United States District Court, M.D. North Carolina
BARBARA SUMMEY MARSHALL; MAYA VALRISSA LOUISE MARSHALL; and CLIFTON ROBERTO MARSHALL III, Plaintiffs,
AMERICAN BROADCASTING COMPANIES, INC.; FAMILY ENDEAVORS; HEATHER BLACK; NAT ROBERTSON, Mayor of the City of Fayetteville; EARL BUTLER, Sheriff of Cumberland County; LARISA WHITT; TRAVIS PEARSON; BARBARA SPIGNER; CRYSTAL SPIGNER WILLIAMS; ALLEN ROGERS; BILLY R. KING; LAREENA J. PHILLIPS, Assistant Attorney General of North Carolina; FAYETTEVILLE OBSERVER; JENNIFER T. HARROD, Special Deputy Attorney General of North Carolina; BLUE RIDGE LOG CABINS INC.; HONORABLE ROBERT A. MCDONALD, Veterans Affairs Department; ENDEMOL SHINE NORTH AMERICA; and DOES 1-50 Defendants.
MEMORANDUM OPINION AND ORDER
D. Schroeder United States District Judge.
appearing pro se, claim that a broad range of Defendants
harmed them in their operation of a shelter for homeless
female veterans and their children after the shelter became
the subject of a television “make-over” show.
Before the court are a host of motions. Plaintiffs have
submitted a “motion and petition for joining complaint
and amended to pleadings” (Doc. 43); a “Motion
and Petition for Amended Complaint Request to Serve
Defendants Added Since Original Complaint” (Doc. 68);
two motions for “joinder” (Docs. 46, 47); a
“Motion for Order of Protection” (Doc. 98); a
“Motion for Order of Protection and Request for
Hearing” (Doc. 101); and four motions for oral
argument/hearings (Docs. 71, 91, 92, and 98). Three women
(designated “Friends and Supporters”) have also
filed motions to submit amicus briefs on Plaintiffs'
behalf (although no proposed brief has been submitted).
(Docs. 93, 94, and 95.)
following Defendants have submitted motions to dismiss the
amended complaint (Doc. 41): Nat Robertson (Doc. 48); Earl
Butler (Doc. 51); Heather Black (Doc. 53); Jennifer T. Harrod
and Lareena J. Phillips (Doc. 56); Billy R. King and Allen W.
Rogers (Doc. 59); Family Endeavors, Travis Pearson, and
Larisa Whitt (Doc. 62); and the American Broadcasting Company
(“ABC”) (Doc. 73). Collectively, these Defendants
cite multiple fatal flaws in Plaintiffs' lawsuit.
ABC's motion to dismiss asserts, among other grounds,
that this court lacks subject matter jurisdiction over
Plaintiffs' claims. The other Defendants assert multiple
grounds for dismissal, including insufficiency of process and
service of process, improper venue, and failure to state a
claim. Plaintiffs have not directly responded to
Defendants' motions but have filed “motions to
dismiss” the Defendants' motions to dismiss (Doc.
85; Doc. 87), which the court will treat as responses to
reasons that follow, the court is compelled to conclude that
Plaintiffs' federal claims cannot proceed and, declining
to exercise jurisdiction over any purported State claims, the
court will dismiss the action without prejudice.
in the light most favorable to Plaintiffs, the operative
facts are as follows:
claim that in 2005, apparently in or around Fayetteville,
North Carolina, they opened their home to “homeless
women veterans and their children” and that, in 2011,
Defendant ABC approached them to consider their home for its
“Extreme Makeover show” through which ABC would
renovate the structure and feature it on television. (Doc. 41
at 2.) After the renovation was complete, however, the local
community “excessively criticized, scrutinized, and
villainized” them, as it “was unprepared and
unaccepting of a house of that magnitude being dedicated to
the honor of women veterans.” (Id. at 3.)
Plaintiffs claim that the local print media attacked them,
their organization, and their clients, and that they endured
“violent hatred, hostility, death threats, racial
discrimination, disability discrimination, jail time, ”
and other harms. (Id. at 3-4.) The amended complaint
mentions “emotional distress, ” physical and
financial harms, and various types of discrimination, and
requests damages, attorneys' fees, exemplary relief, and
equitable relief. (Id. at 10.) The amended
complaint's allegations of wrongdoing are highly
generalized and conclusory but appear to arise out of
Plaintiff Barbara Marshall's removal, legally and
physically, from her involvement with the shelter following
ABC argues primarily that the court lacks subject matter
jurisdiction over Plaintiffs' federal claims. The other
Defendants, as well, argue that Plaintiffs' allegations
are so lacking in substance as to deprive the court of
federal question jurisdiction and, in the alternative, fail
to contain sufficient factual matter to make them plausible.
