United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter is before the court regarding defendant's motion
to dismiss for lack of jurisdiction and for failure to state
a claim (DE 14). Plaintiff has not responded and the time for
response has expired. In this posture, the issues raised are
ripe for ruling. For the following reasons, defendant's
motion is granted.
commenced this action pro se on August 9, 2017, asserting
that her residential mortgage loan “is or was at any
time serviced by” defendant. (Compl. (DE 1) at 1).
Plaintiff claims that defendant violated federal law,
including the Real Estate Settlement Procedures Act, 12
U.S.C. §§ 2601, et seq. (“RESPA”) and
the Fair Debt Collection Practices Act, 15 U.SC. §§
1692 et seq. (“FDCPA”), as well as state and
common law, in connection with its servicing of
plaintiff's mortgage loan. Plaintiff asserts that the
amount in controversy exceeds $5, 000, 000.00, and she
asserts unspecified injury. Plaintiff attaches voluminous
documentation exceeding 550 pages in length that she asserts
is part of the complaint.
plaintiff's motion for extension of time to make service,
the court on January 11, 2018, allowed plaintiff to make
service on or before February 13, 2018. Plaintiff filed on
January 25, 2018, documentation regarding service relating
back to August 9, 2017, as proof of service in this case. Six
days later, on January 31, 2018, a document styled as a
motion to dismiss was filed by an attorney identified as
Aaron B. Anderson, purporting to represent defendant in
accordance with a “Limited Special Appearance.”
(Mot. to Dismiss (DE 9) at 1). On February 7, 2018, the court
noted deficiency in the form of the motion and deficiency in
appearance by counsel and filing method. The court held in
abeyance time for response to that motion to dismiss and
directed counsel for defendant to cure deficiencies as noted
in the order.
February 20, 2018, counsel entered a notice of appearance on
behalf of defendant and filed the instant motion to dismiss.
Defendant seeks dismissal of the complaint for insufficient
process; insufficient service of process; lack of personal
jurisdiction; failure to state a claim; and lack of subject
matter jurisdiction,  under Federal Rules of Civil Procedure
8(a)(2), 12(b). In support of the instant motion, defendant
relies upon a memorandum in support, with attachments
including a North Carolina Secretary of State printout; an
appointment of substitute trustee; and an order to allow
later, on February 21, 2018, Aaron B. Anderson filed a
“notice of no representation” in response to the
court's order. On February 26, 2018, referencing the
instant motion to dismiss filed February 20, 2018, the clerk
issued a letter to plaintiff providing notice of the filing
of the instant motion to dismiss and the time period for
response thereto by March 16, 2018. On the same date, the
court entered a text order allowing Aaron B. Anderson to
withdraw, and, noting the instant “new motion, ”
the court observed that “the clerk properly has noticed
plaintiff, proceeding pro se, of the response deadline to
that motion.” (Feb. 26, 2018, Text Order).
Standard of Review
permits dismissal of a complaint for “lack of
subject-matter jurisdiction, ” “lack of personal
jurisdiction, ” “insufficient process, ”
“insufficient service of process, ” and
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b). To state a claim for
relief, a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a).
survive a motion to dismiss” under Rule 12(b)(6),
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. In evaluating whether a claim is stated,
“[the] court accepts all well-pled facts as true and
construes these facts in the light most favorable to the
plaintiff, ” but does not consider “legal
conclusions, elements of a cause of action, . . . bare
assertions devoid of further factual enhancement[, ] . . .
unwarranted inferences, unreasonable conclusions, or
arguments.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009) (citations omitted).
Service of Process
service is waived, proof of service must be made to the
court.” Fed.R.Civ.P. 4(l). “If a
defendant is not served within 90 days after the complaint is
filed, the court - on motion or on its own after notice to
the plaintiff - must dismiss the action without prejudice
against that defendant or order that service be made within a
specified time.” Fed.R.Civ.P. 4(m). A corporation,
partnership, or ...