United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION AND ORDER
DAVID S. CAYER, Magistrate Judge.
THIS MATTER is before the Court on Defendants' "Motion to Dismiss, " Doc. 11, and the parties' associated briefs and exhibits, Docs. 12, 14 and 15.
This matter was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and the Motion is ripe for determination.
I. FACTUAL AND PROCEDURAL BACKGROUND
Accepting the allegations of the Complaint, Doc. 1, as true, Plaintiff is a student at UNC-Charlotte. In the fall of 2012, she received a failing grade in Spanish. In January 2013, she contacted Defendant Allison Stedman, Associate Chair for the Department of Languages and Culture Studies, regarding an appeal of her grade. Plaintiff states that she was given the "run around" by Stedman and Professor Maria Delgadillo, and that they failed to protect her rights to appeal her grade. Plaintiff was placed on academic probation. On January 30, 2013, Plaintiff emailed Stedman and Delgadillo that she would be coming by their office to follow up on filing an appeal of her grade.
When Plaintiff arrived, she was "apprehended" by campus police for "communicating threats." Id. at ¶¶ 10-11. Plaintiff contends that the Defendants gave a fraudulent email to the campus police, resulting in her detention. Plaintiff suffered a panic attack on her way to the officers' car where she claims she was unlawfully searched. She was subsequently released. Plaintiff further claims that she was "stalked and harassed" by campus police who would "make up a reason to attack her." Id. at ¶¶ 14, 18 and 23.
Plaintiff's Complaint also alleges that Defendants "falsified a defamatory statement (via email) to several people (including university deans) that Plaintiff was a dangerous student' without a reasonable assumption or articulable fact(s)." Id. at ¶¶ 12-13; Ex 1. Plaintiff asserts that they did this with the expectation that she would be arrested, expelled from school and deprived of her federal student aid. Plaintiff's appeal of her grade was never heard and she had to repeat the class.
Plaintiff asserts that Defendants' false statements caused her to be accused of mental illness by faculty and staff. She contends that she has been unable to focus on her school work, communicate comfortably with others, or feel safe on campus. She claims that she has suffered severe mental anguish, emotional distress and has been "injured in the mind" as a result of Defendants' actions. Id. at ¶ 26.
Plaintiff filed her Complaint on January 29, 2015. She alleges twenty causes of action. Every claim asserted is either a tort, an element of a tort or a "tort" asserted by Plaintiff but not cognizable in law: Defamation and libel (First Cause of Action); Intentional Infliction of Mental Distress (Second Cause of Action); Negligent Infliction of Emotional Distress (Third Cause of Action); Assault (Fourth Cause of Action); Negligence (Fifth Cause of Action); Proximate Cause; Legal Cause (Sixth Cause of Action); Concurrent Cause (Seventh Cause of Action); Actionable Fraud (Eighth Cause of Action); Intention Infliction of Mental Distress (Ninth Cause of Action); Fraudulent Misrepresentation (Tenth Cause of Action); Outrageous, Extreme, and Intolerable Conduct (Eleventh Cause of Action); Gross Negligence (Twelfth Cause of Action); Ordinary Negligence (Thirteenth Cause of Action); Negligence per se (Fourteenth Cause of Action); Negligence as a matter of Law (Fifteenth Cause of Action); Actionable Negligence (Sixteenth Cause of Action); Actual Malice (Seventeenth Cause of Action); Proximate Cause (Eighteenth Cause of Action); Joint Tortfeasors (Nineteenth Cause of Action); and Punitive Damages (Twentieth Cause of Action). Plaintiff is seeking, among other things, damages in the amount of $18, 200, 000.00.
On February 23, 2015, Defendants filed their Motion to Dismiss. Doc. 11. Defendants argue that the Court lacks jurisdiction because they are protected by Eleventh Amendment immunity. Defendants also argue that there is neither federal question nor diversity jurisdiction present. The Motion to Dismiss has been briefed and is now ripe for review.
II. STANDARD OF REVIEW
The existence of federal subject matter jurisdiction is a threshold issue. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir.1999). "The subject matter jurisdiction of federal courts is limited and the federal courts may exercise only that jurisdiction which Congress has prescribed." Chris v. Tenet, 221 F.3d 648, 655 (4th Cir. 2000)(citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Subject matter jurisdiction is so limited that federal "[c]ourts have an independent obligation to determine whether subject matter jurisdiction exists, even when no party challenges it." Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (internal citations omitted). "No party can waive the defect, or consent to [subject matter] jurisdiction. No court can ignore the defect; rather a court, noticing the defect, must raise the matter on its own." Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 389 (1998) (internal citations omitted). "Thus, when a district court lacks subject matter jurisdiction over an action, the action must be dismissed." United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). A challenge to a court's subject matter jurisdiction may be raised at any time and is properly considered on a motion under Federal Rule of Civil Procedure 12(b)(1). See Fed.R.Civ.P. 12(b)(1) and 12(h). The burden of proving subject matter jurisdiction in response to a Rule 12(b)(1) motion rests with the plaintiff, the party asserting jurisdiction. See Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995).
The Court is mindful of the latitude extended to the pleadings of pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (courts should "[c]onstru[e] [a pro se] petitioner's inartful pleading liberally"). However, courts cannot act as the pro se plaintiff's advocate or develop claims which the plaintiff failed to raise clearly on the face of her complaint. Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (recognizing that district courts are not expected to assume the role of advocate for the pro se plaintiff). See also ...