United States District Court, E.D. North Carolina, Western Division
C. DEVER III UNITED STATES DISTRICT JUDGE
February 22, 2019, George Kariuki ("Kariuki" or
"plaintiff'), proceeding nro se, filed an amended
complaint against the State of North Carolina-North Carolina
Department of Insurance ("NCDOI" or
"defendant") [D.E. 20] and moved to seal the
amended complaint [D.E. 21]. On March 5, 2019, NCDOI moved to
dismiss a portion of Kariuki's amended complaint for lack
of subject-matter jurisdiction and for failure to state a
claim upon which relief could be granted [D.E. 22] and filed
a memorandum in support [D.E. 23]. On the same day, the court
notified Kariuki about the motion, the consequences of
failing to respond, and the response deadline [D.E. 24].
See Roseboro v. Garrison, 528 F.2d 309, 310 (4th
Cir. 1975) (per curiam). On April 26, 2019, Kariuki responded
in opposition and moved to amend his amended complaint [D, E.
26]. On May 17, 2019, NCDOI responded in opposition to
Kariuki's motion to amend [D.E. 28]. On May 21, 2019,
Kariuki replied [D.E. 29]. On May 22, 2019, Kariuki moved to
amend his amended complaint [D.E. 30]. On June 10, 2019,
NCDOI responded in opposition [D .E. 31 ]. As explained
below, the court grants NCDOI's partial motion to
dismiss, denies Kariuki's motion to seal, and denies as
futile Kariuki's motions to amend.
is a 47-year-old black Kenyan-American. See Am. Compl. [D.E.
20] 1. The NCDOI employed Kariuki. Cf.id. From November 2017
to January 2018, Kariuki served as a juror in Wake County
Superior Court. See Id. at 3-4. Kariuki alleges that
he was harassed and intimidated after receiving his jury
summons. See Id. at 3. For example, Kariuki alleges
that one of his supervisors "followed [him] to the
bathroom wanting to know more details of [his] jury service
and the case that [he] was serving as a juror despite
[Kariuki] previously stating that [he] was under oath and
[he] was not allowed to divulge any details of the
case." Id. Kariuki also alleges that, on
November 27, 2017, Monique Smith ("Smith"), the
Director of Insurance Company Examinations, sent him two
harassing e-mails concerning his jury service soon after he
returned to work. See id.
count six of Kariuki's amended complaint, Kariucki
alleges that NCDOI harassed, intimidated, and wrongfully
terminated him while he served as a juror in violation of 28
U.S.C. § 1875(a) and N.C. Gen. Stat. §9-32(a). See
Id. at 3-4. On March 5, 2019, NCDOI moved to dismiss
count six for lack of subject-matter jurisdiction and for
failure to state a claim [D.E. 22]. On April 26, 2019,
Kariuki responded in opposition and moved to amend count six
[D.E. 26]. On May 22, 2019, Kariuki again moved to amend
count six to allege that NCDOI violated the Equal Protection
Clause of the Fourteenth Amendment by harassing,
intimidating, and wrongfully terminating Kariuki while he
served as a juror [D.E. 30].
motion to dismiss under Rule 12(b)(1) of the Federal Rules of
Civil Procedure tests subject-matter jurisdiction, which is
the court's "statutory or constitutional power to
adjudicate the case." Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 89 (1998) (emphasis
omitted); see Holloway v. Pagan River Dockside Seafood.
Inc., 669 F.3d 448, 453 (4th Cir. 2012);
Constantine v. Rectors & Visitors of George
Mason Univ., 411 F.3d 474, 479-80 (4th Cir. 2005). A
federal court "must determine that it has subject-matter
jurisdiction over the case before it can pass on the merits
of that case." Constantine. 411 F.3d at 479-80.
As the party invoking federal jurisdiction, Kariuki bears the
burden of establishing that this court has subject-matter
jurisdiction in this action. See, e.g.. Steel Co..
523 U.S. at 104; Evans v. B.F. Perkins Co.,
166 F.3d 642, 647 (4th Cir. 1999); Richmond.
Fredericksburg & Potomac R.R. v. United States, 945
F.2d 765, 768 (4th Cir. 1991). In considering a motion to
dismiss for lack of subject-matter jurisdiction, the court
may consider evidence outside the pleadings without
converting the motion into one for summary judgment. See,
e.g.. Evans. 166 F.3d at 647. A court should grant a
motion to dismiss pursuant to Rule 12(b)(1) "only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to judgment as a matter of
law." Id. (quotation omitted).
