MARSHALL v. AMERICAN BROADCASTING COMPANY
Filing
105
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 06/26/2017. Defendants' motions to dismiss to the extent they are based on this court's lack of jurisdiction over the amended complaint's federal claims or, in the alt ernative, failure to state a claim as to them (Docs. 41 , 48 , 51 , 56 , 59 , 62 , and 73 ) are GRANTED, and the amended complaint (Doc. 41 ) is DISMISSED WITHOUT PREJUDICE AS TO ALL DEFENDANTS. Plaintiffs' motion to amend the complaint (Doc. 68 ) is DENIED as futile. Plaintiffs' motions for hearing are DENIED on the grounds they would not aid in the decisional process. All remaining motions are DENIED WITHOUT PREJUDICE AS MOOT.(Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BARBARA SUMMEY MARSHALL; MAYA
VALRISSA LOUISE MARSHALL; and
CLIFTON ROBERTO MARSHALL III,
Plaintiffs,
v.
AMERICAN BROADCASTING
COMPANIES, INC.; FAMILY
ENDEAVORS; HEATHER BLACK; NAT
ROBERTSON, Mayor of the City
of Fayetteville; EARL BUTLER,
Sheriff of Cumberland County;
LARISA WHITT; TRAVIS PEARSON;
BARBARA SPIGNER; CRYSTAL
SPIGNER WILLIAMS; ALLEN
ROGERS; BILLY R. KING; LAREENA
J. PHILLIPS, Assistant
Attorney General of North
Carolina; FAYETTEVILLE
OBSERVER; JENNIFER T. HARROD,
Special Deputy Attorney
General of North Carolina;
BLUE RIDGE LOG CABINS INC.;
HONORABLE ROBERT A. MCDONALD,
Veterans Affairs Department;
ENDEMOL SHINE NORTH AMERICA;
and DOES 1-50
Defendants.
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1:16CV550
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiffs, appearing pro se, claim that a broad range of
Defendants harmed them in their operation of a shelter for homeless
female veterans and their children after the shelter became the
subject of a television “make-over” show.
Before the court are a
host of motions.
Plaintiffs have submitted a “motion and petition
for joining complaint and amended to pleadings” (Doc. 43); a
“Motion
and
Petition
for
Amended
Complaint
Request
to
Serve
Defendants Added Since Original Complaint” (Doc. 68); two motions
for “joinder” (Docs. 46, 47); a “Motion for Order of Protection”
(Doc. 98); a “Motion for Order of Protection and Request for
Hearing” (Doc. 101); and four motions for oral argument/hearings
(Docs. 71, 91, 92, and 98).
Three women (designated “Friends and
Supporters”) have also filed motions to submit amicus briefs on
Plaintiffs’
behalf
(although
no
submitted).
proposed
brief
has
been
(Docs. 93, 94, and 95.)
The following Defendants have submitted motions to dismiss
the amended complaint (Doc. 41): Nat Robertson (Doc. 48); Earl
Butler (Doc. 51); Heather Black (Doc. 53); Jennifer T. Harrod and
Lareena J. Phillips (Doc. 56); Billy R. King and Allen W. Rogers
(Doc. 59); Family Endeavors, Travis Pearson, and Larisa Whitt (Doc.
62); and the American Broadcasting Company (“ABC”) (Doc. 73).
Collectively,
these
Plaintiffs’ lawsuit.
Defendants
cite
multiple
fatal
flaws
in
ABC’s motion to dismiss asserts, among other
grounds, that this court lacks subject matter jurisdiction over
Plaintiffs’ claims.
The other Defendants assert multiple grounds
for dismissal, including insufficiency of process and service of
process, improper venue, and failure to state a claim.
Plaintiffs
have not directly responded to Defendants’ motions but have filed
2
“motions to dismiss” the Defendants’ motions to dismiss (Doc. 85;
Doc. 87), which the court will treat as responses to those motions.
For
the
reasons
conclude
that
declining
to
that
follow,
Plaintiffs’
exercise
federal
the
court
claims
jurisdiction
over
is
cannot
any
compelled
proceed
purported
to
and,
State
claims, the court will dismiss the action without prejudice.
I.
