Fowler v. The City of Wilmington, et al.

Filing 27

ORDER granting in part and denying in part 18 Motion to Dismiss for Failure to State a Claim. Defendants City of Wilmington Collections Department, Mayor Bill Saffo, and City Manager Sterling Cheatham are DISMISSED. Plaintiffs claims against the City remain. Signed by Senior US District Judge W. Earl Britt on 6/14/2017. (Stouch, L.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO: 7:16-CV-296-BR
DENISE FOWLER,
Plaintiff,
v.
CITY OF WILMINGTON,
a North Carolina Municipality,
CITY OF WILMINGTON
COLLECTIONS DEPARTMENT,
MAYOR BILL SAFFO, in his official capacity,
CITY MANAGER STERLING CHEATHAM,
in his official capacity,
Defendants.

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ORDER

This matter is before the court on defendants City of Wilmington (the “City”), City of
Wilmington Collections Department, Mayor Bill Saffo, and City Manager Sterling Cheatham’s
motion to dismiss. (DE # 18.) Plaintiff filed a response, (DE # 19), to which defendants filed a
reply, (DE # 20). This matter is ripe for disposition.
I. BACKGROUND
In August 2015, plaintiff Denise Fowler’s neighbor, who has been in an on-going dispute
with plaintiff, (Am. Compl., DE # 17 ¶ 11), made a complaint to the Wilmington Police
Department, (id. ¶ 12), claiming plaintiff “had sounded her automobile horn for a reason other
than a warning or danger signal,” (id. ¶13). A member of the Wilmington Police Department
issued plaintiff a “Civil Citation Noise Violation.” (Id. ¶ 14.) The officer was not present to
witness the horn blast. (Id. ¶ 15.) The citation was for a violation of Wilmington City Code § 629, (id. ¶ 16), and stated that the penalty must be paid within ten days of the citation and “‘the

city may seek to recover the penalty by filing a civil action in the nature of debt,’”1 (id. ¶ 17
(quoting Ex. 2-A, DE # 17-3)). Plaintiff went to the city collection department to request
information on how to appeal the citation, (id. ¶ 18), but “was told there was no appeal
provision,” (id. ¶ 19). Plaintiff was also told that if she failed to pay, the City would obtain a
judgment against her requiring her to pay the penalty as well as other costs associated with the
action. (Id. ¶ 21.) Plaintiff subsequently received two bills from the City, one in September
2015 and one in December 2015, informing her she owed $250.00. (Id. ¶¶ 24-25.) Plaintiff,
fearful that a lawsuit would negatively affect her credit or have other “lasting effects on her good
name,” (id. ¶ 27), remitted $250.00 to the City, (id. ¶ 29). Plaintiff asserts a violation of her due
process rights under the United States and North Carolina Constitutions and seeks the recovery
of nominal, compensatory, and punitive damages. (Id. at 5 ¶¶ 2-4.)
II. DISCUSSION
Rule 12(b)(6) allows a claim to be dismissed if the plaintiff fails to “state a claim upon
which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) is meant to test the
sufficiency of a complaint rather than resolving any disagreements “surrounding the facts, the
merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d
943, 952 (4th Cir. 1992). In considering a 12(b)(6) motion, “[the court] accept[s] as true all
well-pleaded allegations and view[s] the complaint in the light most favorable to the plaintiff.”
Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)
(citation omitted).

 The section of the Wilmington City Code that plaintiff purportedly violated provides “[n]o person shall engage in
any of the enumerated activities so as to cause a noise disturbance on neighboring premises. . . . [s]ounding of any
automobile horn except as a warning or danger signal.” Wilmington, N.C., Code of Ordinances § 6-29 (2017). The
civil penalty for a first-time violation of this Code section is $250.00. Id. § 6-1(b)(2)a. “If a person fails to pay a
civil penalty within ten (10) days after being cited for a violation, the city may seek to recover the penalty by filing a
civil action in the nature of a debt.” Id. § 6-1(b)(4). 
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Defendants contend that the City of Wilmington Collections Department is not a legal
entity and cannot be sued. (Defs.’ Mem. Supp. Mot. Dismiss, DE # 19, at 3.) The capacity to be
sued is determined “by the law of the state where the court is located . . . .” Fed. R. Civ. P.
17(b)(3). North Carolina courts have held that “component parts” of a city “lack the capacity to
be sued.” Jones v. City of Greensboro, 277 S.E.2d 562, 576 (N.C. Ct. App. 1981), overruled on
grounds by Fowler v. Valencourt, 435 S.E.2d 530 (N.C. 1993). Plaintiff’s own allegations
recognize that the City of Wilmington Collections Department is “a subdivision of the City of
Wilmington . . . ,” (Am. Compl., DE # 17, ¶ 3), and plaintiff does not respond to defendants’
argument. The court agrees that because it is does not have the capacity to be sued, the City of
Wilmington Collections Department should be dismissed from the case.
Defendants further contend Mayor Bill Saffo and City Manager Sterling Cheatham
should be dismissed from the case because plaintiff has made no allegations against either party.
(Defs.’ Mem. Supp. Mot. Dismiss, DE # 19, at 3-4.) Plaintiff does not respond to this argument.
The court agrees that both Mayor Bill Saffo and City Manager Sterling Cheatham, who are sued
only in their official capacities, should be dismissed from the case because plaintiff states no
claim against them separate and apart from her claims against the City. See J.S. ex rel. Duck v.
Isle of Wight Cty. Sch. Bd., 368 F. Supp. 2d 522, 527 (E.D. Va. 2005) (“A § 1983 lawsuit
brought against an individual in his official capacity is [] duplicative of a claim brought against
the municipality.” (citations omitted)); Moore v. City of Creedmoor, 481 S.E.2d 14, 21 (N.C.
1997) (“[W]here the governmental entity may be held liable for damages resulting from its
official policy, a suit naming public officers in their official capacity is redundant.” (citing
Kentucky v. Graham, 473 U.S. 159, 166 (1985)).

