Opinion
7:22-CV-00178-FL
07-21-2023
Laurie Reynolds, et al., Plaintiffs, v. United States Government, et al., Defendants.
ORDER & MEMORANDUM & RECOMMENDATION
ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE
In October 2022, dozens of pro se Plaintiffs sued more than 50 Defendants (most of whom are state officials and local governments) for allegedly conspiring to violate their civil rights in state-level child custody proceedings. See Compl., D.E. 1. In January 2023, the court dismissed most Plaintiffs for failing to follow court orders and neglecting to prosecute their cases. Order Dismissing Pls. at 8, D.E. 258. As a result, only six Plaintiffs remain: Keona Bradley, Raymond Sipult, Glenda Cody, Russ Cody, Cecelia Evertez, and Laurie Reynolds. Id.
Pinpoint citations refer to the page numbers associated with the court's CM/ECF filing system, not parties' provided page numbers.
Thirteen Defendants have moved to dismiss the claims against them. Alongside these dispositive motions, the court will also address twelve other motions on the docket.
The court will address the three pending motions for recusal (D.E. 587; 588; 589) by separate order.
For the reasons set forth below, the court denies all eleven non-dispositive motions presently before it. The undersigned further recommends that the court deny Plaintiff Laurie Reynolds's motion for default judgment against Governor Ron DeSantis and grant each of the 13 outstanding motions to dismiss. And finally, because many Defendants have not yet responded to the complaint, the court will require the six remaining Plaintiffs to prove that they were properly served.
D.E. 599; 600; 602; 608; 609; 611; 612; 613; 614; 615; 626.
D.E. 442.
D.E. 216; 237; 261; 265; 268; 270; 272; 292; 294; 317; 335; 368; 381.
I. Background
The complaint's recitation of facts is difficult to decipher. More than 50 Plaintiffs originally sued a slew of Defendants under 42 U.S.C. § 1983 and other laws for alleged violations of their civil rights. See Compl. at 1. For the most part, Defendants are federal, state, and local governments and their officials. In their complaint, which totals over 500 pages (including attachments), Plaintiffs contend that child custody proceedings nationwide have “been fundamentally corrupted by malicious actors[.]” Id. at 12. This corruption spans from tip to tail of the legal system-according to Plaintiffs, the “bad actors . . . include judges, lawyers, police officers, social workers, health care professionals, and sometimes average citizens[.]” Id. at 13.
Although Plaintiffs' complaint begins with numbered paragraphs, the numeration sometimes restarts. Thus, citations to the complaint will point to pages rather than paragraphs.
As best as the undersigned can make out, the Defendants are: The U.S. Government; President Joe Biden; Vice President Kamala Harris; Department of Health and Human Services Secretary Xavier Becerra; Attorney General Merrick B. Garland; Associate Commissioner of the Office of the Administration for Children and Families Aysha Schomburg; various unnamed officials within the Administration for Children and Families; California Governor Gavin Newsom; former California Governor Jerry Brown; Lieutenant Governor of California Eleni Kounalakis; Texas Governor Greg Abott; Lieutenant Governor of Texas Dan Patrick; former New Mexico Governor Michelle Lujan-Grishaw; Arizona Governor Doug Ducey; Florida Governor Ron DeSantis; Pennsylvania Governor Tom Wolf; Georgia Governor Brian Kemp; Tennessee Governor Bill Lee; Alaska Governor Michael Dunleavy; Kansas Governor Laura Kelly; New York Governor Kathy Hochul; Michigan Governor Gretchen Whitmer; Los Angeles County Governor Jackey Lacey; Attorney General of Los Angeles County Rob Bonta; Texas Attorney General Ken Paxton; Jaimie Masters; William Clark; St. Francis Ministries; Kids Central, Inc.; Maricopa County, Arizona; Sebastian County, Arkansas; Scott County, Arkansas; Los Angeles County, California; Riverside County, California; Monterey County, California; Marion County, Florida; Miami-Dade County, Florida; St. Lucie County, Florida; Camden County, Georgia; Laurens County, Georgia; Hutchinson County, Kansas; Sedgwick County, Kansas; St. Mary's County, Maryland; Kent County, Michigan; Oakland County, Michigan; Bernalillo County, New Mexico; Kings County, New York; Monroe County, New York; Washington County, Ohio; Alleghany County, Pennsylvania; McLennan County, Texas; Bell County, Texas; Wichita County, Texas; and Blount County, Tennessee.
