Dial v. Robeson County, North Carolina et al
ORDER GRANTING 5 Motion to Dismiss for Failure to State a Claim, GRANTING 9 Motion to Dismiss for Lack of Jurisdiction, and GRANTING 22 Motion to Dismiss for Lack of Jurisdiction. Signed by US District Judge Terrence W. Boyle on 11/5/2014. Copy mailed to pro se plaintiff, via US Mail, to 1848 Red Banks Road, Pembroke, NC, 28372. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
DEL TON R. DIAL,
ROBESON COUNTY, NORTH CAROLINA,
This matter is before the Court on defendants' motions to dismiss. Plaintiff responded
after the expiration of the response deadline, and the matter is ripe for ruling. For the following
reasons, defendants' motions to dismiss are GRANTED.
Plaintiff Delton Dial filed this action seeking injunctive relief and damages against
defendants Robeson County, North Carolina (Robeson County), Grady Hunt, Fannie Sue
Lowery, and Horace Paul Dial. This action arises out of a petition for actual partition filed in
2010, by defendant Hunt as attorney for defendants Lowery and Dial. In the instant action,
plaintiff alleges that defendant Hunt falsely represented to the Robeson County Superior Court
that he had permission from the heirs of the James and Fannie Dial estate to sell the property, in
violation ofN.C.G.S. § 110-1 07; that defendants Lowery and Dial committed fraud by
partitioning the estate without just compensation or permission from other heirs in violation of
N.C.G.S. § 97-88; and that defendant Robeson County had knowledge of these crimes and failed
to do anything to stop them in violation of 42 U.S.C. § 1986. Defendants all now move to
dismiss plaintiffs claims pursuant to Federal Rule of Civil Procedure 12(b)(l) and 12(b)(6).
Federal Rule of Civil Procedure 12(b)(l) authorizes dismissal of a claim for lack of
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). A federal court "must
determine that it has subject-matter jurisdiction over [a claim] before it can pass on the merits of
that [claim]." Constantine v. Rectors and Visitors ofGeorge Mason Univ., 411 F.3d 474,479-80
(4th Cir. 2005). As the party asserting that the Court has subject-matter jurisdiction, plaintiff
must prove that subject-matter jurisdiction exists. 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.
Co. 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. Evans, 166 F.3d at 647.
Here, the complaint must be dismissed pursuant to Rule 12(b)(1) because this Court lacks
subject-matter jurisdiction over the purported claims. A federal court has subject matter
jurisdiction over civil cases "arising under the Constitution, laws, or treaties of the United
States," or over civil cases in which the amount in controversy exceeds $75,000, exclusive of
interests and costs, and in which diversity of citizenship exists between the parties. 28 U.S.C. §§
Plaintiff does not allege that his case is before the Court pursuant to diversity
jurisdiction-nor could he. It is undisputed that the parties are all citizens of North Carolina.
Plaintiff instead pleads that his cases raises a federal question in that he sues Robeson County
under 42 U.S.C. § 1986, which is a federal law. However, plaintiff has not pled sufficient facts to
state a claim under this statute.
Section 1986 authorizes a neglect action against "[ e]very person who, having knowledge
that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are
about to be committed, and having power to prevent or aid in preventing the commission of the
same, neglects or refuses so to do .... " 42 U.S.C. § 1986. Thus, liability under§ 1986 is
predicated upon liability under 42 U.S.C. § 1985. Section 1985, in turn, forbids conspiracy to
interfere with civil rights in the form of (1) preventing an officer of the United States from
performing duties; (2) obstructing justice; or (3) depriving persons of rights or privileges. 42
U.S.C. § 1985. Plaintiff does not allege that Robeson County violated § 1985 in any way, nor
does plaintiff allege any facts that would support the argument that Robeson County violated §
1985 in any way. Accordingly, plaintiff fails to state a claim for violating § 1986, and this
purported claim cannot form the basis for the Court's subject-matter jurisdiction.
No other claims purportedly raised in the complaint arise under federal law. Accordingly,
plaintiff has failed to meet his burden of establishing subject-matter jurisdiction. And,
unfortunately for Mr. Dial, a plaintiffs failure to establish subject-matter jurisdiction requires
dismissal ofhis case. See, e.g, Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 342-43 (2006).
Accordingly, this Court dismisses plaintiffs complaint against Robeson County for lack of
subject matter jurisdiction and declines to exercise supplemental jurisdiction over the remaining
state law claims pursuant to 28 U.S.C. § 1367(c)(3). Hinson v. Norwest FinS. Carolina, Inc.,
239 F.3d 611 (4th Cir. 2001).
For the foregoing reasons, defendants' motions to dismiss [DE 5, 9, 22], are GRANTED.
Plaintiffs claims are dismissed in their entirety. The Clerk is DIRECTED to close the case.
This, the~ day ofNovember, 2014
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUD
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