WADE v. ALAMANCE COUNTY DEPARTMENT OF SOCIAL SERVICES

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARISHA N. WADE, )

)

Plaintiff, )

)

v. )

) 1:19CV619

ALAMANCE COUNTY DEPARTMENT OF )

SOCIAL SERVICES and GUARDIAN AD )

LITEM ALAMANCE COUNTY, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before the court are several motions filed by Plaintiff

Marisha N. Wade and Defendants Alamance County Department of

Social Services (“Alamance DSS”) and Guardian ad Litem Alamance

County (“GAL”) (collectively “Defendants”). Plaintiff is

proceeding pro se against Defendants for alleged violations of

her constitutional rights stemming from the termination of her

parental rights in a state court proceeding. For the reasons

stated herein, the court finds Plaintiff’s Complaint should be

dismissed without prejudice as to both Defendants.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff’s central allegation is that Defendants lied to

the state trial court about the date on which they received

reports of child neglect by Plaintiff and her partner.

(Complaint (“Compl.”) (Doc. 1) at 5.) That allegedly fictitious

report date was included in a list of stipulations that

Plaintiff signed during the state custody proceedings. (Id.)

Plaintiff was represented by counsel when Plaintiff “agreed to

and signed” the stipulations. (Id.) Plaintiff alleges that this

fictitious report date harmed her in the following way:

Due process was denied the plaintiff due to an early

prejudice the defendants caused the plaintiff. Because

of how long the defendants represented to the district

court that they had been attempting (for one year)

with the parents full knowledge; to initiate, protect

the children, and work with the plaintiff. The court

of first instance had absolutely no tolerance,

lenience, or faith in the plaintiff’s ability to

parent, due to how long the situation had been going

on before it got to them.

(Id. at 7.) The state trial court terminated Plaintiff’s

parental rights, a decision that was ultimately upheld by the

North Carolina Supreme Court. In re D.L.W., 368 N.C. 835, 836,

788 S.E.2d 162, 163–64, reh’g denied, 369 N.C. 43, 789 S.E.2d 5

(2016).

Plaintiff filed her original pro se Complaint with this

court, naming “Alamance County Department of Social Services”

and “Guardian ad Litem Alamance County” as Defendants. (Compl.

(Doc. 1) at 1.) Plaintiff does not seek the reversal of the

state court’s custody determination, but instead seeks damages

for violations of certain constitutional rights.1 (Id. at 7, 10,

13.)

1 In her Complaint and proposed Amended Complaint, Plaintiff

declined to select any jurisdictional basis on the pro se

complaint form used in this court. (Compl. (Doc. 1) at 3; Doc.

27 at 3.) Plaintiff is suing for damages under the Fourth,

Fifth, and Ninth Amendments. The court construes Plaintiff’s

Complaint as an action under 42 U.S.C. § 1983. See Albright v.

Oliver, 510 U.S. 266, 271 (1994) (“Section 1983 is not itself a

source of substantive rights, but merely provides a method for

vindicating federal rights elsewhere conferred.” (internal

quotations and citations omitted)); Laber v. Harvey, 438 F.3d

404, 413 n.3 (4th Cir. 2006) (noting that pro se complaints must

be construed liberally); see also McCauley v. United States, No.

97-5130, 1998 WL 224949, at *1 (Fed. Cir. Apr. 20, 1998) (“With

regard to the alleged constitutional violations, the trial court

held that ‘[a] Fifth or Fourteenth Amendment due process

violation . . . does not create an independent cause of action

for money damages.”); Azul-Pacifico, Inc. v. City of Los

Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (“Plaintiff has no

cause of action directly under the United States

Constitution.”); Foster v. Michigan, 573 F. App’x 377, 391 (6th

Cir. 2014) (“To the extent that Appellants attempt to assert

direct constitutional claims, they fail; we have long held that

§ 1983 provides the exclusive remedy for constitutional

violations.”); Fullard v. Staley, No. 1:15CV16, 2015 WL

13376296, at *2 (M.D.N.C. Jan. 29, 2015), report and

recommendation adopted, No. 1:15CV16, 2016 WL 9080885 (M.D.N.C.

