“[A]bsence of prejudice alone can never constitute good cause to excuse late service.”
How later courts described this case
- “[A]bsence of prejudice alone can never constitute good cause to excuse late service.”
- holding that pro se plaintiff’s lack of knowledge of service procedures did not constitute good cause for his failing to perfect service upon defendant within the required time period
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:20-CV-230-FL
DANIEL J. WILLIS, )
)
Plaintiff, )
)
v. )
)
ORDER
JONES COUNTY BOARD OF )
ELECTIONS and NORTH CAROLINA )
STATE BOARD OF ELECTIONS, and/or )
their successors, )
)
Defendants. )
This matter is before the court on defendant North Carolina State Board of Elections’s
(“NCSBE”) motion to dismiss (DE 21) and on plaintiff’s response to the court’s April 21, 2021,
order (DE 30). The court also reviews the action in accordance with the pre-filing injunction
entered in this district on April 5, 2002. For the following reasons, the court dismisses the instant
action on the basis of the court’s pre-filing injunction. In addition, and in the alternative, defendant
NCSBE’s motion is granted, and the court adheres to its prior dismissal of defendant Jones County
Board of Elections for failure to serve.
STATEMENT OF THE CASE
Plaintiff commenced this action pro se on December 10, 2020, asserting claims against
defendants arising out of the at-large election method used by the Town of Trenton, North
Carolina, (“the Town of Trenton”), to elect its aldermen.1 Plaintiff brings claims under the Fifth,
Fourteenth, and Fifteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and
Section 2 of the Voting Rights Act2 (“VRA”). Plaintiff seeks a court order enjoining defendants
from conducting elections by the current method, “award[ing] plaintiff[] four . . . districts, two . . .
districts White only, and two . . . districts minority only,” attorney’s fees, and $15,000,000 in
damages. (First Am. Compl. at 15).
This is not the first time plaintiff has brought a federal suit concerning the Town of Trenton,
and it is not even his first time challenging the at-large election method the Town of Trenton
allegedly uses. See Order, Willis v. Town of Trenton, No. 4:19-MC-1 (E.D.N.C. Oct. 8, 2020);
Willis v. Town of Trenton, No. 4:13-MC-5, 2014 WL 11497895, at *1 (E.D.N.C. Aug. 12, 2014)
(summarizing plaintiff’s prior filings). Rather, plaintiff has an “exceptional history of frivolous
filings and appeals in the federal court.” Willis v. Jones Cty. Pub. Sch., No. 4:20-CV-00203-M,
2021 WL 837342, at *1 (E.D.N.C. Feb. 19, 2021). Plaintiff’s conduct has resulted in two prefiling
injunctions entered against him. First, this court has enjoined plaintiff “from filing any additional
cases in this district involving the Town of Trenton or [former mayor thereof] without prior
approval of the court.” Order, Willis v. Town of Trenton, Nos. 4:96-CV-6-H(4), 4:99-CV-116-
H(4), 4:01-CV-13-H(4), 4:01-CV-133-H(4), 4:01-CV-159-H(4) (E.D.N.C. Apr. 5, 2002), aff’d, 50
F. App’x 648 (4th Cir. 2002). Second, the Fourth Circuit has enjoined plaintiff “from filing
pleadings in any pending lawsuit, or commencing, or attempting to initiate any new lawsuit, action,
1 Plaintiff filed an amended complaint with attached exhibits on January 4, 2021, along with a “corrective
document” the next day. (See (DE 14, 15). Plaintiff then filed another amended complaint February 10, 2021. (DE
20).
