Cooper v. Johnson et al

Filing 60

ROSEBORO ORDER that pltf file written response to defts' 51 MOTION to Dismiss for Lack of Jurisdiction, 54 MOTION to Dismiss (Responses due by 11/14/2011).. Signed by Magistrate Judge Dennis Howell on 11/4/2011 (Pro se litigant served by US Mail.)(pdf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv102
THALIA D. COOPER,

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Plaintiff,
v.
LISA JOHNSON, et al.
Defendants.
_______________________________

ROSEBORO
ORDER

Pending before the Court are the Motion to Dismiss [# 51] filed by Defendants
Gresham Barrett, Lindsey Graham, and the U.S. Legislature and the Motion to
Dismiss [# 54] filed by Defendant State of North Carolina. Plaintiff is proceeding pro
se and will be advised of her obligation to respond and the time for doing so.
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Plaintiff, is cautioned that Defendants Gresham Barrett, Lindsey Graham, the U.S.
Legislature (the “Federal Defendants”), and the State of North Carolina have filed two
Motions to Dismiss. The Federal Defendants contend that Plaintiff has failed to
perfect service on her as required by Rule 4 of the Federal Rules of Civil Procedure,
that the claims against the Federal Defendants are barred by the doctrine of
congressional immunity, that Plaintiff did not exhaust her administrative remedies
under the Federal Tort Claims Act, that the Court lacks person jurisdiction over them,
and that the Complaint does not state a claim. The State of North Carolina contends
that dismissal is warranted pursuant to the doctrine of sovereign immunity, the

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Rooker-Feldman doctrine, Plaintiff did not perfect service of process, and the
Complaint fails to state a claim. Although this Court has previously explained
Plaintiffs duty to respond to a motion to dismiss in connection with the motions to
dismiss filed by the other Defendants, the Court will again caution Plaintiff regarding
the two additional motions.
Rule 12(b)(6), Federal Rules of Civil Procedure, provides for dismissal where
a party has failed to state a cause of action as a matter of law. This language means
that in responding to the motion to dismiss, Plaintiff must show that she has made
sufficient allegations to support a cause of action against such defendant that is
recognized by law.

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the

Court held that to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege
facts in her complaint that “raise a right to relief above the speculative level.” Id., at
555.
[A] plaintiff’s obligation to provide the “grounds” of his “entitle[ment]
to relief” requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do . . . .
Id. (second alteration in original; citation omitted). Further, a complaint will not
survive Rule 12(b)(6) review where it contains “naked assertion[s] devoid of further
factual enhancement.” Id., at 557. Instead, a plaintiff must now plead sufficient facts
to state a claim for relief that is “plausible on its face.” Id., at 570 (emphasis added).
The Court again visited the Rule 12(b)(6) pleading standard in Ashcroft v. Iqbal, ___
U.S. ___, 129 S. Ct. 1937 (2009). In Ashcroft, the Court held that Rule 8 “demands
more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id., S. Ct.,

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at 1949. The Court explained that, “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.’” Id. (citing Twombly, supra; emphasis added). What is
plausible is defined by the Court:
[a] claim has facial plausibility when the plaintiff pleads sufficient
factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.
Id.

This “plausibility standard” requires “more than a sheer possibility that a

defendant has acted unlawfully.” Id. Thus, a complaint falls short of the plausibility
standard where plaintiff “pleads facts that are ‘merely consistent with’ a defendant’s
liability . . . .” Id. While the court accepts plausible factual allegations made in the
Complaint as true and considers those facts in the light most favorable to plaintiff in
ruling on a motion to dismiss, a court "need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments." Eastern Shore Mkt.'s Inc. v. J.D. Assoc.'s,
LLP, 213 F. 3d 175, 180 (4th Cir. 2000).
Moreover, Rule 4 of the Federal Rules of Civil Procedure sets out the proper
procedure for perfecting service on a party. If a plaintiff fails to perfect service on a
party, the Court may lack personal jurisdiction over that party and the claims asserted
against them may be subject to dismissal pursuant to Rule 12(b)(2) and (5) of the
Federal Rules of Civil Procedure. Accordingly, Plaintiff should demonstrate in her
response that she perfected service on Defendants as required by the Federal Rules.

Finally, Plaintiff is advised that the method for responding requires her filing

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a separate written “response” to Defendants’ motions within the time allowed by this
Order. A copy of such response must be sent to counsel for all other parties, and
Plaintiff must certify that she has made such service in a “certificate of service”
indicating the manner in which such service was made. In her response, Plaintiff
should address each of the issues raised in Defendants’ Motions to Dismiss.

ORDER
IT IS, THEREFORE, ORDERED that Plaintiff file her written response to
Defendants’ Motions to Dismiss [# 51 & # 54] not later than November 14, 2011.

Signed: November 4, 2011

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