WARREN v. BRAY et al, No. 1:2013cv01144 - Document 33 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 4/16/2015. For the reasons stated herein, the Court finds that it lacks jurisdiction to adjudicate this matter. Accordingly, the undersigned RECOM MENDS that Defendant's motion to dismiss (Docket Entry 24 ) be GRANTED. Further, because Defendant Scales has never been properly served, as to him, the Court RECOMMEND dismissal of the action without prejudice pursuant to Fed. R. Civ. P. 4(m).(Daniel, J)
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WARREN v. BRAY et al Doc. 33 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA TINIIS ìøÁ.RREN, ) ) Plaintiff, V LETITI.\ McGEOUGH, and GARY SCALE,S Defendants ) ) ) ) ) ) ) ) 1,:1,3CY11,44 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This mattet is before the Court on Defendant Letitia McGeough's motion to dismiss the complaint. (Docket Entty 24.) The motion has been fully briefed and the matter is tipe fot disposition. Fot the reasons that follow, the undetsigned recommends that Defendant's motion be gtanted, and that this action be dismissed for insufficient service of ptocess, lack of personal judsdiction, lack of subject-matter jurisdiction under the Rooker-Feldman doctrine, and for failure to state a claim upon which telief can be gtanted. Addrtionally, because Defendant Gary Scales has nevet been ptopedy served, it is recommended that the action be dismissed as to him based on PlaintifPs failute to prosecute. I. FACTUAL AND PROCEDURAL BACKGROUND On December 23, 20L3, Plaintiff Tinika \)Varen filed het complaint in this Court against Letitia McGeough, Gary Scales, and Judge Susan Btay, alleging violations of het civil rights pursuant to vatious fedetal statutes, seeking damages in the amount of $2,000,000. Dockets.Justia.com (Jee Compl., Docket Entry 2.) The complaint has alrcady been dismissed as to Judge Bray. (JeeJudgment, Docket Entry 31.) According to the complaint and attachments thereto, this action arises ftom state district court proceedings involving Plaintift specifically child suppott and custody ptoceedings, and a domestic violence protective order proceeding, or "508" ptoceeding. appears undisputed that Defendant McGeough, an attorney atLegal Aid of It Notth Caroltna, represented Defendant Scales' and PlaintifPs minot son in the state court ptoceedings. (See Def.'s Mem. at2,Docket Entry 25.) Plaintiff alleges that Defendantfs] : 1) Took my 2) 3) 4) 5) 6) 7) patental tights v¡ithout cause and outside my jutisdiction. I{nowingly heatd the cause after I made the coutts that they did not have judsdiction and after I ^wate told her I have aII "Legal Powet over my child", þnot child's name]. I was alienated ftom child. Child was alienated from me [and] his sistet. fMinor child's name] was held outside the Del(alb, County Geotgia jurisdiction against my parental dghts and human dghts [and] civil dghts. Due process wasn't handled þi.][.] Wtote false statement on court documents that is [sic] harmful to my character. (Compl., Docket E.ttty 2 at 2.) These allegations, fot the most patt, ^ppear to be directed at Judge Bray, who has alteady been dismissed ftom this action; thete are no specific allegations in the complaint referring to Defendant McGeough. (See Docket Etttty 2 at 1,-4.) Plaintiff fìled sevetal documents as attachments to the complaint, including: the Memorandum and Recommendation of U.S. Magistrate Judge William Webb transfetdng Noth Catolina to the Middle District (Docket Etttty the action from the Eastern District of 2 2-1 at 1-4); a series of letters from Plaintiff to the N.C. State Bat, "District .,\ttotney Robett James," Judge Wendy Enoch, and other unidentified tecipients in which Plaintiff complains about the eatliet state court proceedings involving Plaintifls minot son (Docket Entry 2-1 at 5-1,4); a copy of a Georgia statute relating to the process fot legitimizing a patent-child