Brice v. Bethany Retirement Living

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Alexandra Briyana Brice, 	)
)
Plaintiff, 	) 	REPORT AND RECOMMENDATION
)
v. 	)
)
Bethany Retirement Living, 	) 	Case No.: 1:24-cv-00033
)
Defendant. 	)
On November 15, 2024, Defendant Bethany Retirement Living (“Bethany”) filed a Motion
to Dismiss. (Doc. No. 15). On December 5, 2024, Plaintiff Alexandra Briyana Brice (“Brice”) filed
a response in opposition to Bethany’s motion. (Doc. No. 19). On December 10, 2024, Bethany
filed a reply. (Doc. No. 22). For the reasons articulated below, it is recommended that Bethany’s
motion be granted.
I. 	BACKGROUND
Brice initiated the above-entitled action pro se and in forma pauperis against her former
employer, Bethany Retirement Living, pursuant to Title VII of the Civil Rights Act of 1964 (“Title
VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the North Dakota
Human Rights Act. Brice’s claim was subsequently reviewed pursuant to 28 U.S.C. § 1915(e)(2)
and found to have no cognizable claim under Title VII for sex discrimination and under ADEA for
age discrimination.
On May 9, 2024, Brice was ordered to file an Amended Complaint to address the original
Complaint’s deficiencies and provide a copy of the Charge of Discrimination filed with the EEOC.
(Doc. No. 7).
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On July 11, 2024, Brice filed an Amended Complaint containing the Charge of
Discrimination and Right to Sue. (Doc. No. 10). Brice’s Amended Complaint was reviewed, and
on October 21, 2024, the court issued an Order to Answer and of Partial Dismissal. (Doc. No. 11).
The court ordered the Clerk’s office to effectuate service of the Summons, Amended Complaint,
and the court’s order upon Bethany, and dismissed Brice’s retaliation claim, finding she failed to
renew the claim in her Amended Complaint.
On November 6, 2024, Brice filed a Motion for Reconsideration. (Doc. No. 14). She
requested the court reinstate her retaliation claim. On November 20, 2024, Bethany filed a response
in opposition to Brice’s motion. (Doc. No. 17). On January 3, 2025, the court denied Brice’s
motion. (Doc. No. 28).
On November 15, 2024, Bethany filed a Motion to Dismiss, requesting the court dismiss
the Amended Complaint and Demand for Jury Trial in its entirety pursuant to Federal Rules of
Civil Procedure 12(b)(5), 4(m), 12(b)(6), and for failure to name a legal entity capable of being
sued. (Doc. Nos. 15, 16).
II. 	LEGAL STANDARD
Federal Rules of Civil Procedure 12(b) governs defenses to a claim for relief. Under Rule
12(b)(5), a complaint may be dismissed for insufficient service of process. FED. R. CIV. P. 12(b)(5).
Rule 4(m) dictates that “[i]f a defendant is not served within 90 days after the complaint is filed,
the court – on its own 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.”
FED. R. CIV. P. 4(m). However, if a plaintiff shows good cause for its failure, service must be
extended for an appropriate period. FED. R. CIV. P. 4(m). Good cause is shown when:
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(1) the plaintiff’s failure to complete service in timely fashion is a result of the
conduct of a third person, typically the process server, (2) the defendant has evaded
service of the process or engaged in misleading conduct, (3) the plaintiff has acted
diligently in trying to effect service or there are understandable mitigating
circumstances, or (4) the plaintiff is proceeding pro se or in forma pauperis.
Harms v. Burlington Res. Oil & Gas Co., LP, No. 4:12-CV-120, 2014 WL 12469950, at *4
(D.N.D. Nov. 4, 2014) (quoting Kurka v, Iowa Cnty, Iowa, 628 F.3d 953, 957 (8th Cir. 2010)).
