Boyd v. Miller Pipeline et al
ORDER Plaintiff may respond to Defendant's 10 MOTION to Dismiss on or before 10/27/16. Signed by Chief Judge Frank D. Whitney on 10/13/16. (Pro se litigant served by US Mail at Plaintiff's address of record)(ssh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:16-cv-00278-FDW-DSC
MILLER PIPELINE, CORP.,
ORDER and NOTICE
THIS MATTER is before the Court sua sponte following the filing of Defendant’s Motion
to Dismiss or, in the Alternative, Motion to Strike (Doc. No. 10), filed September 9, 2016.
Defendant’s Motion seeks dismissal pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules
of Civil Procedure.
Plaintiff, who appears pro se in this matter, has failed to respond to the
pending motion. Despite the passing of the response deadline, the Court typically provides notice
to pro se parties of the burden they carry in responding to dispositive motions and therefore will
extend the response deadline here to allow Plaintiff an opportunity to respond to the pending
In accordance with the principles set forth in Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), the Court advises Plaintiff, who is proceeding pro se, of the burden he carries in responding
The Fourth Circuit did not hold in Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that such notice is required
for motions to dismiss. Rather, the Fourth Circuit’s discussion in Roseboro regarding notice was directed to summary
judgment motions. See Roseboro, 528 F.2d at 310 (“We agree with the plaintiff, however, that there is another side
to the coin which requires that the plaintiff be advised of his right to file counter-affidavits or other responsive material
and alerted to the fact that his failure to so respond might result in the entry of summary judgment against him.”); see
also Norman v. Taylor, 25 F.3d 1259, 1261 (4th Cir. 1994) (“In Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
this circuit held that pro se plaintiffs must be advised that their failure to file responsive material when a defendant
moves for summary judgment may well result in entry of summary judgment against them.”). Nevertheless, courts
routinely issue Roseboro notices for motions to dismiss, and the Court does so here.
to Defendant’s motion. The Court also advises Plaintiff that failure to respond may result in
dismissal of the complaint.
Fed. R. Civ. Pro. 12(b)(1)
Defendant moves to dismiss the complaint pursuant to Fed. R. Civ. Pro. 12(b)(1)
contending that this Court lacks subject matter jurisdiction over Plaintiff’s claims. Plaintiff is
advised that Rule 12(b)(1) provides for dismissal of claims against all defendants where the Court
lacks jurisdiction over the subject matter of the lawsuit. Lack of subject matter jurisdiction may
be raised at any time either by a litigant or the court. Mansfield, C. & L.M.R. Co. v. Swan, 111
U.S. 379, 382 (1884). The ability of the court to independently address subject matter jurisdiction
is important to finality inasmuch as a litigant, even one who remains silent on the issue of
jurisdiction, may wait until they receive an adverse judgment from a district court and raise the
issue of subject matter jurisdiction for the first time on appeal, thereby voiding the judgment.
Capron v. Van Noorden, 2 Cranch 126, 127, 2 L.Ed. 229 (1804). The Federal Rules of Civil
Procedure anticipate this issue and provide that “If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”
Fed. R. Civ. Pro. 12(h)(3)
When a court considers its subject matter jurisdiction, the burden of proof is on the plaintiff.
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In Richmond, Fredricksburg & Potomac
R.R. Co. V. United States, 945 F.2d 765 (4th Cir. 1991) (Ervin, C.J.), the Court of Appeals for the
Fourth Circuit held, as follows:
In determining whether jurisdiction exists, the district court is to regard the
pleadings' allegations as mere evidence on the issue, and may consider evidence
outside the pleadings without converting the proceeding to one for summary
judgment. Id; Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1558
(9th Cir.1987). The district court should apply the standard applicable to a motion
for summary judgment, under which the nonmoving party must set forth specific
facts beyond the pleadings to show that a genuine issue of material fact exists.
Trentacosta, supra, 813 F.2d at 1559 (citing Celotex Corp. v. Catrett, 477 U.S. 317,
323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). The moving party
should prevail only if the material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of law. Trentacosta, supra, 813 F.2d
at 1558. A district court order dismissing a case on the grounds that the undisputed
facts establish a lack of subject matter jurisdiction is a legal determination subject
to de novo appellate review. Revene v. Charles County Comm'rs, 882 F.2d 870,
872 (4th Cir.1989); Shultz v. Dept. of the Army, 886 F.2d 1157, 1159 (9th
Id., at 768-69. Plaintiff is entitled to present evidence outside the pleadings if it is helpful to
establishing subject matter jurisdiction in response to Defendant’s Motion.
Fed. R. Civ. Pro. 12(b)(6)
Defendant also moves to dismiss the Complaint for failure to state a claim for relief
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff must show in his
response to Defendant’s motion that the complaint contains sufficient allegations to support a
cause of action against Defendant. In order to survive a 12(b)(6) motion to dismiss for failure to
state a claim upon which relief can be granted, Plaintiff’s “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 570). “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.
at 556). While the Court accepts plausible factual allegations in the complaint as true and considers
those facts in the light most favorable to a 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). A court cannot “accept
as true allegations that contradict matters properly subject to judicial notice or by exhibit.” Venev
v. Wyche, 293 F. 3d 726, 730 (4th Cir. 2002) (citations and internal quotations omitted).
Deadline to Respond
Plaintiff is advised that he has until Friday, October 27, 2016, to file a response to
Defendant’s motion in light of the above standards. Plaintiff’s response must be properly served
on Defendant and must include a certificate of service indicating the manner in which Plaintiff
served Defendant. Defendant shall have seven (7) days after the filing of any response by Plaintiff
to submit a reply. Plaintiff’s failure to respond may result in Defendant being granted the
relief it seeks, that is dismissal of the complaint.
IT IS THEREFORE ORDERED that Plaintiff may respond to Defendant’s Motion to
Dismiss (Doc. No. 10) on or before October 27, 2016. Failure to file a timely and persuasive
response could lead to the dismissal of Plaintiff’s lawsuit against Defendant.
The Clerk is respectfully DIRECTED to send a copy of this Notice and Order to Plaintiff’s
address of record.
IT IS SO ORDERED.
Signed: October 13, 2016
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