United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION AND ORDER
S. CAYER UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendant Federal
Trade Commission's “Motion to Dismiss”
(document #8), pro se Plaintiff's filings
captioned “Notice of Remover” and
“Amendment Notice of Remover” which have been
docketed as “Motion to Remand” (document #12) and
“Amended Motion to Remand” (document #14), and
the parties' briefs and exhibits.
matter has been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and these Motions are
now ripe for the Court's consideration.
fully considered the arguments, the record, and the
applicable authority, the undersigned respectfully recommends
that Defendant's Motion to Dismiss be granted
and Plaintiff's Motions to Remand be denied, as
FACTUAL AND PROCEDURAL BACKGROUND
9, 2016, Plaintiff instituted this action by filing a
document captioned “Secirity [sic] Agreement Complaint
RULE 12 MOTION in Lieu Answer: Discovery Scheduling Order;
Notice; More Definite Statement” in Mecklenburg County
District Court, naming the “Fedaral Trade Commion
[sic], DME-Direct/Viscoped S Insole and Paul Cox” as
Defendants. Plaintiff subsequently filed multiple documents
purporting to be amended pleadings, some with a summons, and
several certificates of service. The record does not reflect
which documents were served on the identified recipients.
There is no indication in the record that any Defendant has
been properly served.
underlying dispute appears to arise out of Plaintiff's
former business relationship with the non-federal Defendants,
and their efforts to obtain a patent and/or other
intellectual property rights related to the development of
some type of footwear. In different documents, Plaintiff
seeks ten billion or nineteen billion dollars in damages.
not clear what, if any, causes of action Plaintiff is
attempting to allege against Defendant Federal Trade
Commission (“FTC”). Plaintiff submitted a letter
from the FTC's Consumer Response Center
(“CRC”) dated October 28, 2015 along with one of
his filings. The CRC thanked Plaintiff for contacting the
FTC, provided a brief explanation of the FTC's
Congressional mandate to protect consumers from fraudulent,
deceptive and unfair business practices, and advised that the
FTC “is not able to intervene in individual
disputes.” (Document #8-5 p. 2). The CRC advised that
the information it received from Plaintiff had been recorded
in its secure online database, and gave him a list of
resources for consumers. Id.
12, 2017, Defendant FTC removed the state case to the United
States District Court for the Western District of North
19, 2017, Defendant FTC moved to dismiss on the grounds that
the Complaint fails to state a claim upon which relief can be
response, on July 5 and 17, 2017, respectively, Plaintiff
filed a “Motion to Remand” (document #12) and
“Amended Motion to Remand” (document #14).
Plaintiff's Motions do not state a basis for challenging
removal. It is well settled that district courts have
original jurisdiction over suits against the United States
and its agencies, 28 U.S.C. §§ 1441(a) and
1442(a)(1). Moreover, Plaintiff's Motion to Remand is
untimely. 28 U.S.C. § 1447(c). (motion to remand must be
filed within thirty days of filing of notice of removal).
Accordingly, the undersigned respectfully recommends that
Plaintiff's Motions to Remand be denied.
Defendant's Motion to Dismiss is ripe for determination.
reviewing a Rule 12(b)(6) motion, “the court should
accept as true all well-pleaded allegations and should view
the complaint in a light most favorable to the
plaintiff.” Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). The plaintiff's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Id. at 563. A
complaint attacked by a Rule 12(b)(6) motion to dismiss will
survive if it contains enough facts to “state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, the Supreme Court articulated a two-step
process for determining whether a complaint meets this
plausibility standard. First, the court identifies
allegations that, because they are no more than conclusions,
are not entitled to the assumption of truth. Id.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555) (allegation that government officials adopted
challenged policy “because of” its adverse
effects on protected group was conclusory and not assumed to
be true). Although the pleading requirements stated in
“Rule 8 [of the Federal Rules of Civil Procedure]
mark a notable and generous ...