BACKGROUND
Viewed
in
the
light
most
favorable
to
Plaintiffs,
the
operative facts are as follows:
Plaintiffs
claim
that
in
2005,
apparently
in
or
around
Fayetteville, North Carolina, they opened their home to “homeless
women veterans and their children” and that, in 2011, Defendant
ABC
approached
them
to
consider
their
home
for
its
“Extreme
Makeover show” through which ABC would renovate the structure and
feature it on television.
was
complete,
criticized,
(Doc. 41 at 2.)
however,
scrutinized,
the
and
local
After the renovation
community
villainized”
“excessively
them,
as
it
“was
unprepared and unaccepting of a house of that magnitude being
dedicated to the honor of women veterans.”
(Id. at 3.)
Plaintiffs
claim that the local print media attacked them, their organization,
and
their
hostility,
clients,
death
and
that
threats,
they
racial
endured
discrimination,
discrimination, jail time,” and other harms.
amended
complaint
mentions
“emotional
3
“violent
hatred,
disability
(Id. at 3-4.)
distress,”
physical
The
and
financial harms, and various types of discrimination, and requests
damages, attorneys’ fees, exemplary relief, and equitable relief.
(Id. at 10.)
The amended complaint’s allegations of wrongdoing
are highly generalized and conclusory but appear to arise out of
Plaintiff Barbara Marshall’s removal, legally and physically, from
her involvement with the shelter following legal action.
Defendant ABC argues primarily that the court lacks subject
matter jurisdiction over Plaintiffs’ federal claims.
The other
Defendants, as well, argue that Plaintiffs’ allegations are so
lacking in substance as to deprive the court of federal question
jurisdiction and, in the alternative, fail to contain sufficient
factual matter to make them plausible.
Even though Defendants
contend they have meritorious defenses based on other grounds,
such as improper venue and failure of both process and proper
service of process, they urge the court to nevertheless dismiss
the case on the merits “[g]iven the numerous barriers to Plaintiffs
maintaining a successful case.”
II.
(See Doc. 57 at 5.)
ANALYSIS
“The plaintiff has the burden of proving that subject matter
jurisdiction exists.” Evans v. B.F. Perkins Co., a Div. of Standex
Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999) (citing Richmond,
Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765,
768 (4th Cir. 1991)).
“When a defendant challenges subject matter
jurisdiction pursuant to Rule 12(b)(1), ‘the district court is to
4
regard the pleadings as mere evidence on the issue, and may
consider evidence outside the pleadings without converting the
proceeding to one for summary judgment.’”
Id. (citing Richmond,
Fredericksburg & Potomac R. Co., 945 F.2d at 768).
“The district
court should grant the Rule 12(b)(1) motion to dismiss ‘only if
the material jurisdictional facts are not in dispute and the moving
party is entitled to prevail as a matter of law.’”
Id. (citing
Richmond, Fredericksburg & Potomac R. Co., 945 F.2d at 768).
“When reviewing a pro se complaint, federal courts should
examine carefully the plaintiff’s factual allegations, no matter
how inartfully pleaded, to determine whether they could provide a
basis for relief.
In addition, in order to determine whether the
claim of a pro se plaintiff can withstand a motion to dismiss, it
is
appropriate
to
look
in
beyond
any
the
additional
face
of
the
filed
by
to
allegations
made
plaintiff.”
Armstrong v. Rolm A. Siemans Co., 129 F.3d 1258 (4th
Cir. 1997) (citations omitted).
materials
complaint
the
However, the liberal construction
of a pro se plaintiff’s pleading does not require the court to
ignore clear defects in pleading, Bustos v. Chamberlain, No. 3:09–
1760–HMH–JRM, 2009 WL 2782238, at *2 (D.S.C. Aug. 27, 2009), or to
“conjure up questions never squarely presented in the complaint,”
Brice v. Jenkins, 489 F. Supp. 2d 538, 541 (E.D. Va. 2007)
(internal quotation marks and citation omitted).
Nor does it
require that the court become an advocate for the unrepresented
5
party.
Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th
Cir. 1990).
Plaintiffs claim that this court’s jurisdiction over their
claims rests on the existence of a federal question, see 28 U.S.C.
§ 1331, invoking Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. (“Title VII”), the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”),
the Fair Housing Amendments Act
of 1988, 42 U.S.C. § 3601 et seq.
(“FHAA”), and, for the first time in a response brief (Doc. 78 at
9), the Notification and Federal Employee Antidiscrimination and
Retaliation Act, 5 U.S.C. § 2301 et seq. (the “No-FEAR Act”) (Doc.
41 at 4).
Plaintiffs also invoke “the Diversity of Citizenship”
to support venue in this court.