A motion to dismiss may also be brought for “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, a complaint must contain
‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”
FastTrac Transportation, LLC v. Pedigree Techs., LLC, 618 F. Supp. 3d 858, 863 (D.N.D. 2022)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A] formulaic recitation of the elements of
a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In ruling
on the motion, the court must accept the factual allegations in the complaint as true and construe
them in a light most favorable to the nonmoving party. Bohan v. Honeywell Intern., Inc., 366 F.3d
606, 608 (8th Cir. 2004). When analyzing pro se documents, they must be liberally construed, with
a pro se complaint held to less stringent standards than that of pleadings drafted by attorneys.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Matters outside the pleadings may not be considered by the court when deciding a Rule
12(b)(6) motion, but documents embraced by the complaint may be considered. Zean v. Fairview
Health Servs., 858 F.3d 520, 526 (8th Cir. 2017); see Enervations, Inc. v. Minnesota Mining &
Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004).
While courts primarily consider the allegations in the complaint in determining
whether to grant a Rule 12(b)(6) motion, courts additionally consider “matters
incorporated by reference or integral to the claim, items subject to judicial notice,
matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the complaint whose authenticity is unquestioned;” without
converting the motion into one for summary judgement.
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Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n. 3 (8th Cir. 2012) (quoting 5B Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (4th ed. 2024)).
III. 	DISCUSSION
A. Trade Name v. Legal Entity
Bethany argues “Bethany Retirement Living” is a trade name rather than a legal entity
subject to suit and so Brice’s Amended Complaint should be dismissed. The North Dakota
Secretary of State website affirms “Bethany Retirement Living” is a trade name owned by
American Lutheran Homes, Inc. N.D. Sec’y of State, https://firststop.sos.nd.gov/search/business
(search “Bethany Retirement Living”). A trade name cannot sue or be sued. Diesel Mach., Inc. v.
Manitowoc Crane Grp., 777 F. Supp. 2d 1198, 1213 (D.S.D. 2011); see Ping v. Aneta Parkview
Health Ctr., No. 3:18-CV-216, 2019 WL 13300458, at *3 (D.N.D. Apr. 22, 2019); Pacheco v.
Joseph McMahon Corp., 698 F. Supp. 2d 291, 295 (D. Conn. 2010).
Although Brice failed to correctly name a legal entity subject to suit, her claim falls under
the misnomer principle. The misnomer principle occurs on occasions where the plaintiff sues a
corporation but misnames it. Figueroa v. Tyson Foods, Inc., No. 8:06CV748, 2007 WL 2572441,
at *2 (D. Neb. Sept. 4, 2007). “[T]he principle has been applied more broadly…to complaints that
named a corporation instead of a partnership, a parent corporation instead of a subsidiary, a
building instead of its corporate owner, and a corporation in liquidation instead of its successor.”
Roberts v. Michaels, 219 F.3d 775, 778 (8th Cir. 2000) (footnote omitted). A misnomer is a true
misnomer when the right party was served, but with the wrong name. Figueroa, 2007 WL 2572441,
at *2. This principle is reflected in Federal Rules of Civil Procedure 4(a) and 15(c). See Alexander
v. Stratus Bldg. Sols., No. 4:14 CV 921 CDP, 2014 WK 6673517, at *2 (E.D. Mo. Nov. 24, 2014).
The traditional misnomer principle is satisfied when a defendant, through its prior participation in
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an EEOC proceeding, knew or had reason to know that, but for a mistake regarding the proper
party’s identity, action would have been brought against it. Id. at *3.
Although Brice misnamed Bethany in her pleadings, using its trade name rather than its
legal entity, Bethany participated in the EEOC proceedings as “Bethany Retirement Living.” (See
Doc. No. 10-2).1 However, it seems Brice had at least a passing knowledge that Bethany went by
American Lutheran Homes, Inc. based on her Amended Complaint, which noted, “Defendant
Bethany Retirement Living (hereafter ‘Bethany’) is the trade name of an entity which provides
skilled nursing, assisted living and rehabilitation services.” (Doc. No. 10 at 1). Even so, Bethany
knew, or should have known the suit would have been brought against it, but for the mistaken
identity of the proper party based on its involvement in the EEOC proceedings. It is also clear
Bethany received actual notice of the suit when it was served with the Summons. (Doc. No. 13).
Accordingly, dismissal for misnaming Bethany is not warranted. However, it is recommended the
motion to dismiss be granted for reasons articulated in subsection C.