The scheme allegedly proceeds as follows: Social workers file intentionally misleading reports “that are filled with factual errors” suggesting that a child is abused or neglected. Id. Then, the local prosecutor-without trying to verify the truth of the social workers' reports-initiates a child custody action against the parents. Id. In litigating these custody disputes, the prosecutors “act[] with an illegal amount of adversariness.” Id. And the attorneys representing the children and the parents aren't much help-the children's lawyers conceal facts they're legally obligated to disclose, and the parents' attorneys just want to “separate[e] as many families as possible[.]” Id. at 15.
Juvenile court judges, who are biased against the parents, hear cases over which they lack jurisdiction and deny basic due process rights to the parents. Id. at 14. Rather than viewing the government's evidence critically, the judges merely “give a rubber stamp to whatever the county agency asks for[.]” Id. But the county agencies are less than truthful-they “exaggerate facts and fabricate evidence” to place children in government custody and subject their parents “to excessive force, medical battery, harassment, extortion, psychological trauma, and slander[.]” Id.
Plaintiffs believe that this corruption traces back to government leaders at the county, state, and federal level. See, e.g., id. at 15, 24. These government officials allegedly failed to train their employees and refused to prosecute criminals, leading to children being placed into needlessly restrictive environments and parents losing their custody rights without due process. See, e.g., id. at 24-27. This vicarious liability theory lies at the heart of Plaintiffs' claims, as many Defendants are federal- and state-level government officials who have no direct hand in child custody proceedings.
After laying out the general theories at the heart of their lawsuit, Plaintiffs proceed to tell their individual stories. These affidavit-style allegations make up the bulk of the complaint, and it is hard to see how they fit together. Compare, e.g., id. at 113-15 (making allegations against private and public actors in a Kansas child custody proceeding), with id. at 82-88 (requesting injunctive relief against a city in Florida).
All told, Plaintiffs bring ten causes of action arising out of a conspiracy to deny them their civil rights. They seek over $1 billion in damages, reunification with their children, a writ of mandamus, and an injunction that prevents local courts from “oppressing families and detaining their children under the guise of child welfare.” Id. at 154.
Plaintiffs bring claims under: 42 U.S.C. §§ 1983, 1985, 1986, and 1988; the Monell doctrine, the Racketeer Influenced and Corrupt Organizations Act, state legal and medical malpractice laws, state contract laws, and the Bivens doctrine.
The court has dismissed all but six plaintiffs from this lawsuit already. See Order Dismissing Pls. at 2-3. Only Keona Bradley, Raymond Sipult, Glenda Cody, Russ Cody, Cecelia Evertez, and Laurie Reynolds remain. Id. at 8. Their claims arise out of child custody proceedings in Kansas (Bradley, Sipult, and the Codys), Connecticut (Evertez), and Florida (Reynolds).
The dismissal of all but six Plaintiffs poses an interesting question for the court. The bulk of Plaintiffs' complaint consists of affidavit-style personal allegations from individuals who are no longer party to this lawsuit. It is therefore difficult to know whether these allegations should still be considered part of the complaint at all-the remaining Plaintiffs have no connection to the individual child custody proceedings of those who have been removed from this lawsuit.
These thirteen motions to dismiss are before the court:
1. Texas Governor Greg Abbott and Texas Attorney General Ken Paxton allege that the court lacks subject-matter and personal jurisdiction and that Plaintiffs fail to state a claim. Abbott & Paxton Mot. Dismiss, D.E. 216.
2. Kings County, New York, contends that the court lacks subject-matter and personal jurisdiction and that both process and service of process were insufficient. Kings Cnty. Mot. Dismiss, D.E. 237.
3. New York Governor Kathy Hochul maintains that the court lacks subject-matter and personal jurisdiction, that service of process was insufficient, and that Plaintiffs fail to state a claim. Hochul Mot. Dismiss, D.E. 261.
4. Tennessee Governor Bill Lee argues that the court lacks subject-matter and personal jurisdiction and that Plaintiffs fail to state a claim. Lee Mot. Dismiss, D.E. 265.
5. Los Angeles County, California contends that the court lacks personal jurisdiction and that Plaintiffs fail to state a claim. L.A. Cnty. Mot. Dismiss, D.E. 268.
6. St. Francis Ministries and William Clark (its CEO) allege that the court lacks subject-matter and personal jurisdiction, that venue in the Eastern District of North Carolina is improper, and that Plaintiffs fail to state a claim. Clark & SFM Mot. Dismiss, D.E. 270.
