United States District Court, E.D. North Carolina, Southern Division
Earl Britt Senior U.S. District Judge
matter is before the court on defendants City of Wilmington
(the “City”), City of Wilmington Collections
Department, Mayor Bill Saffo, and City Manager Sterling
Cheatham's motion to dismiss. (DE # 18.) Plaintiff filed
a response, (DE # 19), to which defendants filed a reply, (DE
# 20). This matter is ripe for disposition.
August 2015, plaintiff Denise Fowler's neighbor, who has
been in an on-going dispute with plaintiff, (Am. Compl., DE #
17 ¶ 11), made a complaint to the Wilmington Police
Department, (id. ¶ 12), claiming plaintiff
“had sounded her automobile horn for a reason other
than a warning or danger signal, ” (id.
¶13). A member of the Wilmington Police Department
issued plaintiff a “Civil Citation Noise
Violation.” (Id. ¶ 14.) The officer was
not present to witness the horn blast. (Id. ¶
15.) The citation was for a violation of Wilmington City Code
§ 6-29, (id. ¶ 16), and stated that the
penalty must be paid within ten days of the citation and
“‘the city may seek to recover the penalty by
filing a civil action in the nature of debt,
'” (id. ¶ 17 (quoting Ex. 2-A,
DE # 17-3)). Plaintiff went to the city collection department
to request information on how to appeal the citation,
(id. ¶ 18), but “was told there was no
appeal provision, ” (id. ¶ 19). Plaintiff
was also told that if she failed to pay, the City would
obtain a judgment against her requiring her to pay the
penalty as well as other costs associated with the action.
(Id. ¶ 21.) Plaintiff subsequently received two
bills from the City, one in September 2015 and one in
December 2015, informing her she owed $250.00. (Id.
¶¶ 24-25.) Plaintiff, fearful that a lawsuit would
negatively affect her credit or have other “lasting
effects on her good name, ” (id. ¶ 27),
remitted $250.00 to the City, (id. ¶ 29).
Plaintiff asserts a violation of her due process rights under
the United States and North Carolina Constitutions and seeks
the recovery of nominal, compensatory, and punitive damages.
(Id. at 5 ¶¶ 2-4.)
12(b)(6) allows a claim to be dismissed if the plaintiff
fails to “state a claim upon which relief can be
granted[.]” Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) is
meant to test the sufficiency of a complaint rather than
resolving any disagreements “surrounding the facts, the
merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992). In considering a 12(b)(6) motion,
“[the court] accept[s] as true all well-pleaded
allegations and view[s] the complaint in the light most
favorable to the plaintiff.” Sec'y of State for
Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705
(4th Cir. 2007) (citation omitted).
contend that the City of Wilmington Collections Department is
not a legal entity and cannot be sued. (Defs.' Mem. Supp.
Mot. Dismiss, DE # 19, at 3.) The capacity to be sued is
determined “by the law of the state where the court is
located . . . .” Fed.R.Civ.P. 17(b)(3). North Carolina
courts have held that “component parts” of a city
“lack the capacity to be sued.” Jones v. City
of Greensboro, 277 S.E.2d 562, 576 ( N.C. Ct. App.
1981), overruled on grounds by Fowler v. Valencourt,
435 S.E.2d 530 ( N.C. 1993). Plaintiff's own allegations
recognize that the City of Wilmington Collections Department
is “a subdivision of the City of Wilmington . . .,
” (Am. Compl., DE # 17, ¶ 3), and plaintiff does
not respond to defendants' argument. The court agrees
that because it is does not have the capacity to be sued, the
City of Wilmington Collections Department should be dismissed
from the case.
further contend Mayor Bill Saffo and City Manager Sterling
Cheatham should be dismissed from the case because plaintiff
has made no allegations against either party. (Defs.'