Nov. 29, 2016), aff’d, 687 F. App’x 273 (4th Cir. 2017) (“As for

the Ninth Amendment, it ‘is a rule of interpretation rather than

a source of rights.’” (quoting Froehlich v. State Dep’t of

Corr., 196 F.3d 800, 801 (7th Cir. 1999) (Posner, J.))); Demyun

v. Pa. Dep’t of Corr., No. 300CV155, 2001 WL 1083936, at *2

(M.D. Pa. Sept. 14, 2001) (noting that a plaintiff bringing

Fourth and Fifth Amendment claims against state actors must sue

under § 1983); cf. Norton v. United States, 581 F.2d 390, 392

(4th Cir. 1978) (explaining how plaintiff sued state police

under § 1983, but sued federal officers directly under the

Fourth Amendment in a Bivens action); Khan v. Worcester Cty.,

(Footnote continued)

Plaintiff mailed the summons and Complaint on September 4,

2019. (Doc. 5.) Defendant GAL filed a Motion to Dismiss on

September 26, 2019. (Docs. 7, 8). Defendant Alamance DSS filed a

Motion to Dismiss on October 31, 2019. (Docs. 15, 16.) Both

Defendants moved to dismiss Plaintiff’s Complaint under Fed. R.

Civ. P. 12(b)(2) for lack of personal jurisdiction and Rule

12(b)(5) for insufficient service of process.2 Plaintiff filed a

response, (Doc. 10), to Defendant GAL’s Motion to Dismiss, and a

response, (Doc. 28), to Defendant Alamance DSS’s Motion to

Dismiss.

Plaintiff also filed a Motion for Default Judgment against

Defendant Alamance DSS, (Doc. 11), and a Motion for Default

Judgment against Defendant GAL, (Doc. 12). Defendant Alamance

DSS filed a response to Plaintiff’s Motion for Default against

Defendant Alamance DSS. (Doc. 14.) Defendant GAL filed a

24 F. App’x 183, 187 (4th Cir. 2001) (affirming district court

that dismissed actions brought directly under Fourth Amendment

and not § 1983).

Though the Fifth Amendment Takings Clause may offer an

independent cause of action separate from § 1983, see Lawyer v.

Hilton Head Pub. Serv. Dist. No. 1, 220 F.3d 298, 303 n.4 (4th

Cir. 2000), Plaintiff’s Fifth Amendment claim is brought under

the Due Process Clause, (Compl. (Doc. 1) at 5), an allegation

with its own issues.

2 Defendants also move for dismissal under Rules 12(b)(1),

(4), (6), and (7). The court only addresses Rules 12(b)(2) and

(5).

response to Plaintiff’s Motion for Default against Defendant

GAL. (Doc. 17.)

Plaintiff also filed a Motion for Leave of Court to File an

Amended Summons, asking the court to add Defendant GAL’s “true

attorney Anna M. Davis” and to add Defendant Alamance DSS’s

attorney William L. Hill. (Doc. 20 at 1.) Simultaneously with

her motion to amend her summons, Plaintiff also filed a motion

to file documents electronically. (Doc. 21.)

Finally, Plaintiff filed a Motion for Leave to File Amended

Complaint, (Doc. 26), as well as a proposed Amended Complaint,

(Doc. 27). Defendant Alamance DSS filed a response in opposition

to Plaintiff’s Motion to Amend, (Doc. 31), and Plaintiff filed a

reply, (Doc. 33).

The court finds that Plaintiff’s claims against Defendant

Alamance DSS should be dismissed under Rule 12(b)(2), and her

claims against Defendant GAL should be dismissed under Rule

12(b)(5). All other pending motions will be denied as moot.

II. ANALYSIS

The court first addresses the service of process issues and

then addresses the personal jurisdiction analysis for Defendant

Alamance DSS. Finally, the court will briefly address

Plaintiff’s pending motions.

A. Service of Process

“A motion to dismiss under Rule 12(b)(5) challenges the

sufficiency of service of process.” Spinks v. Cohen, No.

1:19-cv-522, 2020 WL 1676919, at *2 (M.D.N.C. Apr. 6, 2020);

accord Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F. Supp. 519,

526 (M.D.N.C. 1996). The plaintiff bears the burden of proving

that process has been properly served under the Federal Rules of

Civil Procedure. Spinks, 2020 WL 1676919, at *2.

