# WADE v. ALAMANCE COUNTY DEPARTMENT OF SOCIAL SERVICES

> District Court, M.D. North Carolina · July 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10253488

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** July 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253488

## How later opinions describe it (automated extraction)

- noting no statutory basis for suing a department of social services in North Carolina
- affirming district court that dismissed actions brought directly under Fourth Amendment and not § 1983
- explaining how plaintiff sued state police under § 1983, but sued federal officers directly under the Fourth Amendment in a Bivens action

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253488. Public record. Not legal advice.