Mem. Supp. Mot. Dismiss, DE # 19, at 3-4.) Plaintiff does not
respond to this argument. The court agrees that both Mayor
Bill Saffo and City Manager Sterling Cheatham, who are sued
only in their official capacities, should be dismissed from
the case because plaintiff states no claim against them
separate and apart from her claims against the City. See
J.S. ex rel. Duck v. Isle of Wight Cty. Sch. Bd., 368
F.Supp.2d 522, 527 (E.D. Va. 2005) (“A § 1983
lawsuit brought against an individual in his official
capacity is  duplicative of a claim brought against the
municipality.” (citations omitted)); Moore v. City
of Creedmoor, 481 S.E.2d 14, 21 ( N.C. 1997)
(“[W]here the governmental entity may be held liable
for damages resulting from its official policy, a suit naming
public officers in their official capacity is
redundant.” (citing Kentucky v. Graham, 473
U.S. 159, 166 (1985)).
the City, plaintiff asserts she has been denied procedural
due process as guaranteed by the United States Constitution
and the North Carolina Constitution. “North Carolina
courts have consistently interpreted the due process . . .
clause of the North Carolina Constitution as synonymous
with [its] Fourteenth Amendment Counterpart.” Tri
Cty. Paving, Inc. v. Ashe Cty., 281 F.3d 430,
435 n.6 (4th Cir. 2002) (citations omitted). The United
States Constitution provides that the state shall not
“deprive any person of life, liberty, or property,
without due process of law . . . .” U.S. Const. amend.
At bottom, procedural due process requires fair notice of
impending state action and an opportunity to be heard. Notice
and the hearing are two distinct features of due process, and
are thus governed by different standards. Proper notice is
“an elementary and fundamental requirement of due
process, ” and must be reasonably calculated to convey
information concerning a deprivation.
Snider Int'l Corp. v. Town of Forest Heights,
Md., 739 F.3d 140, 146 (4th Cir. 2014) (citations
the parties' briefs primarily concentrate on the
“opportunity to be heard” aspect of due process,
(DE # 19; DE # 20.), the court believes the focus should be
directed at whether the content of the notice provided to
plaintiff was adequate to inform her of the opportunity to be
heard. In determining the sufficiency of notice,
“notice satisfies due process where it either 1)
‘is in itself reasonably certain to inform those
affected' or 2) ‘where conditions do not reasonably
permit such notice, . . . the form chosen is not
substantially less likely to bring home notice than other of
the feasible and customary substitutes.'”
Snider, 739 F.3d at 146 (quoting Mullane v.
Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950)).
It is not necessary that the notice be actual, id.,
but the “timing, content of the notice and the form of
the hearing will depend upon a proper balancing of the
competing interests involved, ” Garraghty v.
Jordan, 830 F.2d 1295, 1300 (4th Cir. 1987) (citing
Goss v. Lopez, 419 U.S. 565, 579 (1975)); see
also Mallette v. Arlington Cty. Emps.' Supplemental Ret.
Sys. II, 91 F.3d 630, 640 (4th Cir. 1996) (“[D]ue
process has no fixed content; it is ‘flexible and calls
for such procedural protections as the particular situation
demands.'” (quoting Morrissey v. Brewer,
408 U.S. 471, 481 (1972))). “[W]hen notice is a
person's due, process which is a mere gesture is not due
process.” Mullane, 339 U.S. at 315.
present case, notice of the opportunity to be heard was
presented to plaintiff in one sentence at the bottom of the
citation which duplicates the enforcement section of the
Wilmington City Code. (Am. Compl., Ex. 1, DE # 17-1.) The
sentence reads; “This penalty must be paid within ten
(10) days after being cited for a violation, [sic] the city
may seek to recover the penalty by filing a civil action in
the nature of debt.” (Id.). See also
Wilmington, N.C., Code of Ordinances § 6-1(b)(4) (2017).
The content of this notice arguably is ambiguous and vague
and not “reasonably certain to inform those
affected.” Snider, 739 F.3d at 146.
Plaintiff's amended complaint makes clear that it was not