown is Cedric McCorkle’s agent authorized to receive service. Therefore, the Court finds that Defendant McCorkle was not properly served. Accordingly, Defendant’s Motion to Dismiss on these grounds is DENIED as to Charlotte Rental and GRANTED as to Cedric McCorkle. C. Failure to State a Claim A complaint will survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim if it contains facts sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663. Additionally, when deciding a 12(b)(6) motion, the court must accept the facts in the complaint as true, viewing “the facts in the light most favorable 8 to the plaintiff, but not accept the legal conclusions drawn from the facts, and need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Jordan v. Alternative Res. Corp., 458 F.3d 322, 338 (4th Cir. 2006) (internal citations, alterations, and quotations omitted). Although “detailed factual allegations are not required, a complaint must assert factual allegations which raise a right to relief above the speculative level.” Finley v. SageNet LLC., No. 3:09-CV-123-FDW, 2009 WL 1850958, at *1 (W.D.N.C. June 29, 2009) (citing Bell Atl. Corp. 550 U.S. at 555) (internal quotations omitted). Plaintiff claims that Defendants failed to install a ramp for wheelchair access into his unit. (Doc. No. 1). Plaintiff alleges that this conduct is actionable discrimination on the basis of his disability. (Doc. No. 1). The Fair Housing Act prohibits housing discrimination on the basis of disability and requires owners of housing facilities to allow tenants with disabilities to make reasonable access-related modifications to their private living space and common use spaces. Further, it requires that new multifamily housing with four or more units be designed and built to allow access for persons with disabilities. See 42 U.S.C. §3601 et. seq.3 The Court does not address the merits of Plaintiff’s claim at this state of litigation. However, when construed liberally, the facts, assumed as true and in the light most favorable to the plaintiff, nudge Plaintiff’s claim of housing discrimination from conceivable to plausible. Although Plaintiff’s specific theories of relief are not entirely clear, the Court finds that there may be a cognizable claim within the Plaintiff’s factual allegations. Accordingly, Defendants’ motion to dismiss for failure to state a claim is DENIED. 3 The Court does not address the merits of specific Fair Housing Act claims, as neither party has fully raised or briefed the issue, but does note that the Fair Housing Act does not require a landlord to pay for changes to a residence. The FHA simply requires that landlord allow tenants with disabilities to make reasonable access-related modifications to their private living space, as well as to common use spaces. See 42 U.S.C. § 3604(f)(3)(A). 9 IV. CONCLUSION For the aforementioned reasons, the Court finds that subject matter jurisdiction is proper and that Plaintiff has stated a claim upon which relief can be granted. Further, the Court finds that process was sufficient and service of process was sufficient as to Defendant Charlotte Rental, LP. However, the Court finds that Plaintiff did not properly serve the individual defendant, Cedric McCorkle, and cannot find in the record that actual notice was achieved as to him. For those reasons, Defendants’ Motion to Dismiss is DENIED IN PART and GRANTED IN PART. The Clerk is respectfully directed to mail a copy of this order to Mr. Terry Brown at 3209 Erskine Drive, Charlotte, NC 28205. IT IS SO ORDERED. Signed: July 28, 2015 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.