relationship under Geotgia law (Docket Entry 2-2); and a document titled "Reasons fot MOTION FEDERAL CIVIL MOTION" which also references the eadier Notth Carcltna state court proceedings involving Plaintifls minot son. (Docket Entry 2-3.) II. DISCUSSION Defendant McGeoughl moves to dismiss the complaint under Fedetal Rules of Civil Ptocedure 1 2(b) (1), 12þ) Q), 12þ) (4), 1 2þX5), and 1 2þ) (6). (Dock et Ently 24.) A. Plaintiff Failed to Effectuate Proper Service of Defendant Defendant frst atgues that the complaint must be dismissed fot lack of personal jurisdiction under Fed. R. Civ. P. 1,2þ)(2), insuffìcient process under Fed. R. Civ. P. 12þ)(4), and insufficient service of ptocess under Fed. R. Civ. P 12(bX5). (Def.'s Mem. at 7, Docket F,nrty 25.) The undersigned agrees. "A motion means for challenging the manner undet Rule 12(b)(5) is the apptoptiate or suffìciency of service of ptocess. The plaintiff the burden of establishing that service of process has been accomplished complies with Rule 4." Plant Genetic 51s., (À4.D.N.C. 1996) (internal citations omitted); Jzrr., No. 1:12CY1.1.60, 201.4 in a manner that N.V. u. Ciba Seeds,933 tr. s'ee Srrpp. 51'9, 526 al¡o Moore u. Superuinr of Albernarle Corr. Med. WL 4160028, at *3 (I\4.D.N.C. Aug. 19, Court may propedy consider afîtdavits or declatations submitted t bears 201'4) (same). The in suppott of a Rule Unl"tr othelwise noted, when using the tetm "Defendant" in this recommendation, the Coutt is refetring to Defendant McGeough. -) 12þX5) motion without convetting the motion to one fot summary judgment. Moore,201.4 \)øL 4160028 at +3. ìØhere a plain:dlff does not effectuate 'lalidserviceof process, the district court [is] without jurisdiction of the defend^ît . B ldg, . ." AFrucz, Iruc. u. Penrod-Staffir 51l, Inc., 7 33 F .2d 1087, 1 089 (4th Cir. 1 984). The Fedetal Rules of Civil Ptocedure require that any sutrunons be "directed to the defendant," Fed. R. Civ. n. a(a)(t)(B), and service may be effected under state law 4GX1)) or by delivering the summons petson's home, (R-ule "to the petson individually," leaving a copy at the ot delivering a copy to "^fl atthorized agent." Fed. R. Civ. P' +(r)Q). Service of process on an individual undet state Caroltna Rule of Civil Ptocedure 4. N.C. GBN. lawin Notth Caroltna is govetned by Noth Sr¡r. S 1,{.-1, Rule 40(1). N.C. R. Civ. P. 4 ptovides that service can be accomplished by delivering a copy of the summons and complaint: to the person; to the person's dwelling or usual place of abode; to an atthorized ^gent; or by mail, addressed to the party to be served. Id. North Catolina does not allow fot service on an employee's supervisot to constitute proper service in the absence of that supervisor being an authodzed agent. See id. Additionally, "[t]he plaintiff is responsible for having the summons and complaint served within the time allowed undet Rule 4(m)." Fed. R. Civ. P. a(c)(1). Rule 4(m) states: If a defendant is not served within 120 days aftet the complaint is filed, 1þs çerrv¡-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice agitnst that defendant or otdet that service be made within a specifìed time. But if the plaintitf shows good cause fot the fal\ure, the court must extend the time fot service for an apptopriate petiod. 4 Fed. R. Civ, P. 4(m). "Pto se status . . . is insuffìcient to establish good cause, even where the pto se plaintiff mistakenly believes that service was made propedy." Hansan u. Fai(ax Cnfl. Sch. Bd., 405 F. App'x 793,794 (4th Cir. 2010) (unpublished) (citing MtNeìl u. United States,508 U.S. 1.06,113 (1993) ("ffie have nevet suggested that procedural tules in ordinary civil litigation should be interpteted so as to excuse mistakes by those who proceed without counsel.")) Here, Plaintiff addressed the summons to "Reptesentative Directot Fot Letitia McGeough,Janet McCally Blue." (Summons, Docket Entry 16.) According to Defendant, Ms. Blue is Defendant's