United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court upon defendant's motion to
dismiss for lack of jurisdiction, insufficient service, and
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(2), (4), (5), and (6). (DE 9). Plaintiff
responded in opposition and separately filed a motion
entitled as one “to resolve” a driving record
issue. (DE 19). In this posture, the issues raised are ripe
for ruling. For the following reasons, defendant's motion
is granted and plaintiff's motion is denied.
OF THE CASE
commenced this action on April 18, 2019, by filing a
complaint form and a civil cover sheet identifying a claim
under the False Claims Act, 31 U.S.C. §§ 3729-3733,
on the basis of “false claims on driving record.”
(DE 1-1). Plaintiff does not allege any facts in the
complaint. Plaintiff appears to seek injunctive relief and
does not assert monetary damages.
filed the instant motion to dismiss on June 13, 2019,
asserting the complaint should be dismissed for insufficiency
of process and service of process, resulting in lack of
personal jurisdiction. In addition, defendant asserts that
plaintiff fails to allege sufficient facts or state an
actionable claim against defendant. Finally, defendant
asserts the Eleventh Amendment bars suit against defendant
absent alleged waiver of sovereign immunity. After extension,
plaintiff responded in opposition to defendant's motion
on August 19, 2019. Plaintiff filed the instant motion to
resolve on October 15, 2019, attaching correspondence and
seeking deletion of a negative mark on his driving record.
Standard of Review
12(b)(2), (4), and (5), allow for dismissal of a complaint
for lack of personal jurisdiction, insufficient process, and
insufficient service of process. The court lacks personal
jurisdiction over a defendant that has not been served
properly. See Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 350 (1999). A plaintiff
bears the burden of establishing that process has been served
if challenged. Mylan Labs., Inc. v. Akzo, N.V., 2
F.3d 56, 60 (4th Cir. 1993).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Factual allegations must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555. In evaluating whether a
claim is stated, the “court accepts all well pled facts
as true and construes these facts in the light most favorable
to the plaintiff, ” but does not consider “legal
conclusions, elements of a cause of action, . . . bare
assertions devoid of further factual enhancement[, ] . . .
unwarranted inferences, unreasonable conclusions, or
arguments.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009) (citations omitted).
plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m) and must furnish
the necessary copies to the person who makes service.”
Fed.R.Civ.P. 4(c)(1). Rule 4(j) provides standards for
serving a state government defendant. Here, plaintiff has
provided no proof of service and has not evidence that he
served defendant properly with either the complaint or
summons. Therefore, this matter must be dismissed without
prejudice for insufficient service, insufficient service of
process, and lack of personal jurisdiction.
Failure to State a Claim
Rule of Civil Procedure 8(a) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a). Here, where the
complaint does not contain factual ...