(Id.)
As to federal question jurisdiction, the court does not lack
authority to act simply because a claim lacks merit or is doubtful.
But “[a] claim is too ‘insubstantial and frivolous’ to support
federal
question
jurisdiction
when
it
is
‘obviously
without
merit.’” Herero People’s Reparations Corp. v. Deutsche Bank, A.G.,
370 F.3d 1192, 1194–95 (D.C. Cir. 2004) (quoting Hagans v. Lavine,
415 U.S. 528, 538 (1974)).
The four federal statutes Plaintiffs
invoke are largely irrelevant to the harms they allege and clearly
provide them no relief. 1
The court will address each in turn.
1
Even if this court’s jurisdiction were debatable, the utter lack of
factual support for the federal claims would not alter the conclusion
6
Title VII of the Civil Rights Act of 1964 protects employees
from certain types of discrimination in employment and prohibits
an employer from “discharg[ing] any individual, or otherwise . . .
discriminat[ing]
compensation,
against
terms,
any
individual
conditions,
or
with
respect
privileges
based on a protected characteristic.
of
to
his
employment”
Coleman v. Md. Ct. of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing 42 U.S.C.
§ 2000e–2(a)), aff’d sub nom. Coleman v. Ct. of Appeals of Md.,
566 U.S. 30 (2012).
Plaintiffs do not allege that any Defendant
employed them (see generally Doc. 41 at 5-10), so Title VII does
not apply to their claims.
Furthermore, Plaintiffs do not allege
that they have sought relief from the Equal Employment Opportunity
Commission – a prerequisite to filing a Title VII lawsuit in
federal
court,
and
“federal
courts
lack
subject
matter
jurisdiction over Title VII claims for which a plaintiff has failed
to exhaust administrative remedies,” Balas v. Huntington Ingalls
Indus.,
Inc.,
711
F.3d
401,
406
(4th
Cir.
2013)
(citations
omitted).
that dismissal is warranted. In addition, only Plaintiff Barbara Summey
Marshall has signed the amended complaint. Pro se litigants must each
sign the complaint, and no pro se litigant can purport to represent
anyone else. See Fed. R. Civ. P. 11(a). The other two Plaintiffs have
attempted to remedy this defect with yet another amended complaint.
(Doc. 68). The motion to amend is futile, however, because even if the
court granted it, the proposed amended complaint does not cure the
defects in the purported federal claims. See Laber v. Harvey, 438 F.3d
404, 426 (4th Cir. 2006) (en banc) (leave to amend complaint may be
denied when the amendment would be futile).
7
Plaintiffs also invoke the ADA, which “makes it unlawful to
discriminate
against
transportation,
people
public
governmental activities.”
with
disabilities
accommodation,
in
employment,
communications,
and
Williams v. Progressive Ins. Co., No.
4:16-CV-01214 JAR, 2017 WL 1155894, at *1 (E.D. Mo. Mar. 28, 2017).
Plaintiffs allege that they are disabled but go no further, failing
to describe their impairments and failing to identify a “major
life activity” those impairments limit.
See 42 U.S.C. § 12102(1)
(defining “disability” for the ADA’s purposes).
Plaintiffs do not
allege that any Defendant employed any Plaintiff or that any
Defendant is engaged in transportation or public accommodation.
Plaintiffs name as Defendants the Sheriff of Cumberland County,
North Carolina, and the Mayor of Fayetteville, North Carolina, but
they have not sued any public entity for the ADA’s purposes.
See
Green v. City of N.Y., 465 F.3d 65, 76 (2d Cir. 2006) (“[T]he
principal actor in this case[] is not a proper defendant because
he is an individual, not a public entity.” (citation omitted)).
The ADA’s communications provisions apply only to hearing- and
speech-impaired individuals, see 47 U.S.C. § 225, and Plaintiffs
do not allege that they or anyone else involved in this dispute
suffer from such an impairment.
Likewise, the FHAA applies only to discriminatory housing
practices.
See 42 U.S.C. § 3604; Martin v. Brondum, 535 F. App’x
242, 244 (4th Cir. 2013) (“[T]he Fair Housing Act . . . provides
8
that it shall be unlawful: ‘To refuse to sell or rent after the
making of a bona fide offer, or to refuse to negotiate for the
sale or rental of, or otherwise make unavailable or deny, a
dwelling to any person because of race, color, religion, sex,
familial
status,
or
national
origin.’