supervisot at Legal id of North Caroltna. (Def.'s Decl. at 1, Docket F,n:rry 26.) Ms. Blue has nevet been authorízed to accept service of ptocess on behalf of Defendant. (See id.) The record does not indicate any futther attempts by Plaintiff to re-serve Defendant. Plaintiff has not catried her burden of showing that service was proper under Rule 4 in that she deliveted a copy of the summoris and complaint to Defendant personally, left a copy at her dwelling place, ot deliveted a copy to an authorized agent. Moreover, undet North Caroltna state law, which is incotpotated by the federal Rule 4, PIaínttff has not shown that she mailed ^ copy of the summons and complaint to Defendant at het tesidence or place of employment and that it was deliveted to Defendant. Service on Defendant's supervisor does not constitute effective service of Defendant.2 Therefote, PlaintifPs attempted service on Defendant is insufficient. 2 Elkins u. Broome,213 F.R.D. 273,276 (X{.D.N.C. 2003) ("Service of process cannot be effected upon [a petson] by serving at his place of employment individuals who are not authorized to accept sewice of process."); see, e.g., PereqLnpequ. Mangorne,117 F.R.D. 327,328 (D.P.R.1987) (serwice on See 5 Additionally, the complaint in this action was filed on Decembet 23,201,3. Q)ocket Entty 2.) On May 1, 2014, the Deputy Clerk of this Court notified Plaintiff she had 14 days to serve Defendants McGeough and Scales. (l.dotice of Failute to Make Service Within 120 Days, Docket Entty 15.) Plaintiff did not attempt to complete service unld.I26 days latet, on lrlay 27,2014,155 days after the complaint was filed. (Jee Summons, Docket Entry 16.) Thus, Plaintiff cleatly failed to effectuate proper service over Defendant in the time allotted by Federal Rule of Civil Ptocedute 4(m). As noted by the Fourth Circuit, when cleatly insufficient service has been btought to the Court's attention, "the tules . . . m^y not be ignoted." Annco, Ir¿c.,733 F.2d at 1089 (4th Ctr. 1,984); see also Falton u. Mickle,134 N.C. App. 620, 624, 51,8 S.E.2d 51,8, 521, (holding that strict compliance with statutory service requirements is necessary, nothwithstanding any actual notice of the ptoceedings). However, "dismissal is not always mandated whete the necessary patties have received actual notice prejudiced by the technical defect in service." of a suit and whete they have not been McCreary u. Vaøþan-Bassett Furniture Co., 41.2 F. Supp. 2d 535,537 (À,{.D.N.C. 2005) (citing Karl¡son u. Røbiruowit7, 318 F.2d 666, 668-69 (4th Cit. 1963)). The Coutt has discretion to dismiss the action or to quash service and allow more time fot setvice of process. Thomø u. Nelms, No. at x1 (À4.D.N.C. Feb. 1.4,201,3); see 1:09CV491.,201,3 McCreary, 41.2F. Sopp. 2d at 537 V/I' 59341.9, . administrative assistant in legal department of police headquaters, who was not appointed agent of policemen, did not constitute effective service); Calder u. Stanþ Courufl Bd. of Educ., No. 1:00CV01,249, 2002WL 31,370364, at x3 (1\{,D.N.C. Sept. 26,2002) (delivery of envelope containing summons and complainl- [o defend¿nt's secÍetary who ws not authorized to accept serwice failed to satis$r technical requirements);Tart u. Hudgins,53 F.R.D. 1.1,6, 1.17 (X4.D.N.C. 1,972) (delivery of copy of summons and complaint to defendant's wife at hrs place of business failed to meet the tequirements of service of process); Hall u. I-.assiter,260 S.F,.2d 1.55, 1.57 (1,979) (delivery of summons and complaint to relative at defendants' place of business drd not comply with the nrles govetning service ofptocess). 