United States District Court, M.D. North Carolina
FELIX ALIKSA, individually, and as administrator of the estate of Ersila M. Aliksa, Plaintiff,
NORTH CAROLINA RAILROAD CO., CSX TRANSPORTATION, INC., CSX CORPORATION, NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a AMTRAK, MOORE COUNTY NORTH CAROLINA, and MOORE COUNTY, NORTH CAROLINA PLANNING & TRANSPORTATION DEPARTMENT, Defendants.
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., DISTRICT JUDGE.
before this court is a Motion to Dismiss for Lack of
Jurisdiction filed by Defendants Moore County, North Carolina
and Moore County, North Carolina Planning and Transportation
Department, (collectively the “Moore County
Defendants”), (Doc. 25), which Moore County Defendants
filed a supportive brief thereof, (Doc. 26). Also before this
court is a Motion to Dismiss for Failure to State a Claim
filed by Moore County Defendants, (Doc. 27), which Moore
County Defendants filed a supportive brief thereof, (Doc.
28). Plaintiff Felix Aliksa (“Plaintiff”) filed a
response in opposition to both motions, (Doc. 29), and Moore
County Defendants replied, (Doc. 30). For the reasons stated
herein, this court will grant the Motion to Dismiss for Lack
of Jurisdiction and deny as moot the Motion to Dismiss for
Failure to State a Claim.
allegations of the complaint, viewed in the light most
favorable to Plaintiff, the nonmoving party, are as follows:
December 3, 2015, Ersila M. Aliksa (“Decedent”)
was traveling westbound on Pinebluff Lake Road in Moore
County, North Carolina, toward United States Department of
Transportation Crossing No. 630807X (“the Pinebluff
Lake Road Crossing”). (Complaint (“Compl.”)
(Doc. 3) ¶¶ 1, 21-22.) At the same time, an Amtrak
train was headed northbound towards the same crossing.
(Id. ¶ 22.) Tall rail cars were parked on both
sides of the crossing, on a second set of tracks.
(Id.) Plaintiff's view of the crossing was
allegedly obstructed by said tall rail cars and by trees
surrounding the Pinebluff Lake Road Crossing. (Id.
¶¶ 21-22.) Additionally, the tall rail cars
allegedly caused safety features of the crossing to
malfunction, such that “the crossing gates failed to
fully close to stop vehicular traffic upon a train's
approach” and “failed to provide the functions
and warning for which it was designed, and as such, provided
inadequate warning of an approaching train.”
(Id. ¶ 21.)
Decedent traversed the crossing, her car was struck on the
driver's side by an Amtrak train. (Id. ¶
22.) Upon impact, Decedent's car was crushed between the
train and the tall rail cars, causing her death.
(Id.) Plaintiff, as administrator of Decedent's
estate, raises tort claims against Moore County Defendants
under North Carolina law. (Id. ¶¶ 1-3,
County Defendants' Motion to Dismiss for Lack of
Jurisdiction asserts governmental immunity against
Plaintiff's North Carolina tort claims and invokes both
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2) as a
basis for dismissal. (Doc. 25.) In cases where state
sovereign or governmental immunity is asserted, “[a]
motion to dismiss based on sovereign immunity is a
jurisdictional issue.” Simmons v. Corizon Health,
Inc., 122 F.Supp.3d 255, 268 (M.D. N.C. 2015) (citing
M. Series Rebuild, LLC v. Town of Mount Pleasant,
Inc., 222 N.C.App. 59, 63, 730 S.E.2d 254, 257 (2012)).
When a state supreme court “has spoken neither directly
nor indirectly on the particular issue” at hand, a
federal court must “predict how [the state supreme]
court would rule if presented with the issue.” See
Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage
Co., 433 F.3d 365, 369 (4th Cir. 2005) (citation
omitted). While undecided by the Supreme Court of North
Carolina, the North Carolina Court of Appeals has stated that
“the general rule is that sovereign immunity presents a
question of personal jurisdiction, not subject matter
jurisdiction.” Green v. Kearney, 203 N.C.App.