In determining whether the plaintiff has satisfied his

burden, the technical requirements of service should

be construed liberally as long as the defendant had

actual notice of the pending suit. Karlsson v.

Rabinowitz, 318 F.2d 666, 668–69 (4th Cir. 1963).

“When there is actual notice, every technical

violation of the rule or failure of strict compliance

may not invalidate the service of process. But the

rules are there to be followed, and plain requirements

for the means of effecting service of process may not

be ignored.” Armco, Inc. v. Penrod–Stauffer Bldg.

Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984); see

also Tart v. Hudgins, 58 F.R.D. 116, 117 (M.D.N.C.

1972) (observing that a liberal interpretation of

process requirements “does not mean . . . that the

provisions of the Rule may be ignored if the defendant

receives actual notice”).

Elkins v. Broome, 213 F.R.D. 273, 275 (M.D.N.C. 2003).

Fed. R. Civ. P. 4(j)(2) deals with service of process for

“[a] state, a municipal corporation, or any other state-created

governmental organization that is subject to suit . . . .” That

Rule requires that process be served either by “(A) delivering a

copy of the summons and of the complaint to its chief executive

officer; or (B) serving a copy of each in the manner prescribed

by that state’s law for serving a summons or like process on

such a defendant.” Id. 4(j)(2)(A)–(B).

North Carolina law states that service on state

officers or agencies must be made on the designated

process agent, if one exists. N.C. Gen. Stat. § 1A-1,

Rule 4(j)(4). If a process agent has not been

designated, process must be made on the North Carolina

Attorney General or a deputy or assistant Attorney

General, as set out in N.C. Gen. Stat. § 1A-1, Rule

4(j)(4)(c).

Spinks v. Cohen, No. 1:17-cv-875, 2018 WL 6416511, at *2

(M.D.N.C. Dec. 6, 2018) (footnote omitted). A plaintiff suing

“Counties . . . and Other Local Public Bodies” must serve

process on the:

county manager or to the chairman, clerk or any member

of the board of commissioners for such county; by

mailing a copy of the summons and of the complaint,

registered or certified mail, return receipt

requested, addressed to its county manager or to the

chairman, clerk, or any member of this board of

commissioners for such county; or by depositing with a

designated delivery service authorized pursuant to 26

U.S.C. § 7502(f)(2) a copy of the summons and

complaint, addressed to the county manager or to the

chairman, clerk, or any member of the board of

commissioners of that county, delivering to the

addressee, and obtaining a delivery receipt.

N.C. Gen. Stat. 1A-1, Rule 4(j)(5)(b).

Plaintiff has not complied with these rules. Beginning with

Alamance DSS, Plaintiff attempted to serve process on Alamance

DSS by certified mail sent to an address in Burlington. (Doc.

5.) This address is apparently the address for Alamance DSS’s

attorney, Ms. Jamie L. Hamlett. (Doc. 14-1). Ms. Hamlett is not

any of the approved entities under North Carolina Rule of Civil

Procedure 4(j)(5)(b). The Alamance County Manager, Bryan Hagood,

avers that he has still not been served with process. (Doc. 14-2

at 1.) As to Defendant GAL, Plaintiff attempted to serve GAL by

certified mail to an address in Graham, North Carolina. (Doc.

5.) It is not clear from the record who resides at that address.3

It is also not clear if Defendant GAL is a state, county, or

other entity or is a natural person.

Thus, neither the Alamance County Manager, nor the North

Carolina Attorney General, nor a deputy or assistant attorney

general have been served in accordance with N.C. Gen. Stat.

§ 1A-1, Rule 4(j)(4)(c) or 4(j)(5)(b).

When service is ineffective, the Court has discretion

to dismiss the action or quash service. Lisson v. ING

GROEP N.V., 262 F. App’x 567, 571 (5th Cir.

2007); S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d

3 It also appears that Plaintiff herself attempted to serve

process via certified mail. (See Doc. 5.) If so, Plaintiff also

failed to comply with Fed. R. Civ. P. 4(c)(2). See Thomas v.