2 Plaintiff cites 42 U.S.C. § 10301 as the relevant U.S. Code section. However, plaintiff presumably intended
or intends to reference 52 U.S.C. § 10301, the codified section of VRA that prohibits the denial or abridgement of the
right to vote on account of race or color through voting qualifications or prerequisites, rather than 42 U.S.C. § 10301,
which concerns congressional findings and declarations regarding the Water Resources Research Act of 1984.
proceeding, or matter in the United States District Court for the Eastern District of North Carolina
against any person or entity in forma pauperis without first obtaining leave of the court to so
proceed.” Willis v. Town of Trenton, No. 96-2066 (4th Cir. Mar. 17, 1997).3
On February 18, 2021, defendant NCSBE filed the instant motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1), (2), and (6), relying upon an exhibit comprising an
excerpt of the Private Laws of the State of North Carolina, 1911 Session (Jan. 4, 1911). Plaintiff
responded in opposition on March 5, 2021.
On March 18, 2021, the court gave notice to plaintiff that more than 90 days had passed
since he filed his complaint, but defendant Jones County Board of Elections had not been served
with process. The court directed plaintiff to show good cause for this failure within 14 days,
pursuant to Rule 4(m) (hereinafter, the “March 18, 2021, show cause order”). Plaintiff did not do
so, and on April 14, 2021, the court dismissed his claims against defendant Jones County Board
of Elections without prejudice (hereinafter, the “April 14, 2021, order”).
On April 19, 2021, plaintiff filed a document asserting that he had never received the March
18, 2021, show cause order. Thus, on April 21, 2021, the court allowed plaintiff an additional 14
days to make the requisite showing (hereinafter, the “April 21, 2021, order”). On April 23, 2021,
the clerk sent a letter to plaintiff memorializing a telephone call from plaintiff to the clerk’s office
requesting that the clerk provide a completed summons. Plaintiff then filed a response to the
court’s April 21, 2021, order on April 27, 2021.
3 In this case, plaintiff did not move to proceed in forma pauperis, and plaintiff did not name originally the
Town of Trenton or its former mayor as defendants. Accordingly, the court did not review the case initially for
compliance with the pre-filing injunctions. Nevertheless, the court denied a motion by plaintiff to add the Town of
Trenton as a defendant in this action, on February 24, 2021 (DE 25).
STATEMENT OF FACTS
The facts alleged in plaintiff’s operative complaint4 may be summarized as follows.
Plaintiff alleges that the at-large voting method of election of aldermen in the Town of Trenton
dilutes minority voting power. (First Am. Compl. ¶ 1). Plaintiff asserts that there are “racially
polarized voting patterns in the town.” (Id. ¶ 4). As further context, plaintiff asserts that “African-
Americans have never, ever, had an African-American of their choice elected or appointed to the
Town of Trenton’s Council [as Aldermen].” (Id. ¶ 23 (alteration in original)).
COURT’S DISCUSSION
A. Pre-Filing Injunction
On the court’s own initiative, the court reviews the instant action for compliance with the
court’s pre-filing injunction. As noted previously, this court has enjoined plaintiff “from filing
any additional cases in this district involving the Town of Trenton or [former mayor thereof]
without prior approval of the court.” Order, Willis v. Town of Trenton, Nos. 4:96-CV-6-H(4),
4:99-CV-116-H(4), 4:01-CV-13-H(4), 4:01-CV-133-H(4), 4:01-CV-159-H(4) (E.D.N.C. Apr. 5,
2002), aff’d, 50 F. App’x 648 (4th Cir. 2002). Although the Town of Trenton and former mayor
thereof are not named as defendants, the instant case involves the Town of Trenton. Therefore,
plaintiff’s commencement of this action without prior approval of the court was in violation of the
court’s pre-filing injunction. In addition, the court finds no good cause for allowing filing of the
instant action, in light of plaintiff’s recent additional attempts to commence actions involving the
Town of Trenton, and the legal deficiencies in plaintiff’s complaint, as detailed further herein.
