United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION AND ORDER
S. Cayer, United States Magistrate Judge.
MATTER is before the Court on “Defendant's
Motion to Dismiss” (document #7) and Plaintiff's
“Request for Leave to Amend Complaint” (document
#11), as well as the parties' briefs and exhibits.
Motions have been referred to the undersigned Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1).
fully considered the arguments, the record, and the
applicable authority, the Court will deny
Plaintiff's Request for Leave to Amend Complaint and
respectfully recommend that Defendant's Motion to Dismiss
be granted as discussed below.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
10, 2019, pro se Plaintiff filed her Complaint
challenging “the NC Board of Elections …
investigat[ion into] the 9th Congress. Dist. 2018
Election in early 2019 after new board members were appointed
by the Gov. and pressured the incumbent Mark Harris into
conceding the race and opening a new election.”
Document #1 at 2. Plaintiff seeks “an Injunction to
stop the current election activities…”
Id. at 5. The special election in the Ninth
Congressional District will occur on September 10, 2019.
7, 2019, Defendant moved to dismiss based upon several
grounds including Plaintiff's lack of standing.
9, 2019, Plaintiff filed her Request for Leave to Amend
Complaint. Plaintiff seeks to “amend the named
defendants.” Document #11 at 1.
parties' Motions are ripe for disposition.
existence of subject matter jurisdiction is a threshold
issue. Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 96 (1998). Accord Jones v. American Postal
Workers Union, 192 F.3d 417, 422 (4th Cir. 1999);
Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
Cir.1999). The plaintiff has the burden of proving that
subject matter jurisdiction exists. Richmond,
Fredericksburg & Potomac R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991). When a defendant
challenges subject matter jurisdiction pursuant to Rule
12(b)(1), “the district court is to regard the
pleadings as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment.” Id.
The district court should grant the Rule 12(b)(1) motion to
dismiss “only if the material jurisdictional facts are
not in dispute and the moving party is entitled to prevail as
a matter of law.” Id.
order to satisfy the standing requirement found under Article
III, Section 2 of the U.S. Constitution, “the party
invoking federal court jurisdiction must show that (1) it has
suffered an injury in fact, (2) the injury is fairly
traceable to the defendants' actions, and (3) it is
likely, and not merely speculative, that the injury will be
redressed by a favorable decision.” Long Term Care
Partners, LLC v. United States, 516 F.3d 225, 230-231
(4th Cir. 2008) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-561 (1992)); see also
Friends of the Earth, Inc. v. Gaston Copper Recycling
Corp., 204 F.3d 149, 154 (4th Cir. 2000)(en banc). To
meet the first requirement the plaintiff “must
demonstrate an injury in fact that is concrete and
particularized, and actual or imminent, as opposed to
conjectural or hypothetical.” Long Term Care,
516 F.3d at 230-31. The standing requirement is designed to
guarantee that the plaintiff has a sufficient personal stake
in the outcome of a dispute to render judicial resolution of
the dispute appropriate. Id. (citing Emery v.
Roanoke City Sch. Bd., 432 F.3d 294, 298 (4th Cir. 2005)
(internal quotations omitted)). See also Beck v.
McDonald, 848 F.3d 262, 269 (4th Cir. 2017); David
v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013);
Disabled Patriots of Am., Inc. v. Fu, No.
3:08CV542-RJC-DSC, 2009 WL 1470687, at *2 (W.D. N.C. May 26,
Court is mindful of the latitude extended to the pleadings of
pro se litigants. See Haines v. Kerner, 404
U.S. 519, 520 (1972) (courts should “[c]onstru[e] [a
pro se] petitioner's inartful pleading
liberally”). However, courts cannot act as the pro
se plaintiff's advocate or develop claims which the
plaintiff failed to raise clearly on the face of her
complaint. Gordon v. Leeke, 574 F.2d 1147, 1152 (4th
Cir. 1978) (recognizing that district courts are not expected
to assume the role of advocate for the pro se
plaintiff). See also Brock v. Carroll, 107 F.3d 241,
243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
clearly lacks standing to bring this action. “It is
well settled that under Article III of the United States
Constitution, a plaintiff must establish that a ‘case
or controversy' exists ‘between himself and the
defendant' and ‘cannot rest his claim to relief on
the legal rights or interests of third parties.'”
Smith v. Frye, 488 F.3d 263 (4th Cir. 2007) (citing
Warth v. Seldin, 422 U.S. 490, 498-99 (1975)). A
voter lacks standing to “assert the rights of
third-party elected officials or ‘voters'
generally.” Dyer v. Maryland State Bd. of
Educ., 187 F.Supp.3d 599, 610 (D. Md. 2016),
aff'd, 685 Fed.Appx. 261 (4th Cir. 2017). Stated
differently, “a voter fails to present an