260, 265, 690 S.E.2d 755, 760 (2010); see also Meherrin
Indian Tribe v. Lewis, 197 N.C.App. 380, 384, 677 S.E.2d
203, 207 (2009) (“An appeal of a motion to dismiss
based on sovereign immunity presents a question of personal
jurisdiction rather than subject matter
jurisdiction.”). Accordingly, this court will consider
Moore County Defendants' Motion to Dismiss for Lack of
Jurisdiction under Federal Rule of Civil Procedure 12(b)(2).
bear the burden of establishing personal jurisdiction by a
preponderance of the evidence. See Universal Leather, LLC
v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014).
“When, however, as here, a district court decides a
pretrial personal jurisdiction motion without conducting an
evidentiary hearing, the plaintiff need only make a prima
facie showing of personal jurisdiction.” Carefirst
of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334
F.3d 390, 396 (4th Cir. 2003). The court may consider
supporting affidavits when determining whether a plaintiff
has made a prima facie showing of personal jurisdiction.
See Universal Leather, 773 F.3d at 558. “In
deciding whether the plaintiff has proved a prima facie case
of personal jurisdiction, the district court must draw all
reasonable inferences arising from the proof, and resolve all
factual disputes, in the plaintiff's favor.”
Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th
Cir. 1993); see also Carefirst of Md., Inc., 334
F.3d at 396.
the existence of jurisdiction turns on disputed factual
questions, the court may resolve the challenge on the basis
of an evidentiary hearing or, when a prima facie
demonstration of personal jurisdiction has been made, it can
proceed ‘as if it has personal jurisdiction over th[e]
matter, although factual determinations to the contrary may
be made at trial.'” Simmons, 122 F.Supp.3d
at 269 (quoting Pinpoint IT Servs., L.L.C. v. Atlas IT
Exp. Corp., 812 F.Supp.2d 710, 717 (E.D. Va. 2011)). A
plaintiff must, either at an evidentiary hearing or trial,
eventually prove the existence of personal jurisdiction by a
preponderance of the evidence. New Wellington Fin. Corp.
v. Flagship Resort Dev. Corp, 416 F.3d 290, 294 n.5 (4th
County Defendants first argue that Plaintiff's state tort
claims should be dismissed for lack of jurisdiction by virtue
of sovereign immunity. (Defs.' Reply in Supp. of Mots. to
Dismiss (Doc. 30) at 9.) In the alternative, Moore County
Defendants argue that Plaintiff's claims should be
dismissed for failure to state a claim. (Id.)
Because this court concludes that Plaintiff's claims
against Moore County Defendants should be dismissed for lack
of jurisdiction as a result of governmental immunity, this
court will not reach the motion to dismiss for failure to
state a claim.
this State it is well established that counties are a part of
the State government, and thus are entitled to sovereign
immunity.” Helsius v. Robertson, 174 N.C.App.
507, 509, 621 S.E.2d 263, 265 (2005) (citing Dawes v.
Nash Cty., 357 N.C. 442, 445, 584 S.E.2d 760, 762,
reh'g denied, 357 N.C. 511, 587 S.E.2d 417
(2003)). “Under the doctrine of governmental immunity,
a county or municipal corporation ‘is immune from suit
for the negligence of its employees in the exercise of
governmental functions absent waiver of immunity.'”
Estate of Williams ex rel. Overton v. Pasquotank Cty.
Parks & Recreation Dep't, 366 N.C. 195, 198, 732
S.E.2d 137, 140 (2012) (citations omitted).
