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Zambon v. Dollar Tree Pigeon Forge

United States District Court, E.D. Tennessee

March 28, 2018

SHEILA J. ZAMBON, Plaintiff,
v.
DOLLAR TREE PIGEON FORGE, et al., Defendants.

          MEMORANDUM OPINION

          THOMAS A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE.

         Before the Court are several motions filed by the parties in this case: (1) the renewed motion to dismiss for insufficient service of process filed by defendants Dollar Tree Pigeon Forge (“Dollar Tree”), Jessica Alfonso, and Jimmy Clark [Doc. 31];[1] (2) plaintiff's motion for reconsideration and for the disqualification of the undersigned and Magistrate Judge H. Bruce Guyton [Doc. 32]; (3) defendants' motion to dismiss for lack of subject-matter jurisdiction and for failure to state a claim upon which relief may be granted [Doc. 34]; (4) plaintiff's motion for reconsideration and for a stay of proceedings until her disqualification motion is decided [Doc. 36]; and (5) plaintiff's motion to reaffirm disqualification [Doc. 39]. Defendants have responded to plaintiff's filings [Docs. 37-38]. For the reasons explained below, the Court will deny plaintiff's motions for reconsideration, disqualification, and a stay, will grant defendants' motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim, and will deny as moot defendants' motion to dismiss for insufficient service of process.

         I. Background

         Plaintiff's pro se complaint alleges that defendants Dollar Tree, Jessica Alfonso, Deputy Alfonso, and “Jimmy District Manager” (identified by defendants as Jimmy Clark) discriminated against plaintiff by failing to hire her [Doc. 2 ¶ 1]. Plaintiff asserts that, in May 2017, she applied for a job at the Dollar Tree and that, over three weeks later, manager Jessica Alfonso called her home to speak with her [Id. ¶ 4]. Plaintiff alleges that, when she returned this call, Alfonso stated that she recognized plaintiff's voice and did not mean to call her, but rather intended to call a Sheila who had applied for a job at the Dollar Tree [Id.]. Plaintiff alleges that, after she told Alfonso it was she who had applied for the job, Alfonso repeated her earlier comments, said “she did not want [plaintiff], ” and hung up [Id.].

         Plaintiff further asserts that Alfonso's husband, Sevier County Deputy Alfonso, used his job to “dig into [plaintiff's] back record, ” which only the “main Dollar Tree” has the right to do [Id.]. Plaintiff notes that she previously worked as a manager for a store in Ohio for over fifteen years and was an exemplary employee [Id.]. Yet, according to plaintiff, Alfonso refused to even interview her solely “because of her voice” [Id.]. Finally, plaintiff alleges that she asked another manager to have district manager Clark call her, but that he still has not done so [Id.]. On September 18, plaintiff filed a supplement to her complaint, alleging that on September 5 she was denied service at the Dollar Tree store and was told the employees were not allowed to talk to her, despite her being a “good customer” [Doc. 7].

         On September 25, defendants responded by moving to dismiss this action for insufficient service of process or, alternatively, for an extension of time to answer the complaint [Doc. 8]. While this motion was pending, defendants also moved for leave to file a second pre-answer motion to dismiss, this time for failure to state a claim [Doc. 19]. The Court subsequently entered an order granting defendants' motion to dismiss in part and directing plaintiff to either properly service defendants with process, or provide sufficient proof she had already done so, within thirty days [Doc. 20]. The Court then denied defendants' motion for leave to file a second pre-answer motion to dismiss, with leave to refile in light of the Court's ruling on the service of process issues [Doc. 21]. Plaintiff next sought reconsideration of that ruling [Doc. 22], which the Court denied [Doc. 23].

         After plaintiff again attempted to serve defendants [Docs. 25-29], defendants renewed both their motion to dismiss for insufficient service of process [Doc. 31] and their request to file a second pre-answer motion to dismiss [Doc. 30]. The Court granted the latter motion on February 13, 2018 [Doc. 33], and defendants then filed a motion to dismiss for lack of subject-matter jurisdiction and for failure to state a claim [Doc. 34]. Meanwhile, plaintiff filed a motion requesting “reconsideration” of defendants' pending motions to dismiss, as well as the recusal or disqualification of both the undersigned and Magistrate Judge Guyton [Doc. 32]. Later, plaintiff filed an affidavit supporting her disqualification motion [Doc. 35], as well as another motion for reconsideration of defendants' pending dispositive motions and for a stay pending the resolution of the disqualification issue [Doc. 36]. Defendants have responded to these last two filings [Docs. 37-38]. Finally, plaintiff has now filed yet another motion seeking the disqualification of the undersigned and Magistrate Judge Guyton [Doc. 39].

         II. Analysis

         The Court will first address plaintiff's motions for reconsideration, disqualification, and a stay of proceedings [Docs. 32, 36, 39]. Next, the Court will consider defendants' motion to dismiss for lack of subject-matter jurisdiction and for failure to state a claim [Doc. 34]. Given the Court's resolution of this latter motion, the Court need not decide the merits of defendants' renewed motion to dismiss for insufficient service of process [Doc. 31].

         A. Plaintiff's Motions for Reconsideration, Disqualification, and a Stay

         The Court turns first to plaintiff's three pending motions [Docs. 32, 36, 39]. The titles of Docket Entries 32 and 36 indicate a request that the Court “reconsider” defendants' motions to dismiss. But plaintiff does not elaborate on (or even mention) this request in the bodies of the motions. Moreover, until issuing this opinion, the Court had not ruled on the merits of defendants' pending dispositive motions. Thus, the Court will deny plaintiff's request for reconsideration as moot. To the extent these motions may be construed as offering substantive arguments in opposition to defendants' dispositive motions, however, the Court will consider such arguments in the next section of this opinion.

         The bulk of these filings is devoted to plaintiff's assertion that the undersigned and Magistrate Judge Guyton should disqualify themselves from this case. In her first motion, plaintiff claims the Court has “given these [d]efendants every advantage over the [p]laintiff, a pro se [litigant]” [Doc. 32 p. 1]. Plaintiff also seems to suggest that federal judges have an inherent bias against pro se litigants because of the relationship of licensed attorneys with the judicial system. Next, plaintiff argues that this Court has exhibited its prejudice against her, and bias in favor of the defendants, by requiring her to pay further costs for service of process.

         Plaintiff reiterates arguments she has made previously in this case [see, e.g., Docs. 13, 22], to the effect that the United States Marshals Service has now properly served defendants twice in this case. Plaintiff further asserts that she requested clarification from the Court regarding her service of process duties [see Doc. 22], but received no such assistance and had to pay for service of process again without clarification from the Court.

         Next, in her second motion, plaintiff asserts that defendants “have been allowed to cause further discrimination against [her], ” because the Court has permitted defendants to file three motions to dismiss and to not answer her complaint [Doc. 36 p. 3]. Plaintiff further suggests that the Court has exhibited bias and prejudice by requiring her, a pro se litigant not trained in the law, to “state case law” [Id. at 5]. In addition, plaintiff moves the Court to stay this case until it has decided the disqualification issue. Finally, plaintiff's third disqualification ...


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