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As to the City, plaintiff asserts she has been denied procedural due process as guaranteed
by the United States Constitution and the North Carolina Constitution. “North Carolina courts
have consistently interpreted the due process . . . clause[] of the North Carolina Constitution as
synonymous with [its] Fourteenth Amendment Counterpart[].” Tri Cty. Paving, Inc. v. Ashe
Cty., 281 F.3d 430, 435 n.6 (4th Cir. 2002) (citations omitted). The United States Constitution
provides that the state shall not “deprive any person of life, liberty, or property, without due
process of law . . . .” U.S. Const. amend. XIV.
At bottom, procedural due process requires fair notice of
impending state action and an opportunity to be heard. Notice and the
hearing are two distinct features of due process, and are thus governed by
different standards. Proper notice is “an elementary and fundamental
requirement of due process,” and must be reasonably calculated to convey
information concerning a deprivation.
Snider Int’l Corp. v. Town of Forest Heights, Md., 739 F.3d 140, 146 (4th Cir. 2014) (citations
omitted).
While the parties’ briefs primarily concentrate on the “opportunity to be heard” aspect of
due process, (DE # 19; DE # 20.), the court believes the focus should be directed at whether the
content of the notice provided to plaintiff was adequate to inform her of the opportunity to be
heard. In determining the sufficiency of notice, “notice satisfies due process where it either 1) ‘is
in itself reasonably certain to inform those affected’ or 2) ‘where conditions do not reasonably
permit such notice, . . . the form chosen is not substantially less likely to bring home notice than
other of the feasible and customary substitutes.’” Snider, 739 F.3d at 146 (quoting Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950)). It is not necessary that the notice
be actual, id., but the “timing, content of the notice and the form of the hearing will depend upon
a proper balancing of the competing interests involved,” Garraghty v. Jordan, 830 F.2d 1295,
1300 (4th Cir. 1987) (citing Goss v. Lopez, 419 U.S. 565, 579 (1975)); see also Mallette v.
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Arlington Cty. Emps.’ Supplemental Ret. Sys. II, 91 F.3d 630, 640 (4th Cir. 1996) (“[D]ue
process has no fixed content; it is ‘flexible and calls for such procedural protections as the
particular situation demands.’” (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972))).
“[W]hen notice is a person’s due, process which is a mere gesture is not due process.” Mullane,
339 U.S. at 315.
In the present case, notice of the opportunity to be heard was presented to plaintiff in one
sentence at the bottom of the citation which duplicates the enforcement section of the
Wilmington City Code. (Am. Compl., Ex. 1, DE # 17-1.) The sentence reads; “This penalty
must be paid within ten (10) days after being cited for a violation, [sic] the city may seek to
recover the penalty by filing a civil action in the nature of debt.” (Id.). See also Wilmington,
N.C., Code of Ordinances § 6-1(b)(4) (2017). The content of this notice arguably is ambiguous
and vague and not “reasonably certain to inform those affected.” Snider, 739 F.3d at 146.
Plaintiff’s amended complaint makes clear that it was not apparent to her that the City’s ability to
bring “a civil action in the nature of debt” for failure to pay the penalty presented her with
opportunity to dispute the allegations against her.
When plaintiff reached out to City employees to discover how she could contest the
allegations, she was told “there was no appeal provision provided for in the Wilmington City
Code . . .,” (Am. Compl., DE # 17, ¶ 19), and “was then told if she did not pay the monies that
the City would obtain a judgment against her for said monies and other costs associated with that
action,” (id. ¶ 21 (emphasis added)). This language, as well as the actual language of the
citation, seems to indicate that the action to collect the debt is a formality and not in fact an
opportunity to dispute the allegations. See Mallette, 91 F.3d at 640-41 (holding that notice given
to the plaintiff that she would have to argue her retired job connected disability claim in order to

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have it converted from her existing worker’s compensation was such that she “could not have
understood the adverse nature of the hearing, could not have adequately evaluated her need for
counsel, and could not have prepared appropriate rebuttal evidence” in light of representations
made to her by the County personnel).
Plaintiff continued to request “to be heard on the noise violation and was again denied . . .
.” (Am. Compl., DE # 17, ¶ 23.) Following the receipt of two bills to collect the money, (id. ¶¶
24-25), she then “became increasingly fearful that the City of Wilmington would sue her,” (id. ¶
26), and that “the lawsuit would ruin her credit and have other long lasting effects on her good
name,” (id. ¶ 27). “After attempting to gain a hearing and being denied a hearing on whether a
violation had in fact occurred, the Plaintiff relented to the City’s collection efforts.” (Id. ¶ 28.)
Plaintiff does not allege that at any time was her opportunity to be heard conveyed to her. To the
contrary, her repeated attempts to obtain a hearing and avoidance of the fine indicate that she
was not aware of the procedure to contest the penalty.
Therefore, the allegations viewed in a light most favorable to plaintiff raise legitimate
concerns about the sufficiency of the content of the notice, specifically whether it was reasonably
expected to inform an individual facing liability of the procedure for contesting the penalty.
Viewed in this context, plaintiff has sufficiently stated a claim upon which relief may be granted.
III. CONCLUSION
For the reasons set forth above, defendants’ motion to dismiss is GRANTED IN PART
and DENIED IN PART. Defendants City of Wilmington Collections Department, Mayor Bill
Saffo, and City Manager Sterling Cheatham are DISMISSED. Plaintiff’s claims against the City

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remain.
This 14 June 2017. 

__________________________________ 

W. Earl Britt

Senior U.S. District Judge

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