Nelms, No. 1:09-CV-491, 2013 WL 593419, at *2 (M.D.N.C. Feb. 14,

2013) (“Should Ms. Thomas wish to serve Defendants by certified

mail, she should have any non-party individual, who is over

eighteen, deposit the summons and complaint in an envelope, have

the envelope sent certified mail to Defendants, and sign an

affidavit of service.”).

1288, 1293 (9th Cir. 2006); Marshall v. Warwick, 155

F.3d 1027, 1032–33 (8th Cir. 1998); Umbenhauer v.

Woog, 969 F.2d 25, 30–31 (3d Cir. 1992); Montalbano v.

Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir.

1985).

Thomas v. Nelms, No. 1:09-CV-491, 2013 WL 593419, at *1

(M.D.N.C. Feb. 14, 2013); see also Simmons v. Stokes, No. 8:11-

cv-00175-RMG-JDA, 2011 WL 2198298, at *1 (D.S.C. May 11, 2011),

report and recommendation adopted, Civil Action No. 8:11-CV-175-

RMG, 2011 WL 2293227 (D.S.C. June 6, 2011) (citing Karlsson v.

Rabinowitz, 318 F.2d 666, 668–69 (4th Cir. 1963)) (noting

failure to comply with service rules does not mandate

dismissal).

Though service has not been perfected on Defendant Alamance

DSS, the court finds that Defendant Alamance DSS has received

actual notice of this action. Service was delivered to and

received by the long-time attorney for Defendant Alamance DSS.

(Doc. 14-1.) Mr. Hagood, the Alamance County Manager, is aware

of the pendency of this action, though he has not been served.

(Doc. 14-2 at 1.)4 Defendant Alamance DSS has retained counsel to

represent them in this matter. (Doc. 13.) Though Plaintiff has

failed to comply with the rules, the court finds the rules merit

4 As discussed in the next section, a county’s department of

social services is not an entity that can be sued. However, if

it could, it would seem service must comply with the rules for

county organizations.

a “liberal construction” since Defendant Alamance DSS has

“actual notice” of the suit. Armco, 733 F.2d at 1089. However,

for the reasons explained in the next section, the court finds

that Plaintiff has failed to establish personal jurisdiction

over Defendant Alamance DSS.

As to Defendant GAL, the court finds it should dismiss

Defendant GAL without prejudice rather than quashing service. It

is not at all clear to this court who or what Defendant GAL is.

See Fed. R. Civ. P. 4(a)(1)(A) (requiring a summons to name the

parties involved). Indeed, counsel for Defendant GAL maintains

that it is not an entity in existence that can be sued. (Doc. 17

at 1.) Plaintiff has moved to amend her summons as to both

Defendants, to include adding the Assistant State Attorney

General representing Defendant GAL. (Doc. 20.) Despite

Plaintiff’s pending motion to amend her summons and her pro se

status, the court finds a dismissal without prejudice is more

appropriate here than quashing service. As discussed below, see

infra Section II.C, Plaintiff’s Complaint is unlikely to survive

other Rule 12 challenges, Defendant GAL is not clearly

identified by the summons, and Plaintiff has failed to comply

with multiple rules of service. Though the rules should be

liberally construed, they “may not be ignored.” Armco, 733 F.2d

at 1089. For these reasons, dismissing the action without

prejudice is more appropriate than quashing service.

B. Lack of Personal Jurisdiction over Alamance DSS

Defendant Alamance DSS argues that it is not an entity

capable of being sued, meaning the court cannot establish

personal jurisdiction over it. (Doc. 16 at 8.) This court agrees

and will dismiss all claims against Defendant Alamance DSS

pursuant to Fed. R. Civ. P. 12(b)(2).

If a plaintiff files suit against an entity that is not

capable of being sued, then the case is properly dismissed

pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal

jurisdiction. See Fisher v. Winston-Salem Police Dep’t, 28

F. Supp. 3d 526, 534 (M.D.N.C. 2014); Deal v. Cape Fear Valley

Hosp., No. 5:09-CT-3066-D, 2011 WL 354690, at *4 (E.D.N.C.

Feb. 2, 2011); see also Moore v. S. Tower Med., Civil Action No.

3:12-CV-03981-N(BF), 2013 WL 2370583, at *1 (N.D. Tex. May 31,

2013). But see Robinson v. Bladen Cty. Sheriff Dep’t, No. 7:10-

CV-146-BO, 2010 WL 4054389, at *2 n.1 (E.D.N.C. Oct. 14, 2010)

(dismissing a “non-jural entity” under Rule 12(b)(6)).

