United States District Court, E.D. North Carolina, Northern Division
WILLIAM L. ASKEW, SR. and TOORA B. ASKEW, Plaintiffs,
SETERUS, INC., Defendant.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
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.
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.
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.
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. 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).
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.
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
Standard of Review
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 ...