6 The Court finds good cause does not exist to allow more time for Plaintiff to attempt proper service, in view of the time that has elapsed since the filing of the complaint and the other defects in the complaint. In the absence of ptopet service, the Coutt does not have personal jurisdiction over eithet defendant, and dismissal is apptopriate. Koehler u. Dodwell, 1,52 F.3d 304, 306 (4th Cir. 199S¡.: B. This Court Lacks Subiect Matter Jurisdiction to Adjudicate this Matter Out of an abundance of caution, the undetsigned will addtess the remaindet of Defendant's arguments. Defendant next asserts that the Coutt lacks subject matter judsdiction ovet Plaintiffs claims by virtue of what has become known as the Roo/<er-Feldnart doctdne. Dirtrict of Colambia Court of Appeal: u. Feldrnan,460 U.S. 462 (1983); Roo/<er u. Fideli4t Trust C0.,263U.5.41,3 (1,923). (Def.'s Mem. at1.0-1'1, Docket Entry 25.) Subject matter juisdiction is both a Constitutional and statutory requitement which restricts federal judicial powef to a limited set of cases and contfovefsies. Thus, "no action of the paties can confer subject-matter judsdiction upon a federal court." Ins. Corþ. of lreland u. Compagnie des Baaxites de Gøinee, 456 U.S. 694,702 (1,982). ì7hen a defendant challenges subject matter jurisdiction, "the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one fot summarT judgment." Nchmond, Fredric/esburg dz Potomoc United States, 945 F.2d 765, 768 (4th kk Co. u. Cir. 1,991). The district court should gra;ît a Rule t Plaintiff has never effectuated service on Defendant Gary Scales. Plaintiff attempted proper service through the United States Marshal's Office, but the summons was returned unexecuted. (Docket Entry 18.) The record does not indicate any futther attempt by Plaintiff to effectuate proper service on Defendant Scales. 7 12þ)(1) motion "only íf the material judsdictional facts are not in dispute and the moving party is entided to ptevail ^s ^ m^tter of law." Id.; see, e.g., Euaw u. B.F. Perkin¡, Co., 166 F.3d 642,647 (4th Cir. 1999). The Rooker-þeldman docttine applies where a federal litigant seeks to teview or overturn a state coutt ordet in federal district court. Exxon Mobil Corþ. u. Saadi Ba.çic Ind.ç. Corþ.,544 U.S, 280,281 (2005). "lJndet theRooker-Feldnan doctrine, lower fedetal coutts generally do not have jutisdiction to review state-court decisions; r^ther, jurisdiction to teview such decisions lies exclusively with superiot state coutts and, ultimately, the United States Supteme Feldman Court." Pþler u. Moore, 1,29 tr.3d 728,731, (4th Cit. 1,997). 'lhe Rooker- doctdne prevents a federal court ftom detetmining that a state court judgment rvas etroneously enteted ot taking action that would tender a stte court judgment Jordhal u. Demoratice Parfl of Va., 1.22 Yoath Serus., 108 F.3d 486, 491, (3d F.3d 1.92, ineffectual. 202 (4th C1r. 1997) (citing Ern¡t u. Child and Cir. 1997)). 'fhe docttine bats fedetal coutts ftom addtessing issues that ate "'inextticably intetwined' r.vith the issues that were before the state coutt." ll/ashington u. IWilmore,407 Coart ofAppeaA'u. F.3d 274, 279 (4th Cit, 2005) (quoting Dist. of Colunbia t'-e|dnan,460U.5.462,486 (1983). An issue is "inextricably intertwined" r.vith those before the state court if "success on the fedetal claim depends upon detetmination that the state court rvrongly decided the issues befote it." a Plyhr, 129 tr.3d at 731 (intetnal quotation marks and citations omitted). The 464 Q006) Rooker-Feldmaru doctrine is a "n ftow docúine." I-ance u. Dennis, 546 U.S. 459, þer cudam). In Exxon, the Supreme Court limited the docttine "to cases of the kind ftom which the doctrine acquired its name: cases btought by state-court losets 8 complaining of injuties caused by state-coutt judgments rendered befote the federal district court ptoceedings commenced and inviting disttict court review and tejection of those judgments." Exxon Mobil Corþ.,544 U.S. at 284. The telief sought in fedetal court must "reverse or modi$r the state court decree" for the doctrine to apply. Adkins u. Rømsfeld,464 F3d 456, 464 (4tb Cu. 2006) (internal quotation matks omitted). Accotdingly, "Exxon tequires us to examine whether the state-coutt loset who files suit seeks tedress fot an injury caused by the state-court