4 Rule 15(a) allows a party to amend its pleadings once as a matter of course, if the pleading is one to which a
responsive pleading is required, within 21 days of service of a responsive pleading or within 21 days of service of
certain Rule 12 motions. Because plaintiff’s January 4, 2021, amendment was timely, it effectively amended
plaintiff’s pleadings and did so as a matter of course. However, the later corrective document (DE 15) and second
amended complaint (DE 20) required leave of court to be filed. Plaintiff did not so move and, therefore, those filings
did not amend his pleadings.
In sum, the court DISMISSES the instant action on the basis of the court’s pre-filing
injunction.
B. Defendant NCSBE’s Motion to Dismiss
In addition, and in the alternative, the court agrees with defendant NCSBE that plaintiff’s
claims against it should be dismissed because plaintiff fails to state a claim upon which relief can
be granted.5
To survive a motion to dismiss under Rule 12(b)(6), “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) (quotations
omitted).
5 Defendant NCSBE also argues that dismissal is warranted because of its sovereign immunity under the
Eleventh Amendment, and because plaintiff lacks standing, under Rule 12(b)(1). The court does not dismiss the
instant action on these grounds, however, where the issue of whether Congress abrogated states’ sovereign immunity
through the passage of the VRA has not been decided by the United States Court of Appeals for the Fourth Circuit.
See, e.g., N.C. State Conf. of NAACP v. Cooper, 397 F. Supp. 3d 786, 799 (M.D.N.C. 2019) (explaining that “in the
absence of a determination by the Fourth Circuit or the Supreme Court that the VRA abrogates North Carolina’s
Eleventh Amendment immunity, this Court declines to so hold”). In addition, defendant NCSBE’s Article III standing
argument premised on a lack of traceability and redressability is not subject to straightforward resolution, given the
interaction between provisions of North Carolina law allowing local units of government to implement certain local
election procedures, see, e.g., N.C. Gen. Stat. §§ 160A-66, 101(6), 102; and other provisions of law setting forth
defendant’s own statutory powers and duties, such as the authority to impose a plan apportioning districts adopted by
the appropriate unit of local government under statutory or local act authority, see, e.g., N.C. Gen. Stat. § 163-22(r).
In light of dismissal under Rule 12(b)(6), the court also does not reach other potential grounds for dismissal under
Rule 12(b)(2).
Here, the operative complaint does not contain specific factual allegations relevant to
defendant NCSBE’s purported conduct and, instead, mentions defendant NCSBE in conjunction
with legal conclusions and generally conclusory statements of liability, which the court cannot
credit in its analysis. (See, e.g., First Am. Compl. ¶ 2 (“Jones County Board of Elections, and the
North Carolina State Board of Elections are proper defendants in this case.”); ¶ 13 (“Section 2
prohibits local governments, such as the Town of Trenton, and the Jones County Board of
Elections and the North Carolina State Board of Elections . . . from adopting practices, procedures
that dilute the plaintiff’s voting strength, as complained of, in ‘past and present’ actions.”); ¶ 21
(“The discrimination by . . . the North Carolina State Board of Elections . . . is not a private matter
but amounts to unconstitutional state action.”).
Plaintiff’s most specific factual allegation in the original complaint regarding defendant
NCSBE — that it, along with defendant Jones County Board of Elections, enforces the at-large
election method used by the Town of Trenton — is omitted from the amended complaint. (See
Compl. ¶ 1; First Am. Compl. ¶ 1-51; see also Compl. ¶ 4 (“The Jones County Board of Elections,
along with the enforcement of the North Carolina State Board of Elections, altogether, while in
conspiracy, and acting under color of law, had intentionally and officially enforced the at-large
election methods, and vote dilutions, past and present . . . .”)). Even if that allegation were
included in the operative complaint, however, it is a bare assertion not joined by further factual
enhancement and is therefore not credited by the court in analyzing whether plaintiff has stated a
claim.6
6 Even assuming plaintiff had properly amended his complaint through his January 5, 2021, and February 10,
2021, filings, the court’s review of those filings does not reveal additional factual allegations that would change the
court’s analysis.