B. Service of Process under Rule 12(b)(5)
Bethany next argues for dismissal for insufficient service of process under Rule 12(b)(5)
as Brice failed to serve Bethany within 90 days of filing the Amended Complaint. Under Rule 4(m)
if a party is not served within 90 days of the complaint being filed, the court must dismiss the
action without prejudice. Here, Brice filed her Complaint on February 23, 2024. The court
subsequently screened her Complaint, and an Amended Complaint was filed on July 11, 2024. The
court completed screening of the Amended Complaint on October 21, 2024. A Summons was
issued the same day and served on Bethany on October 25, 2024. Bethany now requests dismissal
as it was served with the complaint over 90 days from filing.
1 Brice’s Determination and Notice of Rights letter from the EEOC cc’s the trade name, “Bethany Retirement Living,”
as opposed to American Lutheran Homes, Inc.
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The court may extend service upon a showing of good cause. Good cause can be shown
when a plaintiff is proceeding pro se or in forma pauperis. In this case, Brice is proceeding both
pro se and in forma pauperis. “In forma pauperis plaintiffs must rely on the district court and the
U.S. Marshals Service to effect service of process according to 28 U.S.C. § 1915.” Robinson v.
Clipse, 602 F.3d 605, 608 (4th Cir. 2010); see 28 U.S.C. § 1915(d); F ED. R. CIV. P. 4(c)(3)
(emphasis in original). “Therefore, an in forma pauperis plaintiff should not be penalized for a
delay caused by the court’s consideration of his complaint. That delay ‘is solely within the control
of the district court.’” Robinson, 602 F.3d at 608; see Paulk v. Dept. of Air Force, Chanute Air
Force Base, 830 F.2d 79, 83 (7th Cir. 1987); Urrutia v. Harrisburg Cnty Police Dep’t, 91 F.3d 451,
453 (3d Cir. 1996). Moreover, the Advisory Committee Notes on the 1993 Amendments to Rule
4(m) specifically advises the court to protect pro se plaintiffs from the consequences of delay
associated with its review of an in forma pauperis claim.
In this case, the court issued an order in which the Summons and Complaint could not be
issued until directed by the court after its review of the Complaint. (Doc. No. 5). As such, the time
before the court authorized service does not count against Brice. See Robinson, 602 F.3d at 607
(“[T]he period of time before the district court authorized service by the Marshals Service does
not count against [plaintiff] for purposes of determining the limitation period.”)
Under Rule 4(m)’s good cause requirement, the court would reach a similar conclusion.
Because the courts’ order delaying service of the Summons and Complaint and the time required
to screen Brice’s Complaint/Amended Complaint under 28 U.S.C. § 1915 is a matter outside
Brice’s control, there is good cause to extend the 90-day period.
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C. Failure to State a Claim under Rule 12(b)(6)
Bethany contends the Amended Complaint must be dismissed as Brice failed to assert a
plausible claim for discrimination or defamation. To withstand a motion to dismiss, Brice must
have pleaded “enough facts to state a claim to relief that is plausible on its face.” Bell Alt. Corp. v.
Twonbly, 550 U.S. 554, 555-56 (2007). This means Brice must have articulated enough facts to
allow the court to draw an inference Bethany is liable for the alleged misconduct. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Brice attached multiple exhibits to her Amended Complaint, including (1) the Charge of
Discrimination and (2) the Determination and Notice of Rights from the EEOC. (Doc. Nos. 10-1
and 10-2). These documents may be properly considered under the motion to dismiss as their
authenticity is unchallenged and are embraced by Brice’s pleadings. Brice also attached additional
exhibits to her response, including: (1) an exhibit list, (2) the North Dakota Board of Nursing
decision, 	(3) 	potential 	violation 	report, 	(4) 	text 	messages, 	(5) 	October 	22, 	2022 	email
correspondence, (6) October 25, 2022 letter, (7) November 8, 2022 letter, (8) letter of resignation,
(9) employer written position statement, (10) rebuttal statement, (11) claimant notice, (12)
monetary determination, (13) proof of employment, (14) drug testing documentation, and (15)
original complaint. Given that a majority of the above-noted exhibits are not embraced by the
pleadings and are otherwise not integral to the determination of the motion to dismiss, they shall
not be considered.
To present a prima facie case of racial discrimination, Brice must show (1) she is a member
of a protected class, (2) was qualified for her position, and (3) suffered adverse employment action
under circumstances permitting inference the action was a result of unlawful discrimination.
Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 810 (8th Cir. 2005); see Habib v.
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NationsBank, 279 F.3d 563, 566 (8th Cir. 2001). Here, there is not enough information available
for Brice to establish a plausible claim of racial discrimination. While it is not disputed that Brice
is a member of a protected class and was qualified for her position,2 she does not show she suffered
adverse employment action under circumstances permitting inference the action resulted from
unlawful discrimination.
Brice alleges in her Amended Complaint that she was treated differently from white nurses
(both male and female), who would have immediately been sent to the emergency room if they
complained of symptoms like that of Brice in September of 2022. She also asserts white employees
would have been sent for drug testing the same day and are not terminated for alleged narcotics
usage without a drug test, and that white employees make crucial mistakes regarding resident care
but are not reported to the North Dakota Board of Nursing. In her statement of facts, Brice also
alleges being told that Bethany “will use their black employees, as scape-goat to protect their white
employees if needed. Brice was also told at Bethany, when they want to falsely accused [sic] a
black nurse or destroy your credibility or career as a nurse by reporting you to the Board of
Nursing; because you reported or complained about one of their white employees.” (Doc. No. 10
at 4).
Although Brice attempts to show unlawful discrimination based on race, her allegations
are not substantiated. She puts forth conclusory and hypothetical statements alleging how Bethany
acts based on an employees’ race, without evidentiary support. There is also no concrete backing
behind Brice’s statement that Bethany uses its black employees like “scapegoats.” The court has
no indication of who may have made these statements to Brice, nor evidence of such allegations.
2 Bethany notes in its reply, “[Brice] cannot address the required elements of each of her claims beyond the assertion
that she is within the protected class, was arguably qualified for the position based on her employment, and was
ultimately terminated.” (Doc. No. 22 at 3).
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Furthermore, Brice needed to have shown her firing was done under circumstances which raise an
inference that it occurred due to racial discrimination. Brice does not attempt to connect the alleged
reasons for her termination to her race, beyond her vague statement that white employees were not
terminated based on alleged narcotic usage without a drug test. She does not give examples of
situations where such an event occurred or how her situation differed. Instead, her statement
appears to be hypothetical in nature. Therefore, Brice’s allegations of racial discrimination are
insufficient to state a plausible claim and the failure to sufficiently plead the elements of the claim
warrant dismissal under Rule 12(b)(6).
To present a case for sex discrimination under Title VII, Brice must show (1) she is a
member of a protected class, (2) was qualified to perform her job, (3) she suffered an adverse
employment action, and (4) nonmembers of her class (members of the opposite gender in a Title
VII context) were not treated the same. Boone v. Larson Mtg. Co., Inc., 299 F.Supp.2d 1008, 1017
(D.S.D. 2003) (citing 42 U.S.C. § 2000e-2(a)(1)).
Here, Brice fails to allege facts sufficient to state a claim of sex discrimination. Although
Brice argues she was a member of a protected class, was qualified to perform her job and suffered
adverse employment action, she does not make sufficient allegations that nonmembers of her class
were treated differently. Brice only asserts that she “was treated differently from male nurses in
regard to her salary.” (Doc. No. 10 at 14). Elsewhere in the Amended Complaint, Brice contends
that medical aides have less education, training, and qualifications than LPNs, but make more than
her. Specifically, “[w]hen terminated by Bethany in October 2024, Brice was paid $25.06 per hour.
Ongaga, a med aide, was paid $27 an hour. ‘Yolie,’ another med aide, was paid about $29 an hour.
And ‘Corey,’ a new LPN graduate white male was [paid] $28 an hour.”3 (Id. at 12). It does not
3 Elsewhere in the amended complaint it appears as though Ongaga is identified as male, however, the gender of Yolie
remains unclear.
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appear that Brice is arguing the pay disparity is due to gender, but rather based on position. Nor
does Brice identify the specific education, training, and qualifications LPNs have compared to
medical aides to warrant LPNs being paid more. Even if Brice did allege the disparity was based
on gender, she does not identify the gender of the individuals beyond Corey, who is of similar
status as Brice as an LPN. Thus, Brice fails to sufficiently plead a sex discrimination claim under
Title VII.
