# Hammonds v. State of North Carolina Department of Transportation of Division of Motor Vehicles

> District Court, E.D. North Carolina · November 12, 2019

URL: https://www.frixlaw.com/law-library/cases/10250883

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** November 12, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION

NO. 7:19-CV-72-FL

DANNY RAY HAMMONDS, )
)
Plaintiff, )
)
v. )
) ORDER
STATE OF NORTH CAROLINA )
DEPARTMENT OF TRANSPORTATION )
OF DIVISION OF MOTOR VEHICLES, )
)
Defendant. )

This matter is before the court upon defendant’s motion to dismiss for lack of jurisdiction,
insufficient service, and failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(2), (4), (5), and (6). (DE 9). Plaintiff responded in opposition and separately filed a motion
entitled as one “to resolve” a driving record issue. (DE 19). In this posture, the issues raised are
ripe for ruling. For the following reasons, defendant’s motion is granted and plaintiff’s motion is
denied.
STATEMENT OF THE CASE
Plaintiff commenced this action on April 18, 2019, by filing a complaint form and a civil
cover sheet identifying a claim under the False Claims Act, 31 U.S.C. §§ 3729-3733, on the basis
of “false claims on driving record.” (DE 1-1). Plaintiff does not allege any facts in the complaint.
Plaintiff appears to seek injunctive relief and does not assert monetary damages.
Defendant filed the instant motion to dismiss on June 13, 2019, asserting the complaint
should be dismissed for insufficiency of process and service of process, resulting in lack of
personal jurisdiction. In addition, defendant asserts that plaintiff fails to allege sufficient facts or
state an actionable claim against defendant. Finally, defendant asserts the Eleventh Amendment
bars suit against defendant absent alleged waiver of sovereign immunity. After extension, plaintiff
responded in opposition to defendant’s motion on August 19, 2019. Plaintiff filed the instant
motion to resolve on October 15, 2019, attaching correspondence and seeking deletion of a

negative mark on his driving record.
COURT’S DISCUSSION
A. Standard of Review
Rules 12(b)(2), (4), and (5), allow for dismissal of a complaint for lack of personal
jurisdiction, insufficient process, and insufficient service of process. The court lacks personal
jurisdiction over a defendant that has not been served properly. See Murphy Bros., Inc. v. Michetti
Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). A plaintiff bears the burden of establishing that
process has been served if challenged. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.
1993).

“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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. In evaluating whether a claim is stated, the “court accepts all well pled facts as true
and construes these facts in the light most favorable to the plaintiff,” but does not consider “legal
conclusions, elements of a cause of action, . . . bare assertions devoid of further factual
enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations
omitted).
B. Analysis
1. Service
“The plaintiff is responsible for having the summons and complaint served within the time

allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.”
Fed. R. Civ. P. 4(c)(1). Rule 4(j) provides standards for serving a state government defendant.
Here, plaintiff has provided no proof of service and has not evidence that he served defendant
properly with either the complaint or summons. Therefore, this matter must be dismissed without
prejudice for insufficient service, insufficient service of process, and lack of personal jurisdiction.
2. Failure to State a Claim
Federal Rule of Civil Procedure 8(a) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Here, where the complaint
does not contain factual allegations, plaintiff has not met this basic pleading requirement.

Plaintiff suggests in his opposition to motion to dismiss and in his motion to resolve that
he seeks to amend his complaint to assert a claim that defendant failed to correct information in
his driving record, particularly a 1994 driving record where plaintiff “was accused of . . . failure
to give correct information, Indefinite cancellation, and . . . failure to pay fine . . . Permanent
Suspended.” (DE 18 at 1-2). Plaintiff asserts that because there are no documents evidencing the
suspension or cancellation, the “driving Record needs to be deleted.” (DE 19 at 2).
Leave to amend must be freely given when justice so requires, and “should be denied only
when the amendment would be prejudicial to the opposing party, there has been bad faith on the
part of the moving party, or the amendment would have been futile.” Laber v. Harvey, 438 F.3d
404, 426 (4th Cir. 2006) (en banc). Amendment is futile “if the proposed amended complaint fails
to state a claim under the applicable rules and accompanying standards.” Katyle v. Penn Nat.
Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011).
Construing plaintiff’s filings liberally as seeking to amend the complaint to assert a claim
based upon failure to delete or cancel his driving records, the motion must be denied as futile.

Plaintiff’s allegations fail to state a claim for multiple reasons. First, while plaintiff checks the
box on the civil cover sheet for a claim under the False Claims Act, such a claim arises from the
submission of a fraudulent claim to the government, not the failure by the government to maintain
or delete records. See Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (2005). In addition, plaintiff
does not plead facts necessary to allege circumstances constituting fraud, including time, place,
and contents of false representation, as well as identity of the person making the representation.
U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008).
Absent the False Claims Act as a basis for a claim, the complaint suffers a fundamental
defect in that there is no federal question stated and no basis for federal jurisdiction over the case.

“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among
non-diverse litigants.” Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999). Plaintiff appears
to be asserting a claim more properly directed to a state court upon exhaustion of state
administrative remedies. In addition, where plaintiff has alleged no waiver of sovereign immunity,
the Eleventh Amendment bars suit against the state or its agencies in this federal United States
District Court, regardless of the nature of relief sought. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984).
In sum, this court lacks jurisdiction over defendant, plaintiff fails to state a claim either as
pleaded or through proposed amendment, and it is doubtful that there is federal subject matter
jurisdiction over this case. Where plaintiff's action suffers from these multiple defects, and where
the court already has considered proposed amendment to plaintiffs claims through plaintiff's
response and motion to resolve, further amendment is futile and dismissal must be with prejudice.
CONCLUSION
Based on the foregoing, defendant’s motion to dismiss (DE 9) is GRANTED. Plaintiff's
motion to resolve (DE 19), construed as including a motion to amend complaint, is DENIED.
Plaintiff's action is DISMISSED WITH PREJUDICE. The clerk is DIRECTED to close this case.
SO ORDERED, this the 12th day of November, 2019.

United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10250883. Public record. Not legal advice.