“The capacity of a governmental body to be sued in the

federal courts is governed by the law of the state in which the

district court is held.” Avery v. Burke Cty., 660 F.2d 111, 113–

14 (4th Cir. 1981); see also Fed. R. Civ. P. 17(b)(3). “In North

Carolina, in the absence of a statute, ‘the capacity to be sued

exists only in persons in being.’ Therefore, departments of

municipalities and counties are not susceptible to suit without

statutory authorization.” Evans v. Pitt Cty. Dep’t of Soc.

Servs., 972 F. Supp. 2d 778, 788–89 (E.D.N.C. 2013), vacated in

unrelated part, appeal dismissed in part sub nom. Evans v.

Perry, 578 F. App’x 229 (4th Cir. 2014), and aff’d in part, 616

F. App’x 636 (4th Cir. 2015) (quoting McPherson v. First &

Citizens Nat’l Bank of Elizabeth City, 240 N.C. 1, 18, 81 S.E.2d

386, 397 (1954)).

Counties are legal entities capable of being sued, N.C.

Gen. Stat. § 153A-11; however, there is no statutory basis for

suing a department of social services, see Evans, 972 F. Supp.

2d at 788 (noting no statutory basis for suing a department of

social services in North Carolina); Malloy v. Durham Cty. Dep’t

of Soc. Servs., 58 N.C. App. 61, 67, 293 S.E.2d 285, 289 (1982)

(“With respect to the County’s rights of subrogation, its

Department of Social Services is no more capable of suing in its

own name than is some lower echelon employee of such

Department.”). It is for this reason that many district courts

in North Carolina have dismissed claims against departments of

social services. See Hester v. Colvin, No. 1:16CV410, 2017 WL

375656, at *3 (M.D.N.C. Jan. 26, 2017); Evans, 972 F. Supp. 2d

at 789; Powell v. Nash Cty. Dep’t of Soc. Servs., No. 5:14-CV-

281-FL, 2014 WL 4055831, at *2 (E.D.N.C. July 22, 2014), report

and recommendation adopted, No. 5:14-CV-281-FL, 2014 WL 4062715

(E.D.N.C. Aug. 14, 2014); Moua v. Alexander Cty., No.

5:09CV19-V, 2012 WL 252648, at *6 (W.D.N.C. Jan. 26, 2012); see

also Johnson v. Marrow, 228 N.C. 58, 59, 44 S.E.2d 468, 470

(1947) (“Where a county is the real party in interest, it must

sue and be sued in its name.”).

Given the lack of statutory authority to proceed

independently against Alamance County’s Department of Social

Services and following the lead of many other federal courts in

this state, this court will dismiss Plaintiff’s Complaint

against Defendant Alamance DSS.

C. Plaintiff’s Pending Motions

Though the motions are moot in light of the court’s

findings regarding personal jurisdiction and service of process,

the court briefly addresses Plaintiff’s pending motions for

default judgment, (Docs. 11, 12), to amend her summons, (Doc.

20), to file documents electronically, (Doc. 21), and

to file an amended complaint, (Doc. 26).

Beginning with Plaintiff’s Motions for Default Judgment

against Defendants Alamance DSS and GAL, (Docs. 11, 12), the

court finds that, even if service had been perfected and

personal jurisdiction existed, the motions should still be

denied.

First, Plaintiff is premature in her motion for a default

judgment. Plaintiff moved for a default judgment before moving

for an entry of default as required by Rule 55(a). See Meehan v.

Snow, 652 F.2d 274, 276 (2d Cir. 1981) (“The procedural steps

contemplated by the Federal Rules of Civil Procedure following a

defendant’s failure to plead or defend as required by the Rules

begin with the entry of a default by the clerk upon a

plaintiff’s request.”). Plaintiff’s motions for default judgment

are premature.

Second, due to service and personal jurisdiction issues, no

entry of default is possible against these Defendants. “[W]hen

service of process is ineffective a court does not acquire

personal jurisdiction over a party, and a default judgment

resulting from such defective service is void.” Bank United v.