Even though Defendants contend they have meritorious defenses
based on other grounds, such as improper venue and failure of
both process and proper service of process, they urge the
court to nevertheless dismiss the case on the merits
“[g]iven the numerous barriers to Plaintiffs
maintaining a successful case.” (See Doc. 57
plaintiff has the burden of proving that subject matter
jurisdiction exists.” Evans v. B.F. Perkins Co., a
Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th
Cir. 1999) (citing Richmond, Fredericksburg & Potomac
R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991)). “When a defendant challenges subject matter
jurisdiction pursuant to Rule 12(b)(1), ‘the district
court is to regard the pleadings as mere evidence on the
issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary
judgment.'” Id. (citing Richmond,
Fredericksburg & Potomac R. Co., 945 F.2d at 768).
“The district court should grant the Rule 12(b)(1)
motion to dismiss ‘only if the material jurisdictional
facts are not in dispute and the moving party is entitled to
prevail as a matter of law.'” Id. (citing
Richmond, Fredericksburg & Potomac R. Co., 945
F.2d at 768).
reviewing a pro se complaint, federal courts should examine
carefully the plaintiff's factual allegations, no matter
how inartfully pleaded, to determine whether they could
provide a basis for relief. In addition, in order to
determine whether the claim of a pro se plaintiff can
withstand a motion to dismiss, it is appropriate to look
beyond the face of the complaint to allegations made in any
additional materials filed by the plaintiff.”
Armstrong v. Rolm A. Siemans Co., 129 F.3d 1258 (4th
Cir. 1997) (citations omitted). However, the liberal
construction of a pro se plaintiff's pleading does not
require the court to ignore clear defects in pleading,
Bustos v. Chamberlain, No. 3:09- 1760-HMH-JRM, 2009
WL 2782238, at *2 (D.S.C. Aug. 27, 2009), or to
“conjure up questions never squarely presented in the
complaint, ” Brice v. Jenkins, 489 F.Supp.2d
538, 541 (E.D. Va. 2007) (internal quotation marks and
citation omitted). Nor does it require that the court become
an advocate for the unrepresented party. Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir.
claim that this court's jurisdiction over their claims
rests on the existence of a federal question, see 28
U.S.C. § 1331, invoking Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et
seq. (“Title VII”), the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et
seq. (“ADA”), the Fair Housing Amendments
Act of 1988, 42 U.S.C. § 3601 et seq.
(“FHAA”), and, for the first time in a response
brief (Doc. 78 at 9), the Notification and Federal Employee
Antidiscrimination and Retaliation Act, 5 U.S.C. § 2301
et seq. (the “No-FEAR Act”) (Doc. 41 at
4). Plaintiffs also invoke “the Diversity of
Citizenship” to support venue in this court.
federal question jurisdiction, the court does not lack
authority to act simply because a claim lacks merit or is
doubtful. But “[a] claim is too ‘insubstantial
and frivolous' to support federal question jurisdiction
when it is ‘obviously without merit.'”
Herero People's Reparations Corp. v. Deutsche Bank,
A.G., 370 F.3d 1192, 1194-95 (D.C. Cir. 2004) (quoting
Hagans v. Lavine, 415 U.S. 528, 538 (1974)). The
four federal statutes Plaintiffs invoke are largely
irrelevant to the harms they allege and clearly provide them
no relief. The court will address each in turn.
VII of the Civil Rights Act of 1964 protects employees from
certain types of discrimination in employment and prohibits
an employer from “discharg[ing] any individual, or
otherwise . . . discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges
of employment” based on a protected characteristic.
Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190
(4th Cir. 2010) (citing 42 U.S.C. § 2000e-2(a)),
aff'd sub nom. Coleman v. Ct. of Appeals of Md.,
566 U.S. 30 (2012). Plaintiffs do not allege that any
Defendant employed them (see generally Doc. 41 at
5-10), so Title VII does not apply to their claims.
Furthermore, Plaintiffs do not allege that they have sought
relief from the Equal Employment Opportunity Commission - a
prerequisite to filing a Title VII lawsuit in federal court,
and “federal ...