7. Kids Central, Inc., maintains that the court lacks personal jurisdiction and that Plaintiffs fail to state a claim. Kids Central Mot. Dismiss, D.E. 272.
8. Florida Governor Ron DeSantis contends that the court lacks personal jurisdiction, that service of process was insufficient, and that Plaintiffs fail to state a claim. DeSantis Mot. Dismiss, D.E. 292.
9. Kent County, Michigan, alleges that the court lacks personal jurisdiction, that venue in the Eastern District of North Carolina is improper, that service of process was improper, and that Plaintiffs fail to state a claim. Kent Cnty. Mot. Dismiss, D.E. 294.
10. Miami-Dade County, Florida, argues that the court lacks personal jurisdiction, that service of process was improper, and that Plaintiffs fail to state a claim. Miami-Dade Cnty. Mot. Dismiss, D.E. 317.
11. Monterey County, California, contends that the court lacks personal jurisdiction and that Plaintiffs fail to state a claim. Monterey Cnty. Mot. Dismiss, D.E. 335.
12. Kansas Governor Laura Kelly maintains that the court lacks subject-matter and personal jurisdiction, that service of process was improper, and that Plaintiffs fail to state a claim. Kelly Mot. Dismiss, D.E. 368.
13. Federal Defendants allege that the court lacks subject-matter jurisdiction, that both process and service of process were insufficient, and that Plaintiffs fail to state a claim. Fed. Defs. Mot. Dismiss, D.E. 381.
This group is made up of the United States of America, President Joseph R. Biden, Jr., Vice President Kamala Harris; Secretary of the U.S. Department of Health and Human Services Xavier Becerra, U.S. Attorney General Merrick B. Garland, Associate Commissioner of the Office of the Administration for Children and Families Aysha Schomburg, and various unnamed officials with the Administration for Children and Families.
On top of these motions to dismiss, the court has twelve other motions before it:
1. Nonparty Gary Moore's motion to intervene. Mot. Intervene, D.E. 599.
2. Nonparty Kelly Patton's motion for leave to file an amicus brief. Mot. for Leave, D.E. 600.
3. Clark's and St. Francis Ministries' motion for sanctions. Mot. for Sanctions, D.E. 602.
4. The Codys' motion for an extension of time to respond to Federal Defendants' motion to dismiss. Codys Mot. Extension, D.E. 608.
5. Sipult's motion for an extension of time to respond to Federal Defendants' motion to dismiss. Sipult Mot. Extension, D.E. 609.
6. Everetz's motion for an extension of time to respond to Federal Defendants' motion to dismiss. Everetz Mot. Extension, D.E. 611.
7. Reynolds's motion for an extension of time to respond to Federal Defendants' motion to dismiss. Reynolds Mot. Extension, D.E. 612.
8. Bradley's motion for jurisdictional discovery. Bradley Mot. Jur. Disc, D.E. 613.
9. The Codys' motion for jurisdictional discovery. Codys Mot. Jur. Disc., D.E. 614.
10. Sipult's motion for jurisdictional discovery. Sipult Mot. Jur. Disc., D.E. 615.
11. Reynolds's motion for leave to file a surreply to Governor DeSantis's motion to dismiss. Reynolds Mot. for Surreply, D.E. 626.
12. Reynolds's motion for default judgment against Governor DeSantis. Mot. for Default J., D.E. 442.
The court will begin by denying each non-dispositive motion. The undersigned will then evaluate Reynolds's motion for default judgment-the court should deny it. From there, the undersigned will recommend that the court grant each outstanding motion to dismiss. And finally, the court will require Plaintiffs to file notice with the court showing that all Defendants have been properly served. Failure to prove that a Defendant has been served correctly will likely lead to that Defendant's dismissal.