decision itself. is not challenging the state-coutt decision, the P.oo,ëer-Feldman in fedetal disttict coutt If [the state-coutt loset] doctrine does not apply." Dauani u. Va, Dtþ't. ofTransp.,434F.3d712,71.8 (4th Cir. 2006) (footnote omitted). In the ptesent against Defendant, case, while it is diffìcult to discern the exact nture of Plaintlffs claims it appeats that they are based on an alleged conspitacy amongJudge Btay, who ptesided in the state court ptoceeding, Gary Scales, and Defendant McGeough, who represented Mt. Scales, to terminate Plaintjffs parental rights. In one of the attachments to the complaint, Plainttff appears to take issue r.vith the finding of the state court to remove her child from her home, and states that she "want[s] all parties sued fot kidnapping and patticipating in the abduction of my son alienating him from me & -y daughtet." (Docket Entry 2-3 at2.) In another attachment, she asserts that "[t]he father must apply for custody in out home statea that has personal jurisdiction over the trvo of us fPlaintifPs minot child] and Tinika $(/affen." (Docket E.rt y 2-4 at1,.) Plaintiff cleatly "seeks tedtess for an injury caused by [o] state-court decision." specifically seeks o Plarntiffis to recover a resident See Dauani,434 tr.3d at 71.9. Moreover, Plaintiff damages ftom l)efendants tesulting of Georgia 9 ftom the tetmination of p^rentz.l dghts by the state court. (Compl. at 2-4, Docket hn:ry 2.) Plaintiff atgues that "[t]his is not a case whete I am asking the Fedetal Court to overturn a State coütl] matter; it is a case that (Pl.'s Resp. I want civil justice fot malice and fra:ud that was conducted during at2,l)ocket Entry 29.) However, such telief is "inextticably internvined" the state court decision, in that decisions the case." to it would r.vith require this Court to reconsidet prior state court detetmine whether they were propetly decided. See D1e u. IJaffield, No. Civ.1:03CV01,077 ,2004WL 3266029, at *5 (14.D.N,C. ug. 26,2004). As in D1e, a ruling in favor of Plaintiff "would necessatily tequite this coutt to fìnd that the Notth Carolina state courts eithet rvtongfully decided cettain issues befote them ot imptopetly entered orders and judgments against Plaintiff [] in civil . . . matters related to Plaintiffs domestic dispute." 1/. "Furthetmore, federal coutts typically avoid decisions in matters related to divotce, child support and child custody because these mattets traditionally fall withín the jurisdiction of state coufts." Id. Because PlaintifPs claims are inextdcably intettwined with the decision of the North Catolina state court related to Plaintiffls domestic dispute with l)efendant Scales, this coutt lacks subject matter judsdiction doctrine of PlaintifPs federal claims undet the Rooþ.er-Ireldman . C. The Complaint Fails to State a Clairn on Which Relief Can Be Granted. Finally, Defendant argues that dismissal is appropriate pursuant to Federal Rule of Civil Procedure 12þ)(6). (Def.'s Mem. 11.-1,5 at Docket Entty 25.) A motion to dismiss undet Rule 12þ)(6) tests the suffìciency of the complaint. Edwards u. Citl of Coldsboro, 178 F.3d 231,,243 (4th Cu. 1,999). -A complaint is required 10 to contain "a short and plain statement of the claim showing that the pleader is entitled to A complaint that telief." Fed. R. Civ. P. 8(a)(2). does not "contain sufficient factual mattet, accepted as true, claim to relief that is plausible on its face"' must be dismissed. A:hroft to 'state a u. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlarutic u. Twombþ, 550 U.S. 544,570 Q007)). "A claim has facial plausibiliry when the plaintiff pleads factual content that allows the court teasonable infetence that the defendant is liable to draw the fot the misconduct alleged." Id.; see, e.g, Sìmmorc u. United Mortg, dv L.oan Inuest., 634 F.3d 754, 768 (4th Cir. 201,1) ("On a Rule 12þ)(6) motion, a complaint must be dismissed if it does not allege enough facts to state claim to telief that is plaasible on its face.") (emphasis in odginal) (intetnal a citation and quotation marks omitted). The "coutt accepts all well-pled facts as true and consttues these facts in the light most favotable to the plaintiff in weighing the legal sufûciency of the complaint," but does not considet "legal conclusions, elements of a cause of action, . . . l:ate assertions devoid of facfial enhancement[,] . . . unwatanted arguments." Nemet Cheurolet, Ltd. infetences, unreasonable conclusions, or u. Consønerffiirs.com, 1nc.,591. (intetnal citations and quotation marks omitted). tr.3d 250,255 (4th Cu.2009) In othet wotds, the standard tequires a plaintiff to articulate facts that, when accepted as true, demonstrate the plaintiff has stated claim that makes it plausible she is entitled to telief. a Francù u. Giacomelüi,588 F.3d 186, 193 (4th Cir. 2009). Whete, as here, the plaintiff is ptoceeding pro rc, the courts are tequited to libetally construe plaintifPs documents, Erì,ëson u. Pardas, 551 U.S. 89, 94 Q007), by holding them to a less sttingent standard than those dtafted by attotneys. E stelle u. Gamble, 429 U.S. 1,1 97 , 106 (1976); ree, e.g., Haghes u. Rowq449 U.S. 5, 9 (1980) (p.t cutiam). The mandated liberal consttuction afforded to pro re pleadings means that "if the court can reasonably read the pleadings to state a valtd claim on which the plaintiff could prevail, it should do so," but disrict court may not rewdte a complaint to include claims that wete nevet a ptesented. Barnett u. Hargett, 1,74 F.3d 11,28, 1133 (1,0th Ctr. 1,999) (intetnal quotation matks omitted). Nor can the court "conjure up questions never Hampton,775 tr.2d 1,274, 1278 (4th Cir. squarely ptesented." Beaadett u. Ci4t of 1985). Futthet, the tequitement of libetal construction does not mean that the court can ignore a cleat failute in the pleading to allege facts which set forth a claim cognizable in a fedetal distríct Servs.,90L F.2d 387 ,391. (4th Cit. 1990); :ee al¡o A:hrort u. court. See ll/eller u. Dep't of Soc. Iqbal,556 U.S. 662, 678 (2009). Here, if PlaintifPs claims were not otherwise barted, she has failed to comply with the pleading tequirements of Rule 8 and her claims must be dismissed. Even taken in the light most favotable to her, Plaintiff does not ptovide the Court with any facts to suppott her conclusory allegations against Defendants in the Complaint. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations 556 U.S. ^t J' Iqbal, 679. Piaintiff attempts to allege some facts in het response to Defendant's motion to dismiss. (Jee Pl.'s Resp. at 3-8, Docket F,ntry 29.) However, when consideting a motion to dismiss, a court cannot considet facts alleged in a tesponsive document;itcan only consider the facts alleged in the initial pleadings. Beck u. Ci\t of Darham, 129 F. S.rpp. 2d 844, 855 (i\d.D.N.C. 2000) (citìng Randall u. United States,30 F.3d 51,8,522 (4th Cit. 1994)). Thetefote, 1,2 the Coutt is limited to reviewing the complaint for purposes of Defendant's motion to dismiss, and will not consider ^ny facts alleged in Plaintiffs tesponsive pleadings. Even after construing the complaint libetally and teading it in the light most favorable to Plaintiff, she has failed to state a claim fot telief which is plausible on its face. Therefote, the undersigned recommends that Plaintiffs complaint against Defendant be dismissed pursuant to Rule 12þ)(6). III. CONCLUSION For the reasons stated above, the Court finds that it lacks jurisdiction to adjudicate this matter. Accordingly, the undersigned RECOMMENDS that Defendant's motion to dismiss (Docket E.rtry 24) be been propetly sewed, as GRÄNTED. Further, because Defendant Scales has nevet to him, the Coutt RECOMMENDS dismissal of the action without ptejudice pursuant to Fed. R. Civ. P. 4(-). U Durham, Notth Catolina April IL ,zots 1,3 ìTebstet Magistrate Judge States
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