United States District Court, E.D. North Carolina, Western Division
KENNETH R. PARSONS, JR., Plaintiff,
NORTH CAROLINA DEPARTMENT OF REVENUE, STATE OF NORTH CAROLINA, Defendants.
W. Flanagan United States District Judge.
matter is before the court on defendants' motion to
dismiss for lack of subject matter jurisdiction, lack of
personal jurisdiction, insufficient process, insufficient
service of process, and failure to state a claim pursuant to
Federal Rules of Civil Procedure 12(b)(1), 12(b)(2),
12(b)(4), 12(b)(5) and 12(b)(6) (DE 27). Also pending before
the court are plaintiff's motion for reconsideration of
the court's order denying preliminary injunctive relief
(DE 35), defendants' motion to strike plaintiff's
amended complaint or in the alternative second motion to
dismiss pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6)
(DE 39), and plaintiff's motion for extension of time to
respond to defendants' motion to strike and second motion
to dismiss (DE 42). The court construes plaintiff's
filing of his first amended complaint (DE 37) as a motion for
leave to amend pursuant to Rule 15(a)(2). The issues raised
have been fully briefed, and in this posture are ripe for
reasons that follow, plaintiff's motion to amend is
granted, and defendants' first motion to dismiss and
motion to strike are denied as moot. Defendants' second
motion to dismiss is granted for lack of subject matter
jurisdiction, and plaintiff's motion for reconsideration
is denied as moot. Plaintiff's motion for extension of
time to respond to the motion to strike is denied as moot,
and his motion for extension of time to respond to
defendants' second motion to dismiss is denied.
OF THE CASE
proceeding pro se, commenced this action in the United States
District Court for the Northern District of Texas on June 11,
2018, alleging that defendants unlawfully levied taxes
against him in violation of his federal constitutional rights
because he is a “nontaxpayer.” Plaintiff's
case was transferred to this district on September 12, 2018.
On frivolity review, the court dismissed plaintiff's
claims against defendant Bank of America, but allowed
plaintiff's remaining claims to proceed. Following
plaintiff's efforts to serve defendants, defendants filed
their first motion to dismiss on March 4, 2019. Defendants
contend that plaintiff is barred from pursuing his case in
federal district court, that service was never perfected, and
that plaintiff fails to allege facts sufficient to state a
after defendants filed their first motion to dismiss, the
court denied motion from plaintiff seeking preliminary
injunctive relief preventing defendants from collecting money
from him. The court reasoned that the Tax Injunction Act
deprived the court of jurisdiction to provide injunctive
relief, in light of the plain, speedy, and efficient remedy
under North Carolina law for challenging tax assessments.
Plaintiff moved for reconsideration on March 28, 2019,
arguing that the law only protects taxpayers, and he is not a
taxpayer able to take advantage of the administrative
remedies provided under state law.
April 8, 2019, plaintiff filed his first amended complaint.
Defendants moved to strike the first amended complaint
approximately one week later, arguing that the allegations
contained therein are substantively the same, and that
plaintiff seeks to delay adjudication of their motion to
dismiss. In the alternative, defendants move to dismiss
plaintiff's first amended complaint on the same grounds
as his original complaint, incorporating their prior
arguments by reference.
facts in the complaint may be summarized as follows. On or about
February 17, 2017, defendant North Carolina Department of
Revenue (“NCDOR”) garnished plaintiff's bank
account for an alleged tax debt for tax year 2010 in excess
of $2, 800.00. (Compl. ¶ 7). Plaintiff challenged this
alleged tax debt, requested a hearing, and mailed a cease and
desist order to defendant NCDOR on June 27, 2017.
(Id. ¶ 8). Plaintiff argued to defendant NCDOR
that it “lacked legal standing” and “lacked
jurisdiction” over plaintiff. (Cease and Desist Letter
(DE 37-1) at 1-2). Plaintiff received no response. (Compl.
¶ 8). On or about December 6, 2017, defendant NCDOR
again garnished plaintiff's checking account in the
amount of $1, 260.60 for the same alleged 2010 tax debt.
(Id. ¶ 10). Plaintiff mailed another notice to
demand proof of his tax liability. (Id. ¶ 11).
On or about January 25, 2018, plaintiff received another
notice for an alleged tax debt for 2012 amounting to over $4,
700.00. (Id. ¶ 12). Plaintiff mailed another
formal challenge to defendant NCDOR on or about February 1,
2018, demanding that they stop collection activity.
(Id.). On or about June 1, 2018, plaintiff mailed
defendants notice of intent to file a lawsuit. (Id.
Plaintiff's Motion to Amend (DE 37)
filed his first amended complaint. Where plaintiff proceeds
pro se, the court construes the filing as a motion to amend
his complaint. When a party seeks leave to amend after a
responsive pleading or Rule 12(b) motion has been filed, the
party “may amend its pleading only with the opposing
party's written consent or the court's leave.”
Fed.R.Civ.P. 15(a)(2). “The court should freely give
leave when justice so requires.” Id. “In
the absence of any apparent or declared reason - such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc. - the leave sought should, as the rules require, be
‘freely given.'” Foman v. Davis, 371
U.S. 178, 182 (1962).
first amended complaint does not change his factual
allegations, but it does raise new legal arguments relevant
to the other motions pending in the case. Defendants argue
that the allegations of the complaint are not substantively
different, that they would be prejudiced because amending the
pleading would terminate their first motion to dismiss, and
that the allegations are futile. Defendants have already
raised a second motion to dismiss plaintiff's complaint
on similar grounds as plaintiff's original complaint,
therefore they are not prejudiced by granting plaintiff leave
to amend. The court grants plaintiff's motion to amend,
and denies as moot defendants' motion to strike and
plaintiff's motion for extension of time to respond to
defendants' motion to strike.
general rule, “an amended pleading ordinarily
supersedes the original and renders it of no legal
effect.” Young v. City of Mount Ranier, 238
F.3d 567, 573 (4th Cir. 2001) (internal quotations omitted);
see also 6 Charles Alan Wright, et al., Fed. Prac.
& Proc. § 1476 (3d ed. 1998) (“A pleading that
has been amended under Rule 15(a) supersedes the pleading it
modifies and remains in effect throughout the action unless
it subsequently is modified. . . . Once an amended pleading
is interposed, the original pleading no longer performs any
function in the case”). Where an amended complaint has
been filed with leave of court, motions to dismiss earlier