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Hammonds v. State, Department of Transportation of Division of Motor Vehicles

United States District Court, E.D. North Carolina, Southern Division

November 12, 2019

DANNY RAY HAMMONDS, Plaintiff,
v.
STATE OF NORTH CAROLINA DEPARTMENT OF TRANSPORTATION OF DIVISION OF MOTOR VEHICLES, Defendant.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         This 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.

         STATEMENT OF THE CASE

         Plaintiff 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.

         Defendant 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.

         COURT'S DISCUSSION

         A. Standard of Review

         Rules 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).

         “To 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).

         B. Analysis

         1. Service

         “The 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.

         2. Failure to State a Claim

         Federal 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 ...


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