Hamlett, 286 B.R. 839, 843 n.3 (W.D. Va.), aff’d sub nom. In re

Hamlett, 47 F. App’x 673 (4th Cir. 2002). For the reasons

discussed supra, service as to Defendant GAL is still

unperfected, meaning no default is possible. See Armco, 733 F.2d

at 1089 (vacating a default judgment where service of process

was insufficient). Similarly, the court does not have personal

jurisdiction over Defendant Alamance DSS to enter any judgment.

Third, regardless of the service and procedural issues,

Defendant GAL does not appear to have been in default. “When a

party against whom a judgment for affirmative relief is sought

has failed to plead or otherwise defend, and that failure is

shown by affidavit or otherwise, the clerk must enter the

party’s default.” Fed. R. Civ. P. 55(a). Absent a waiver of

service, a party must serve its answer or other responsive

pleading “within 21 days after being served with the summons and

complaint . . . .” Fed. R Civ. P. 12(a)(1)(A)(i). When counting

time periods “stated in days or a longer unit of time,” courts

“exclude the day of the event that triggers the period.” Fed. R.

Civ. P. 6(a)(1)(A). Process was mailed on September 4, 2019.

(Doc. 5.) Assuming it was received by Defendant GAL the next

day, Defendant GAL had until September 26, 2019, to file a

responsive pleading. Defendant GAL filed a Motion to Dismiss on

September 26, 2019. (Doc. 7.) It appears Defendant GAL’s

responsive motion was filed within the required time period.

Finally, the Fourth Circuit has “repeatedly expressed a

strong preference that, as a general matter, defaults be avoided

and that claims and defenses be disposed of on their merits.”

Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616

F.3d 413, 417 (4th Cir. 2010). This is especially true where the

opposing party “acts with reasonable promptness.” See id.

Defendant GAL acted with reasonable promptness when filing its

Motion to Dismiss. (See Doc. 7.) Defendant Alamance DSS also

acted with reasonable promptness, considering the fact that

Plaintiff’s service on both Defendants has still not been

perfected.

For all these reasons, Plaintiff’s Motions for Default

Judgment, (Docs. 11, 12), should have been denied absent the

court’s findings regarding service of process and personal

jurisdiction.

Turning to Plaintiff’s Motion for Leave to File Amended

Complaint, (Doc. 26), the court finds that any amendment would

likely be futile. “[A] party may amend its pleading only with

the opposing party’s written consent or the court’s leave. The

court should freely give leave when justice so requires.” Fed.

R. Civ. P. 15(a)(2).

The law is well settled “that leave to amend a

pleading 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 be futile.” Johnson v. Oroweat Foods

Co., 785 F.2d 503, 509(4th Cir. 1986). Delay alone is

an insufficient reason to deny leave to amend. See id.

Rather, the delay must be accompanied by prejudice,

bad faith, or futility. See id.

Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999).

Defendant Alamance DSS opposes Plaintiff’s Motion to Amend

her Complaint on the grounds that it is futile since the two

complaints are similar in almost all regards. (Doc. 30.) The

court notes that the two Complaints are almost identical. The

Amended Complaint appears to differ only in that it now includes

exhibits of court records from the underlying state custody

proceedings. (See Doc. 27 at 5–6, 14–18.) Regardless of whether

the court can take notice of Plaintiff’s exhibits to her Amended

Complaint, they do nothing more than substantiate that a report

date of February 6, 2012, is included in many of the state court

filings. (See, e.g., id. at 17.) Since the court must accept all

of Plaintiff’s factual allegations as true at this stage of the

proceedings, Ray v. Roane, 948 F.3d 222, 226 (4th Cir. 2020),

these exhibits do not strengthen her Complaint.

Further, even if Plaintiff was to offer a second amended

complaint with more allegations or greater specificity, such

amendment would be futile since it would not resolve the service

and jurisdiction issues discussed above. Any new allegations

against these Defendants would not address how the named

Defendants can be sued under any theory. Defendant Alamance DSS

cannot be sued regardless of what Plaintiff alleges, see supra

Section II.B, and Plaintiff has not alleged in either Complaint

facts that establish who or what Defendant GAL is. Plaintiff’s

motion to amend her complaint should, therefore, be denied.5

As to Plaintiff’s Motion for Leave of Court to File an

Amended Summons, (Doc. 20), the court finds that motion should

be denied. As discussed in Section II.A supra, it is within the

court’s discretion to quash service or dismiss with prejudice

when service is defective. Thomas, 2013 WL 593419, at *1.

