United States District Court, E.D. North Carolina, Eastern Division
TERRENCE W. BOYLE, District Judge.
This matter is before the Court on defendants' motion to dismiss [DE 13], plaintiffs' motion for leave [DE 32], plaintiffs' motion to stay [DE 33], and plaintiffs' motion for leave to file a second amended complaint [DE 39]. For the following reasons, defendants' motion to dismiss is GRANTED, plaintiffs' motion for leave is GRANTED, and plaintiffs' remaining motions are DENIED.
Plaintiffs, Eddie and Dorothy Wise, Nash County, North Carolina residents, bring this action against the United States Department of Agriculture ("USDA") and several individuals in their official and individual capacities, alleging various state and federal claims, arising out of the circumstances surrounding the denial of a farm operating loan.
On April 28, 2014, defendants moved to dismiss, or in the alternative, for summary judgment. [DE 13]. On May 7, 2014, pro se plaintiffs were provided with notice oftheir right to respond and the requirements of Rule 56 on January 30, 2007. See Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). [DE 16]. After several extensions of time, plaintiffs responded to the motion to dismiss on August 26, 2014. On August 29, 2014, plaintiffs filed a notice of interlocutory appeal [DE 31] along with a motion for leave to file a motion to stay [DE 32] and a motion to stay the proceedings pending the interlocutory appeal [DE 33]. Then, on September 29, 2014, plaintiffs' filed their motion for leave to file the second amended complaint. [DE 39].
Throughout this litigation pro se plaintiffs' have sought to slow down the resolution of this matter by seeking extensions of time to respond to matters and filing numerous motions of questionable merit.
I. PLAINTIFFS' MOTION FOR LEAVE TO FILE MOTION TO STAY [DE 32].
Plaintiffs' motion for leave to file their motion to stay the case pending the outcome of their interlocutory appeal is unnecessary. However, as plaintiffs appear pro se, the Court presumes that they acted out of an abundance of caution in petitioning the Court for permission to file the motion to stay. Petitioners' motion for leave to file is granted. The Court now considers the motion to stay [DE 33].
II. PLAINTIFFS' MOTION TO STAY [DE 33].
Plaintiffs filed their notice of interlocutory appeal seeking "interlocutory review of the court's denial of hearing of qualified immunity." [DE 31 at 1]. Plaintiffs now seek to stay the case pending the resolution of that appeal. [DE 33 at 1]. Defendants oppose the stay. [DE 38].
Plaintiffs contend that Local Rules 18 and 21 (b) and Federal Rule of Civil Procedure 8 all authorize a stay of this matter. Further, they argue that the stay is requested in good faith and will maximize judicial economy. The Court disagrees. It is unclear to exactly which rules plaintiffs attempt to cite, but none of the rules they cite to in their motion are pertinent to the issue at hand. Further, plaintiffs seek to delay a ruling on a motion to dismiss that was filed on April 28, 2014. That motion to dismiss only argues qualified immunity as one of many reasons that this action should be dismissed and the Court can rule on the motion without addressing qualified immunity. Even if the Court were to use qualified immunity as a basis to dismiss the case, plaintiffs could appeal that ruling in the normal, non-interlocutory, fashion and would suffer no prejudice. In short, a delay of this matter at this stage in the proceedings to allow for the resolution of an interlocutory appeal on the issue of denial of a hearing on the question of qualified immunity would be an example of anything but judicial economy. There is simply nothing that justifies a stay of this case and plaintiffs' motion is denied. The Court now considers the motion to dismiss.
III. MOTION TO DISMISS [DE 13].
Defendants' move the Court to dismiss, or in the alternative, for summary judgment. Defendants first move to dismiss pursuant to FED. R. Civ. P. 12(b)(5) for insufficient service of process. [DE 14 at 10]. Defendants indicate that there is no proof that plaintiffs properly served the United States by serving the office of the United States Attorney for the Eastern District of North Carolina pursuant to Rule 4(i)(l)(A). Further, defendants indicate that they are unable to determine whether individual defendants Mike Huskey or Paula Nicholls were properly served pursuant to Rules 4(i)(2-4). On April 18, 2014, the Court sent notice to the pro se plaintiffs regarding failure to make proper service. [DE ...