United States District Court, E.D. North Carolina, Western Division
EARL BRITT SENIOR U.S. DISTRICT JUDGE
matter is before the court on defendant's motion to
dismiss plaintiff's claims pursuant to Federal Rule of
Civil Procedure 12(b)(1). (DE # 27.) Although the Clerk
notified plaintiff, who is now proceeding pro se, of
her obligation to respond to the motion, (DE # 36), plaintiff
has not filed any response to the motion, and the time within
which to do so has expired.
of background, on 25 April 2016, plaintiff filed pro
se an application to proceed without prepaying fees or
costs along with her complaint. On 30 December 2016, U.S.
Magistrate Judge Kimberly A. Swank granted plaintiff's
application and reviewed plaintiff's complaint pursuant
to 28 U.S.C. § 1915(e)(2). (DE # 5.) Subsequently, and
without objection from plaintiff, the court adopted Judge
Swank's recommendation and dismissed a number of
plaintiff's claims and the individual defendants. (DE #
10.) Plaintiff's race and age discrimination claims under
of the Civil Rights Act of 1964 and the Age Discrimination in
Employment Act against the corporate defendant remained.
then entered an appearance on behalf of plaintiff, (DE #17),
and a scheduling order issued, (DE # 19). On 25 August 2017,
defendant filed the instant motion to dismiss. Shortly before
plaintiff's response to the motion was due, her counsel
filed a motion to withdraw on the ground that plaintiff's
filing of bankruptcy prevented her from paying counsel's
fees and costs under the terms of their agreement. (DE # 33.)
The Clerk allowed the motion to withdraw and allowed
plaintiff until 13 October 2017 to respond to defendant's
motion to dismiss. (DE # 35.) As noted previously, the Clerk
issued plaintiff notice of her obligation to respond to
defendant's motion, yet plaintiff has failed to do so.
contends that plaintiff lacks standing to pursue her claims
based on her having filed a bankruptcy petition after
commencement of this action, and therefore her claims should
be dismissed for lack of subject matter jurisdiction under
The party invoking the court's jurisdiction typically
bears the burden of proving the existence of federal subject
matter jurisdiction. See Ellenburg v. Spartan Motors
Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008). The
court's review of subject matter jurisdiction is
generally based on the allegations in the complaint, taken as
true, but the court may in certain circumstances resolve
factual disputes. See Kerns v. United States, 585
F.3d 187, 193 (4th Cir. 2009) (“[W]hen a defendant
asserts that the complaint fails to allege sufficient facts
to support subject matter jurisdiction, the trial court must
apply a standard patterned on Rule 12(b)(6) and assume the
truthfulness of the facts alleged. On the other hand, when
the defendant challenges the veracity of the facts
underpinning subject matter jurisdiction, the trial court may
go beyond the complaint, conduct evidentiary proceedings, and
resolve the disputed jurisdictional facts. And when the
jurisdictional facts are inextricably intertwined with those
central to the merits, the court should resolve the relevant
factual disputes only after appropriate discovery, unless the
jurisdictional allegations are clearly immaterial or wholly
unsubstantial and frivolous.”). Here, because
resolution of Defendants' Motion to Dismiss for Lack of
Subject Matter Jurisdiction does not turn on factual
disputes, the Court will accept as true the factual
allegations in the Complaint.
Labgold v. Regenhardt, 573 B.R. 645, 648-49 (E.D.
Va. 2017) (alteration in original). The court also takes
judicial notice of records filed in plaintiff's
bankruptcy proceeding. See Wilson v. Dollar Gen.
Corp., No. 4:11-CV-00024, 2012 WL 707068, at *4 (W.D.
Va. Mar. 5, 2012), aff'd, 717 F.3d 337 (4th Cir.
2013) (“[I]n considering a motion pursuant to Rule
12(b), the Court may take judicial notice of ‘items in
the public record.' Therefore, the Court may take
judicial notice of records filed in bankruptcy
proceedings.” (citations omitted)).
The filing of a bankruptcy petition creates a bankruptcy
estate. The bankruptcy estate is comprised of a broad range
of both tangible and intangible property interests. Such
property interests include non-bankruptcy causes of action
that arose out of events occurring prior to the filing of the
bankruptcy petition. While the bankruptcy code is silent as
to the debtor's capacity to maintain these non-bankruptcy
causes of action, the bankruptcy trustee, as representative
of the estate, generally “has capacity to sue and be
sued.” As a result, in the Chapter 7 bankruptcy context
. . ., “[i]f a cause of action is part of the estate of
the bankrupt then the trustee alone has standing to bring
Wilson v. Dollar Gen. Corp., 717 F.3d 337, 342 (4th
Cir. 2013) (citations omitted).
on 22 May 2017, plaintiff filed a voluntary petition in
bankruptcy under Chapter 7. (Def.'s Mem., Ex. A, DE #
28-1.) At that time, she did not disclose to the bankruptcy
court the existence of her claims pending in this court.
(See id.) However, on 11 August 2017, she amended
the appropriate forms and disclosed the claims and the action
pending here. (Def.'s Mem., Ex. D, DE # 28-4.)
Plaintiff's employment discrimination claims, which arose
pre-petition, are now the property of the bankruptcy estate
and, as such, can only be prosecuted by the bankruptcy
trustee. Neither plaintiff nor the trustee himself, who has
been aware of plaintiff's claims since at least August
2017 when she amended her bankruptcy filings, has sought
substitution of the real party in interest. Under the
circumstances, dismissal for lack of standing is appropriate.
See Miller v. Pac. Shore Funding, 287 B.R. 47, 51-52
(D. Md. 2002), aff'd, 92 F. App'x 933 (4th
motion to dismiss is ALLOWED, and this case is DISMISSED
WITHOUT PREJUDICE. Defendant's motion to extend the
dispositive motion deadline, (DE # 37), is DENIED as moot.
The Clerk is DIRECTED to close this case and serve a copy of
this order on ...