Amending the summons to name the attorney for Alamance DSS does

not remedy the personal jurisdiction issues in suing a North

Carolina county department of social services.6

5 In addition to these issues, there also appear to be

substantive legal issues with Plaintiff’s Complaint. Plaintiff’s

Complaint appears to suffer from statute of limitation and

immunity issues. See N.C. Gen. Stat. § 1-52(9) (noting statute

of limitations for fraud in North Carolina); Moua, 2012 WL

252648, at *11 (finding cause of action accrued when plaintiff

first lost physical custody of children); see also Fleming v.

Asbill, 42 F.3d 886, 889 (4th Cir. 1994) (holding that guardians

ad litem have quasi-judicial immunity when performing

functions); cf. McDonough v. Smith, ____ U.S. ____, ____, 139 S.

Ct. 2149, 2158 (2019) (discussing statute of limitation issues

in malicious prosecution action). However, the court does not

resolve these issues here as it is dismissing Plaintiff’s

Complaint without reaching its merits.

6 Plaintiff, at various times in her motion to amend her

summons, refers to a defendant “Child Protective Services”

(“CPS”) (Doc. 20 at 2.) It is not clear to the court who “CPS”

is, but Plaintiff appears to be using CPS to refer to Defendant

Alamance DSS. For instance, Plaintiff claims that “Anna M. Davis

Assistant Attorney General was the attorney for both Defendant

GAL and Defendant CPS.” (Id.) Ms. Davis initially represented

both Defendant GAL and Defendant Alamance DSS. (See Doc. 7 at

1.)

As to Defendant GAL, “[t]he court may permit a summons to

be amended.” Fed. R. Civ. P. 4(a)(2) (emphasis added). Though

little, if any, prejudice would likely result to Defendant GAL

if the summons was amended, the court declines to amend the

summons in light of two facts. First, it is not clear who

Defendant GAL is, nor does the proposed amended summons clarify

that point. The proposed amended summons, therefore, continues

to violate Fed. R. Civ. P. 4(a)(1)(A). Second, if Plaintiff is

suing the Guardian ad Litem appointed on behalf of her minor

children, then that person has quasi-judicial immunity from

Section 1983 liability for actions she took during the state

proceedings. Fleming, 42 F.3d at 889. Because the application of

the doctrine of immunity requires identification of a proper

party, it is not clear who, if anyone, is required to appear and

defend as “Guardian ad Litem Alamance County,” and the amended

summons does not address that issue, the court declines to grant

the amendment.

Finally, Plaintiff also moved to file documents

electronically. (Doc. 21.) With her Complaint dismissed, the

court will deny that motion has moot.

III. CONCLUSION

For the foregoing reasons, the court finds that Defendants’

Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(2) and (5),

(Docs. 7, 15), should be granted.

IT IS THEREFORE ORDERED that Defendant Alamance County

Department of Social Services’ Motion to Dismiss Plaintiff’s

Complaint, (Doc. 15), is GRANTED. Plaintiff’s Complaint against

Defendant Alamance County Department of Social Services is

DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Defendant Guardian ad Litem

Alamance County’s Motion to Dismiss, (Doc. 7), is GRANTED.

Plaintiff’s Complaint against Defendant Guardian ad Litem

Alamance County is DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Default

Judgment as to Defendant Alamance County Department of Social

Services, (Doc. 11), and Motion for Default Judgment as to

Defendant Guardian ad Litem Alamance County, (Doc. 12), are

DENIED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave of

Court to File an Amended Summons, (Doc. 20), and Motion for

Leave to File Amended Complaint, (Doc. 26), are DENIED WITHOUT

PREJUDICE, and that Plaintiff’s motion to file documents

electronically, (Doc. 21), is DENIED AS MOOT.

A judgment reflecting this Memorandum Opinion and Order

will be entered contemporaneously herewith.

This the 8th day of July, 2020.

LA; Wakes

bh) Wi an L. (%& xX

United States District Ju

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