The undersigned United States Magistrate Judge will issue an order-rather than a memorandum and recommendation-on this motion for two reasons: First, the Federal Magistrates Act of 1968 does not preclude Magistrate Judges from issuing an order on a motion to intervene. See 28 U.S.C. § 636(b)(1). And second, while the Fourth Circuit has not ruled on whether motions to intervene are appropriate for resolution by a Magistrate Judge, the overwhelming weight of evidence suggests that they are. See, e.g., Coleman v. Lab. & Indus. Rev. Comm'n, 860 F.3d 461, 474 (7th Cir. 2017) (“A magistrate judge can . . . rule on a motion to intervene[.]”); Yorkshire v. IRS, 26 F.3d 942, 944 n.3 (9th Cir. 1994) (noting that motions to intervene are non-dispositive and therefore may be resolved by Magistrate Judges); United States v. Duke Energy Corp., No. 1:00CV1262, 2009 WL 10717776, at *2 (M.D. N.C. Jan. 30, 2009) (reviewing a Magistrate Judge's order on a motion to intervene); United States v. Certain Real Prop. & Premises, 751 F.Supp. 1060, 1061 (E.D.N.Y. 1989) (denying appeal that argued a Magistrate Judge must issue a recommendation on motions to intervene).
Gary Moore, a nonparty, asks to intervene as a Plaintiff. Mot. Intervene at 1-2. Federal Rule of Civil Procedure 24, which governs intervention, explains that a party has a right to intervene when unconditionally allowed by a federal statute or when the party has an interest in the suit that could be left unprotected without its participation. Fed.R.Civ.P. 24(a)(1)-(2). A court may also permit a party to intervene when conditionally allowed by a federal statute or when the party “has a claim or defense that shares . . . a common question of law or fact” with the underlying lawsuit. Id. 24(b)(1)-(2).
Moore's motion is nearly identical to a handful of other motions to intervene that the court has already denied. See May 4 Order & M&R at 6-7, D.E. 577; Order Dismissing Pls. at 5-8. And like those who have tried (and failed) to intervene in months prior, Moore does not explain why he may join this lawsuit as of right or permissively. If Moore wishes to bring a lawsuit challenging child custody proceedings that have affected him, he should file a separate complaint in the proper court. See Order Dismissing Pls. at 7 (“Multiplying existing claims in this case by additional claims of proposed intervenors arising out of jurisdictions throughout the country will not promote just, speedy, and inexpensive determination of this action.”). Thus, the court denies his motion to intervene (D.E. 599).
III. Motion for Leave to File Amicus Brief
Kelly Patton (another nonparty) seeks leave to file an amicus brief in support of Gary Moore and the Save Our Children Truth Commission (a former Plaintiff). Mot. for Leave at 1-2. The “district court has broad discretion to appoint amicus curiae.” Titan Am., LLC v. Darrell, No. 7:11-CV-52-FL, 2011 U.S. Dist. LEXIS 100340, at *14 (E.D. N.C. Sept. 2, 2011) (Flanagan, J.). Courts should be receptive to potential amici who have a special interest in the case and who can provide timely and useful legal theories. See id. at *14-15 (citation omitted). But “an amicus who argues facts should rarely be welcomed.” Id. at *15 (quoting Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970)).
Patton's motion fails for two reasons. First, it claims to support individuals who are not parties to this case. As discussed above, the court will not allow Moore to intervene as a Plaintiff, and it dismissed the Save Our Children Truth Commission from this lawsuit in January 2023. See Order Dismissing Pls. at 4. An amicus brief in support of nonparties is of very little use.
But even if Patton purports to support Plaintiffs more broadly, the court will not allow her to file an amicus brief. Patton claims that she “can offer broader and impartial factuality” concerning Kansas custody battles. Mot. for Leave at 2. Elsewhere, she contends that she intends to provide “a broader, detailed prospective [sic] of the facts pertaining to this litigation[.]” Proposed Amicus Br. at 2, D.E. 600-1. But an amicus brief that “argues facts should rarely be welcomed[,]” Strasser, 432 F.2d at 569, and Patton's is no exception. There is simply no reason to conclude that allowing her to file an amicus brief would assist the court moving forward. Thus, the motion submitted by Gary Moore seeking leave for Patton to file an amicus brief (D.E. 600) is denied.
IV. Motion for Sanctions
At a glance, Patton's involvement in this case largely mirrors that of a pro se Plaintiff or an attorney. She has drafted and signed many filings advocating Plaintiffs' positions. See May 4 Order & M&R at 9 (providing examples). She has also authored several pleadings from individuals who wish to intervene as Plaintiffs. See id. (same).
But there's a problem-Patton is neither a party to this lawsuit nor a lawyer. See id. Yet she has repeatedly attempted to act on other individuals' behalf as an “Attorney in Fact.” In an order filed last month, the court explicitly warned her that the continued unauthorized practice of law would likely lead to sanctions against her. Id. at 9 n.9.