In
addition,
the
FHA
prohibits representing ‘to any person because of race, color,
religion, sex, handicap, familial status, or national origin that
any dwelling is not available for inspection, sale, or rental when
such
dwelling
is
in
§§ 3604(a), 3604(d))). 2
fact
so
available.’”
(quoting
42
U.S.C.
Plaintiffs do not allege that they sought
housing from any Defendant or that any Defendant provides or
markets housing in any way.
Finally, the No-FEAR Act “does not provide a private cause of
action.”
Williams v. Spencer, 883 F. Supp. 2d 165, 182 (D.D.C.
2012) (citations omitted).
Its invocation here is therefore
frivolous.
Consequently, this court lacks subject matter jurisdiction
over Plaintiffs’ federal claims.
The amended complaint does not
denominate any claim under State law.
However, to the extent any
such claim could be construed, under 28 U.S.C. § 1367(c) a federal
2
Unpublished opinions of the Fourth Circuit are not precedential. See
Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006)
(recognizing that “we ordinarily do not accord precedential value to our
unpublished decisions” and that such decisions “are entitled only to the
weight they generate by the persuasiveness of their reasoning” (citation
omitted)).
9
district court “may decline to exercise supplemental jurisdiction”
over State-law claims if “the district court has dismissed all
claims over which it has original jurisdiction.”
The Fourth
Circuit has noted in a similar circumstance that “[w]ith all its
federal questions gone, there may be the authority to keep [the
case] in federal court[,] . . . but there is no good reason to do
so.”
Waybright v. Frederick Cty., Md., 528 F.3d 199, 209 (4th
Cir. 2008).
Because the court will dismiss Plaintiffs’ federal
claims, it will decline to exercise supplemental jurisdiction over
any potential State-law claim.
To the extent State-law claims may
exist, therefore, they will be dismissed without prejudice.
Plaintiffs
do
not
invoke
diversity-of-citizenship
jurisdiction except as a basis for venue.
(Doc. 41 at 4; Doc. 78
at 10.) Even so, this court obviously lacks diversity jurisdiction
over the case.
Plaintiffs allege that they have suffered economic
harm but do not allege or offer any evidence as to the dollar
amount of damages they have suffered.
13.)
They therefore fail to satisfy the amount-in-controversy
requirement.
to
(Doc. 41 at 10; Doc. 78 at
allege
Defendants.
See 28 U.S.C. § 1332(a).
complete
diversity
According
to
among
the
Further, Plaintiffs fail
all
amended
Plaintiffs reside in North Carolina.
Plaintiffs
complaint,
(Doc. 41 at 4.)
and
all
all
three
The amended
complaint does not make allegations pertaining to any Defendant’s
citizenship, except to state that “[a]t least one or more of the
10
Defendants is from outside of the geographical location of the
state of North Carolina.”
Defendants
addresses,
identifies
however.
(Id. at 4.)
ten
(Doc.
Plaintiffs’ own listing of
Defendants
41
at
with
12-13.)
North
To
be
Carolina
sure,
one
Defendant, Laressa Witt, has lived in North Carolina for at least
three
years.
(Doc.
20-1
at
1.)
This
destroys
diversity
jurisdiction, as “[a] case falls within the federal district
court’s
original
diversity
jurisdiction
only
if
diversity
of
citizenship among the parties is complete, i.e., only if there is
no plaintiff and no defendant who are citizens of the same State.”
Wis.
Dep’t
of
Corr.
v.
Schacht,
524
U.S.
381,
388,
(1998)
(citations and internal quotation marks omitted).
III. CONCLUSION
For the reasons noted,
IT IS THEREFORE ORDERED that Defendants’ motions to dismiss
to the extent they are based on this court’s lack of jurisdiction
over the amended complaint’s federal claims or, in the alternative,
failure to state a claim as to them (Docs. 41, 48, 51, 56, 59, 62,
and 73) are GRANTED, and the amended complaint (Doc. 41) is
DISMISSED WITHOUT PREJUDICE AS TO ALL DEFENDANTS.
Plaintiffs’
motion to amend the complaint (Doc. 68) is DENIED as futile.
Plaintiffs’ motions for hearing are DENIED on the grounds they
would not aid in the decisional process.
are DENIED WITHOUT PREJUDICE AS MOOT.
11
All remaining motions
/s/
Thomas D. Schroeder
United States District Judge
June 26, 2017
12
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