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Askew v. Seterus, Inc.

United States District Court, E.D. North Carolina, Northern Division

May 31, 2018

WILLIAM L. ASKEW, SR. and TOORA B. ASKEW, Plaintiffs,
v.
SETERUS, INC., Defendant.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendant's motion to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. (DE 8). The motion has been fully briefed, and in this posture the issues raised are ripe for ruling. For the reasons that follow, defendant's motion is granted.

         BACKGROUND

         Plaintiffs, proceeding pro se, filed this action on February 21, 2018, asserting claims against defendant relating to a state court foreclosure proceeding in Pasquotank County, North Carolina. Specifically, plaintiffs assert the following claims: 1) mail fraud, in violation of 18 U.S.C. § 1341; 2) violation of 18 U.S.C. § 2071, 3) violation of 18 U.S.C. § 1962, and 4) violation of the Uniform Commercial Code. Plaintiffs allege that on January 13, 2015, defendant “illegally seized personal and real property located at 703 Bunnell Ave., Elizabeth City[, North Carolina].” (DE 1, p. 4). In connection with that seizure, plaintiffs assert that defendant altered papers and forms, which it mailed to plaintiffs through the United States Postal Service. Plaintiffs request damages equal to the total value of their personal and real property, trebled.

         Plaintiffs initiated prior action asserting claims arising out of and concerning the same 2015 foreclosure in this court on March 25, 2016. See Askew, et al. v. Seterus, Inc., No. 5:16-CV-00013-FL (“Askew I”). In Askew I, defendant moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. The court dismissed plaintiffs' claims on the basis that it lacked jurisdiction over any claim relating to the state court final judgment of foreclosure, and that any claims unrelated to that judgment failed to state a plausible claim for relief. (Askew I, DE 20, p. 5-6). After the court dismissed plaintiffs' claims in that action, plaintiffs filed a motion to set aside judgment, wherein plaintiffs asserted violations of the federal criminal mail fraud statute and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (“RICO”). By text order dated November 22, 2016, the court denied plaintiffs' motion. On November 28, 2016, plaintiffs filed a document, entitled “Complaint, ” wherein plaintiffs reasserted their allegations of mail fraud and violations of RICO. The court construed the filing as a motion for reconsideration, which it denied by text order dated November 8, 2017.

         In this case, standing as Askew II, defendant filed the instant motion to dismiss, together with a memorandum in support thereof on March 28, 2018. On April 16, 2018, plaintiffs filed response in opposition.[1] Defendant filed reply on April 24, 2018, and plaintiff filed a sur-reply on May 4, 2018, together with “supporting evidence.” (See DE 19-1).[2]

         Defendant contends that this court lacks subject matter jurisdiction over plaintiffs' claims by operation of res judicatata and the Rooker-Feldman doctrine. In the alternative, defendant argues plaintiffs' claims are legally and factually insufficient and do not state a claim upon which relief can be granted. Plaintiffs maintain that the court has jurisdiction over the instant matter.

         STATEMENT OF FACTS

         The facts alleged in plaintiffs' complaint may be summarized as follows. Plaintiffs allege that defendant “repeatedly mailed, presented and filed altered . . “ in connection with a 2015 state foreclosure proceeding in Pasquotank County, North Carolina. Plaintiffs assert that “on Jan[uary] 13, 2015, [defendant] illegally seized personal and real property located at 703 Bunnell Ave[nue], Elizabeth City, [ North Carolina]. All correspondence was done using the USPS. All papers and forms used in th[e] seizure were altered.” (DE 1, p. 4). Specifically, plaintiffs assert that defendants altered the note and transfer and assignment document. (Id. at 7).

         DISCUSSION

         A. Standard of Review

         1. Rule 12(b)(1)

         To survive a Rule 12(b)(1) motion, the plaintiff bears the burden of showing that subject matter jurisdiction is appropriate. See McNutt v. Gen. Motors Acceptance Corp. of Ind., Inc., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Such a motion may attack the existence of subject matter jurisdiction in fact, apart from the complaint. Adams, 697 F.2d at 1219. In that instance, “the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The standard of review, however, is the same as with a motion for summary judgment. Thus, “the nonmoving party must set forth specific facts beyond the ...


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