“Governmental immunity covers only the acts of
a municipality or a municipal corporation committed pursuant
to its governmental functions.” Id. at 199,
732 S.E.2d at 141 (citation omitted). When a municipality
“engages in a proprietary function, ”
governmental immunity does not apply. Id. Moore
County Defendants contend, and Plaintiff does not contest,
that the factual allegations underlying Plaintiff's
Complaint constitute the exercise of governmental functions
and not proprietary functions. (Defs.' Mem. of Law in
Supp. of Mot. to Dismiss for Lack of Jurisdiction
(“Defs.' Mem.”) (Doc. 26) at 7-11; Pl.'s
Mem. of Law in Opp'n (“Pl.'s Resp.”)
(Doc. 29) at 11-12.)
governmental immunity applies, a county may not be sued
unless (a) a statute authorizes such a suit or (b) it has
consented to suit or waived its immunity. Helsius,
174 N.C.App. at 509, 621 S.E.2d at 265-66; Archer v.
Rockingham Cty., 144 N.C.App. 550, 554 & n.1, 548
S.E.2d 788, 791 (2001). Plaintiff contends that Moore County
Defendants are amenable to suit in this case because (a) the
county has a duty to abate public safety hazards under N.C.
Gen. Stat. § 153A-140; (b) the county has waived
immunity through its purchase of liability insurance and/or
its participation in a risk pool; (c) the county has waived
immunity by purchasing a bond; and (d) the county has waived
immunity by settling similar actions or claims. (Pl.'s
Resp. (Doc. 29) at 11-12.) This court takes up each of
Plaintiff's arguments in turn.
N.C. Gen. Stat. § 153A-140
first contends that N.C. Gen. Stat. § 153A-140 imposes a
duty on the county to abate public safety hazards and because
“governmental immunity does not apply where a duty is
imposed on the government by statute[, ]” suit is
authorized against Moore County Defendants. (See
Pl.'s Resp. (Doc. 29) at 11-12.) In support of this
assertion, Plaintiff points to a quote included in Moore
County Defendants' brief from Colombo v.
Dorrity, 115 N.C.App. 81, 84, 443 S.E.2d 752, 755
(1994), which states in relevant part “[u]nless a right
of action is given by statute, municipal corporations may not
be held civilly liable for neglecting to perform or
negligence in performing duties which are governmental in
nature.” (Pl.'s Resp. (Doc. 29) at 12.)
Plaintiff's argument, however, conflates two distinct
principles. The first is that, as acknowledged by the
excerpted quote from Colombo, a statute may
expressly waive sovereign immunity and permit suit against
the State and its political subdivisions. See, e.g.,
N.C. Ins. Guar. Ass'n v. Bd. of Trs. of Guilford
Tech. Cmty. Coll., 364 N.C. 102, 107-08, 691 S.E.2d 694,
697-98 (2010). The second is that in order to state a
negligence claim, the plaintiff must allege that the
defendant owed a legal duty to the plaintiff. See,
e.g., Inman v. City of Whiteville, 236 N.C.App.
301, 303, 763 S.E.2d 332, 334 (2014). Waiver of sovereign
immunity, by statute or otherwise, is a threshold question
which must be considered first and separately from the
elements of the underlying claim.
of pointing to a statute that purports to waive the Moore
County Defendants' sovereign immunity, Plaintiff points
to N.C. Gen. Stat. § 153A-140, which he contends gives
the county authority over the railroad crossing in question
and, in certain circumstances present in this case, imposes
duties. (Pl.'s Resp. (Doc. 29) at 11-12.) No waiver of
county sovereign immunity appears within the text of §
153A-140, and Plaintiff has failed to establish otherwise.
See Simmons, 122 F.Supp.3d at 270-71. Further,
Plaintiff has failed to explain how, even if this statute
imposed a duty on the county, sovereign immunity would be
of sovereign immunity may not be lightly inferred and State
statutes waiving this immunity, being in derogation of the
sovereign right to immunity, must be strictly
construed.” Meyer v. Walls, 347 N.C. 97, 104,
489 S.E.2d 880, 884 (1997) (citation omitted). Plaintiff has
failed to carry his burden of establishing that the
county's sovereign immunity can be waived by virtue of