ROGERS v. U.S. CORP.

Filing 21

MEMORANDUM OPINION AND ORDER signed by JUDGE N. C. TILLEY, JR on 6/20/2014; Defendant's Motion to Dismiss or in the Alternative for Summary Judgment (Doc. # 18 ) is GRANTED and the instant action is DISMISSED. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
HOWARD S. ROGERS,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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1:13CV501

MEMORANDUM OPINION AND ORDER
The instant matter comes before the Court on Defendant United States
of America’s Motion to Dismiss or in the Alternative Motion for Summary
Judgment (Doc. #18).

For the reasons stated herein, Defendant’s instant

Motion will be GRANTED.
I.
Plaintiff, proceeding pro se and in forma pauperis, initiated the instant
action with a document entitled “Take Judicial Notice and Administrative
Notice; In the Nature of a Writ of Error, Coram Nobis, and a Demand for
Dismissal for Failure to State the Proper Jurisdiction and Venue” naming the
“United States of America” as “Plaintiff Fictitious Foreign State” and himself as
“Petitioner/Administrator.”

Doc. #2.

That document, though largely

incomprehensible, states that Plaintiff “hold[s] the inherent right of the 11th
Amendment” (id. at 3), complains of four unintelligible “issues of fraud” (id. at
4-5), and appears to demand “a proper jurisdiction and a venue change to the
People’s Constitutional Article III court” of some unidentified action (id. at 6).
In connection with that filing, Plaintiff attached a Uniform Commercial Code
Initial Financing Statement in which he lists himself as “Debtor” and identifies
as collateral his birth certificate, DNA, blood, retina scans, and fingerprints,
among other, similar items. See Doc. #2-1 at 2-3.

Defendant filed the instant Motion contending that this action should be
dismissed pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure for lack of subject matter jurisdiction or for failure to state a claim
upon which relief can be granted. Subsequent to that filing, the Clerk of Court
sent Plaintiff a letter explaining that Plaintiff had "the right to file a 20-page
response in opposition to [the instant] motion . . . ." (Doc. #20 at 1.) That
letter specifically cautioned Plaintiff that his "failure to respond or, if
appropriate, to file affidavits or evidence in rebuttal within the allowed time may
cause the court to conclude that the defendant's contentions are undisputed.
. . . [and that,] [t]herefore, unless [he] file[s] a response in opposition to the
motion, it is likely [his] case will be dismissed or summary judgment granted in
favor of the defendant." (Id.) Despite these warnings, Plaintiff has made no
additional filings with the Court. (See Docket Entries dated Dec. 4, 2013, to
present.)
II.
As an initial matter, the instant action warrants dismissal due to Plaintiff’s
failure to respond. Under the Local Rules of this Court, failure to respond to a
motion generally warrants granting the relief requested.

See M.D.N.C.

LR7.3(k). Given Plaintiff’s silence and the Clerk’s explicit warning that a failure
to respond to the instant Motion would likely lead to dismissal, no reason exists
to depart from that Rule in the instant matter.
Moreover, Plaintiff fails to allege facts that would grant this court subject
matter jurisdiction. “As a sovereign, the United States is immune from all suits
against it absent an express waiver of its immunity.” Welch v. United States,
409 F.3d 646, 650 (4th Cir. 2005). “[I]t is the plaintiff’s burden to show that
an unequivocal waiver of sovereign immunity exists and that none of the
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statute’s waiver exceptions apply to his particular claim.”

Id. at 650-51.

Plaintiff’s filing presents no basis to find any such waiver that would allow this
action to proceed.1
Furthermore, the instant matter warrants dismissal because Plaintiff’s
filing fails to state a claim upon which relief can be granted. “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, 129 S. Ct. 1937, 1949, 173 L. Ed.2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167
L. Ed.2d 929 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th
Cir.2009) (plaintiff must articulate facts that “show a plausibility of entitlement
to relief”) (internal citations and quotations omitted). Although "[a] document
filed pro se is to be liberally construed and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct.
2197, 167 L.Ed.2d 1081 (2007) (internal citations and quotation marks
omitted), such liberal interpretation does not “undermine Twombly’s
requirement that a pleading contain ‘more than labels and conclusions,’”
Giarratano v. Johnson, 521 f.3d 298, 304 n. 5 (4th Cir. 2008) (citing
Twombly, 550 U.S. at 555).

Plaintiff’s filing, in fact, lacks any factual

1

Plaintiff’s reference to coram nobis relief does not alter this analysis. “The
writ of error coram nobis ‘is used to attack allegedly invalid convictions which have
continuing consequences, when the petitioner has served his sentence and he is no
longer in custody for purposes of 28 U.S.C. § 2255.’” United States v. Orocio, 645
F.3d 630, n.4 (3d Cir. 2011). Moreover, “[a] writ of error coram nobis can only issue
to aid the jurisdiction of the court in which the conviction was had.” Sinclair v. State
of La., 679 F.2d 513, 514 (5th Cir. 1982). Plaintiff fails identify any prior proceeding
for which such relief might be appropriate. See generally Doc. #2.
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allegations from which to conclude that Plaintiff possesses a plausible claim to
relief.2
III.
For the foregoing reasons, Defendant’s Motion to Dismiss or in the
Alternative for Summary Judgment (Doc. #18) is GRANTED and the instant
action is DISMISSED.
This the 20th day of June, 2014.

/e/ N. Carlton Tilley, Jr.
Senior United States District Judge

2

Indeed, as Defendant notes, Plaintiff’s filing appears to be a version of a
coram nobis document available for download that has been unaltered to reflect any
facts specific to Plaintiff. See Rod Class, Coram Nobis Long Version, March 2012,
http://aib-rodclassdocuments.com/ (last visited June 20, 2014); see also Fed. R. Evid.
201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable
dispute because it . . . can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.”).
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