Age discrimination requires Brice show (1) she belonged to a protected class, (2) was
qualified for the position for which she applied, (3) was terminated from the position, and (4) the
position was filled by an individual “sufficiently younger to permit the inference of age
discrimination.” Hammer v. Ashcroft, 383 F.3d 722, 726 (8th Cir. 2004); see also Schiltz v.
Burlington N. R.R., 115 F.3d 1407, 1412 (8th Cir. 1997). It is undisputed that Brice is a member
of the protected class as a woman over 40 years of age,4 that she was qualified for her position,
and that she was terminated by Bethany. However, Brice does not allege facts to show her position
was filled by an individual younger than her, permitting an inference of age discrimination.
There is no information given in the amended complaint that Brice was terminated and
replaced by a younger individual. Brice also does not indicate her position was filled at all. The
only reference to alleged age discrimination is Brice’s assertion that she was passed over for a full-
time nurse position for a “young new grad white male nurse.” (Doc. No. 10 at 11). However, there
is no information pertaining to the age of this nurse other than the fact he was “young,” and Brice
subsequently notes that she did not get the position as the other nurse was more qualified. (Id.). As
such, Brice fails to sufficiently plead the elements of age discrimination and so dismissal of the
claim is warranted.
4 At the time of this Order, Brice is approximately 46 years of age. (See Doc. No. 10 at 2).
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To allege defamation under North Dakota law, Brice must show Bethany engaged in libel
or slander. Libel requires a finding that there was a “false and unprivileged publication by
writing…which has a tendency to injure the person in the person’s occupation.” N.D.C.C. § 14-
02-03. Slander occurs when there is “a false and unprivileged publication other than libel,
which…[c]harges any person with a crime…[or] [t]ends directly to injure the person in respect to
the 	person’s 	office, 	profession, 	trade, 	or 	business,…by 	imputing 	to 	the 	person 	general
disqualifications in those respects which the office or other occupation particularly requires.”
N.D.C.C. § 14-02-04. However, under N.D.C.C. § 14-02-05, a communication is privileged when
it is made:
1. 	In the proper discharge of an official duty;
2. 	In any legislative or judicial proceeding or in any other proceeding
authorized by law;
3. 	In a communication, without malice, to a person interested therein by one
who also is interested, or by one who stands in such relation to the person
interested as to afford a reasonable ground for supposing the motive for the
communication innocent, or who is requested by the person interested to
give the information; and
4. 	By a fair and true report, without malice, of a judicial, legislative, or other
public official proceeding, or of anything said in the course thereof.
In the cases provided for in subsections 3 and 4, malice is not inferred from
the communication or publication.
Brice argues defamation occurred as Bethany’s filing of the Potential Violation Report with
the North Dakota Board of Nursing was “a deliberate and malicious action to perpetuate what it
knew to be a falsehood, i.e. Brice’s alleged use of Tramadol while on duty, or made with reckless
disregard of the truth, all in violation of N.D.C.C. Chapter 14-02.” (Doc. No. 10 at 15). She also
asserts her ability to obtain employment after being terminated was negatively impacted. (Id.).
However, a communication is deemed privileged when it is made in the proper discharge of an
official duty, or to an interested person by another interested person. Moreover, a facility such as
Bethany is required to report allegations involving suspected abuse, neglect, exploitation, or
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mistreatment. 42 U.S.C. § 483.12(c). Consequently, Brice cannot show the publication was
unprivileged, and so fails to state a plausible claim for relief.
Even if Brice had stated a plausible claim, the court may decline to exercise supplemental
jurisdiction over the state law defamation claim if all claims arising under federal law have been
dismissed. See 28 U.S.C. § 1367(c)(3). Because Brice has failed to state a plausible Title VII and
ADEA claim, it is recommended the court decline to consider her defamation claim.
IV. 	CONCLUSION
For the reasons articulated above, it is RECOMMENDED that Bethany’s Motion to
Dismiss (Doc. No. 15) be GRANTED.
NOTICE OF THE RIGHT TO FILE OBJECTIONS
Pursuant to D.N.D. Civ. L.R. 72.1(D)(3), any party may object to this recommendation within
fourteen (14) days after being served with a copy of this Report and recommendation. Failure to
file appropriate objections may result in the recommended action being taken without further
notice or opportunity to respond.
Dated this 24th day of February, 2025.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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