Plaintiff’s claim then that defendant NCSBE violated either the VRA or a provision of the
United States Constitution, as actionable under 42 U.S.C. § 1983, lacks the requisite factual
support needed for a plausible claim. Case law prohibits the court from relying on plaintiff’s
conclusory statements and its own speculation in order to allow plaintiff to proceed with this
litigation. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555 & 570.
Therefore, the court grants defendant NCSBE’s motion and dismisses plaintiff’s claims for
failure to state a claim upon which relief can be granted.
C. Continued Failure to Timely Serve Defendant Jones County Board of Elections
The court’s April 21, 2021, order allowed plaintiff 14 days to show good cause for failure
to timely serve defendant Jones County Board of Elections. Plaintiff’s response filed April 27,
2021, does not provide the requisite good cause for plaintiff’s failure to timely serve that defendant.
The filing suggests that plaintiff’s failure to timely serve is excused because the court failed to
give him summons to serve on defendant Jones County Board of Elections and because defendant
Jones County Board of Elections has not been prejudiced by his failure to serve. For the following
reasons, the court does not find that either rationale meets the requisite good cause under Rule
4(m) and, accordingly, finds no reason to alter its April 14, 2021, order dismissing plaintiff’s
claims against Jones County Board of Elections without prejudice.
As an initial matter, pro se parties, like any other party, are required to adhere to the Federal
Rules of Civil Procedure, the Local Civil Rules, and the orders of this court. See McNeil v. United
States, 508 U.S. 106, 113 (1993). Therefore, plaintiff was required under Rule 4 to “present a
summons to the clerk,” which the clerk is only able to “sign, seal, and issue . . . to the plaintiff for
service on the defendant” if it is “properly completed.” Fed. R. Civ. P. 4(b). Plaintiff did not do
so for defendant Jones County Board of Elections, meaning his claim that the court failed to
provide him summons fails to evidence good cause for untimely service. See generally Kersh v.
Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) (holding that pro se plaintiff’s lack of knowledge
of service procedures did not constitute good cause for his failing to perfect service upon defendant
within the required time period).
Further, insofar as plaintiff’s asserted good cause is based on a purported lack of prejudice
to defendant Jones County Board of Elections, such rationale is inapt. Neither the text of Rule 4
nor the case law interpreting the rule require a finding of prejudice to the unserved defendant
before sua sponte dismissal under Rule 4(m). See, e.g., MCI Telecommunications Corp. v.
Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (“[A]bsence of prejudice alone can never
constitute good cause to excuse late service.”).
In sum, plaintiff has not shown the requisite good cause to excuse his failure to timely serve
defendant Jones County Board of Elections. Therefore, plaintiff’s claims against defendant Jones
County Board of Elections remain dismissed without prejudice in accordance the court’s April 14,
2021, order.
CONCLUSION
Based on the foregoing, the court DISMISSES the instant action on the basis of the court’s
pre-filing injunction. Order, Willis v. Town of Trenton, Nos. 4:96-CV-6-H(4), 4:99-CV-116-H(4),
4:01-CV-13-H(4), 4:01-CV-133-H(4), 4:01-CV-159-H(4) (E.D.N.C. Apr. 5, 2002), aff’d, 50 F.
App’x 648 (4th Cir. 2002).
In addition, and in the alternative, defendant NCSBE’s motion to dismiss (DE 21) is
GRANTED, and plaintiff’s claims against defendant NCSBE are DISMISSED for failure to state
a claim upon which relief can be granted. Further, the court adheres to its April 14, 2021, order
dismissing claims against defendant Jones County Board of Elections pursuant to Rule 4(m).
Accordingly, plaintiffs action is DISMISSED as to all defendants, and the clerk is DIRECTED to
close this case.
SO ORDERED, this the 3rd day of June, 2021.
(Mor Af. Lereger
LOUISE W. FLANAGAN
United States District Judge