motion to dismiss under Rule 12(b)(6) tests the
complaint's legal and factual sufficiency. See
Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009);
Bell AH. Corp. v. Twombly, 550 U.S. 544, 554-63
(2007); Coleman v Md. Court of Appeals. 626 F.3d
187, 190 (4th Cir. 2010), aff4 566 U.S. 30 (2012); Nemet
Chevrolet Ltd. v. Consumeraffairs. com. Inc., 591 F.3d
250, 255 (4th Cir. 2009); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)
motion, a pleading "must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Iqbal. 556 U.S. at 678
(quotation omitted); see Twombly. 550 U.S. at 570;
Giarratano. 521 F.3d at 302. In considering the
motion, the court must construe the facts and reasonable
inferences "in the light most favorable to the
[nonmoving party]." Massey v. Ojaniit, 759 F.3d
343, 352 (4th Cir. 2014); see Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013),
abrogated on other grounds by Reed v.
Town of Gilbert, 135 S.Ct. 2218 (2015). A court need not
accept as true a complaint's legal conclusions,
"unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano. 521 F.3d at 302
(quotation omitted); see Iqbal. 556 U.S. at 678-79.
Rather, a plaintiff s allegations must "nudge[ ] [his]
claims," Twombly. 550 U.S. at 570, beyond the
realm of "mere possibility" into
"plausibility." Iqbal. 556 U.S. at 678-79.
standard used to evaluate the sufficiency of a pleading is
flexible, "and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation
omitted). Erickson. however, does not
"undermine [the] requirement that a pleading contain
'more than labels and conclusions.'"
Giarratano, 521 F.3d at 304 n.5 (quoting
Twombly. 550 U.S. at 555); see Iqbal, 556
U.S. at 677-83; Coleman. 626 F.3d at 190; Nemet
Chevrolet Ltd.. 591 F.3d at 255-56; Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). Although
a court must liberally construe a pro se plaintiffs
allegations, it "cannot ignore a clear failure to allege
facts" that set forth a cognizable claim. Johnson v.
BAC Home Loans Servicing. LP., 867 F.Supp.2d 766,
776 (E.D. N.C. 2011); see Giarratano. 521 F.3d at
evaluating a motion to dismiss, a court considers the
pleadings and any materials "attached or incorporated
into the complaint." E.I, du Pont de Nemours &
Co. v. Kolon Indus.. Inc., 637 F.3d 435, 448 (4th Cir.
2011); see Fed.R.Civ.P. 10(c); Thompson v. Greene,
427 F.3d 263, 268 (4th Cir. 2005). A court also may take
judicial notice of public records without converting the
motion to dismiss into a motion for summary judgment.
See, e.g.. Fed.R.Evid. 201 (d); Tellabs, Inc. v.
Makor Issues & Rights. Ltd., 551 U.S. 308, 322
(2007); Philips v. Pitt Ctv. Mem'l Hosp., 572
F.3d 176, 180 (4th Cir. 2009).
motion to dismiss requires the court to consider
Kariuki's North Carolina state-law claim. Accordingly,
this court must predict how the Supreme Court of North
Carolina would rule on any disputed state-law issues. See
Twin City Fire Tns. Co. v. Ren Arnold-Sunbelt Beverage
Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005). In doing
so, the court must look first to opinions of the Supreme
Court of North Carolina. See Stahle v. CTS Corp.,
817 F.3d 96, 100 (4th Cir. 2016). If there are no governing
opinions from that court, this court may consider the
opinions of North Carolina Court of Appeals, treatises, and
"the practices of other states." Twin City Fire
Ins. Co.. 433 F.3d at 369 (quotation
omitted). In predicting how the highest court of a
state would address an issue, this court "should not
create or expand a [s]tate's public policy."
Time Warner Entm 't-Advance/New house P'ship v.
Carteret-Craven Elec. Membership Corp., 506 F.3d 304.314
(4th Cir. 2007) (alteration and quotation omitted); see
Wade v. Danek Med.. Inc., 182 F.3d 281, 286 (4th
Cir. 1999). Moreover, in predicting how the highest court of
a state would address an issue that it has not yet resolved,
this court must "follow the decision of an intermediate
state appellate court unless there [are] persuasive data that
the highest court would decide differently."
Toloczko. 728 F.3d at 398 (quotation omitted).
Kariuki's claim under 28 U.S.C. § 1875(a),
"[n]o employer shall discharge, threaten to discharge,
intimidate, or coerce any permanent employee by reason of
such employee's jury service, or the attendance or
scheduled attendance in connection with such service, in any
court of the United States." 28 U.S.C. § 1875(a).
Kariuki served as a juror in state court, not federal court
Accordingly, Kariuki ...