Clark and St. Francis contend that Patton and Bradley violated the court's May 4 Order by continuing to submit files to the docket that Patton drafted. Mem. Supp. Mot. for Sanctions at 2, D.E. 603. They also allege that Patton improperly submitted open records requests to St. Francis on behalf of Plaintiffs and signed motions submitted by nonparty Gary Moore, who seeks to intervene as a Plaintiff. See id. Clark and St. Francis ask that the court dismiss Bradley from this case and sanction Patton individually. Id.
Patton retorts that she has signed no documents on behalf of a Plaintiff or intervenor since the court issued its order. See Resp. Opp'n Mot. for Sanctions at 3, D.E. 610. Still, she maintains that she has not committed sanctionable conduct because she obtained power of attorney for multiple Plaintiffs and intervenors, and she is immune from liability under Kansas law. See id. at 2-3.
Federal courts have inherent authority to “impose sanctions for any conduct utterly inconsistent with the orderly administration of justice.” Projects Mgmt. v. Dyncorp Int'l LLC, 734 F.3d 366, 375 (4th Cir. 2013) (citation and internal quotation marks omitted). This authority stems from the court's power “to manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases.” Six v. Generations Fed. Credit Union, 891 F.3d 508, 519 (4th Cir. 2018) (citation and internal quotation marks omitted). Among the conduct a court can sanction under its inherent authority is the unauthorized practice of law. See United States v. Johnson, 327 F.3d 554, 560 (7th Cir. 2003) (“It follows logically that a federal court's power to regulate and discipline attorneys appearing before it extends to conduct by nonlawyers amounting to practicing law without a license.”).
Clark and St. Francis first contend that the court should sanction Patton because she sent St. Francis a Kansas open records request asking for information about the organization's participation in the Interstate Compact on the Placement of Children and inquiring whether it had ever placed children in North Carolina. See Mem. Supp. Mot. for Sanctions at 2-3. Patton's request did not indicate that it was sent on behalf of Plaintiffs. Id. at 2. St. Francis denied her request, presumably because it is not a public agency. Id. at 3; see also Kan. Stat. Ann. §§ 45-217(k), 45218. But Clark and St. Francis maintain that the request seeks to circumvent the Federal Rules of Civil Procedure and the court's May 4 Order staying discovery. Id. (citing Fed.R.Civ.P. 37(b)(2)(A)).
Although Patton's open records request raises eyebrows, it does not amount to sanctionable conduct. Patton is not a party to this action (nor an attorney representing a party), so she is not bound by the court's discovery orders. See Fed.R.Civ.P. 37(b)(2)(A) (authorizing sanctions against “a party[,] a party's officer, director, or managing agent[,] or a witness”). And even if Patton did ask for the records covertly on Plaintiffs' behalf, St. Francis denied her request- Plaintiffs have not received any unauthorized discovery because of Patton. See Mem. Supp. Mot. for Sanctions at 3. While slightly suspicious, Patton's request did not violate the Federal Rules or threaten “the orderly administration of justice.” Projects Mgmt., 734 F.3d at 375. The court therefore declines to sanction her on this basis.
Clark and St. Francis next point to five filings that Patton allegedly signed in violation of the court's May 4 Order. See Mem. Supp. Mot. for Sanctions at 2. Although the court docketed each of these filings after it issued the order, three of them were received before the order was released. See Bradley Resp. Opp'n Kelly Mot. Dismiss, D.E. 580 (received April 10); Misc. Exhibits, D.E. 581 (received April 10); Bradley Mem. Supp. Mot. Compel Disc., D.E. 582 (received April 17). It would be unjust for the court to sanction Patton for conduct that took place before it instructed her to stop submitting documents on Plaintiffs' behalf.
The two other documents-which the court received after it issued the May 4 Order-do not warrant sanctions. The first is Patton's motion for leave to file an amicus brief. As discussed above, that motion asks if Patton may submit a brief in support of a now-dismissed Plaintiff and a person who hoped to intervene as a Plaintiff. Although the court will not allow Patton to file an amicus brief, her motion does not amount to sanctionable conduct-Patton submitted the motion on her own behalf.
The final filing that Clark and St. Francis flag is nonparty Gary Moore's motion to intervene. This document was submitted to the court by Moore, and it does not bear Patton's signature. See Mot. Intervene at 2. Alongside that motion, however, Moore submitted a document purporting to grant Patton power of attorney over him. See Power of Att'y Form, D.E. 599-5. But this document had no bearing on the court's adjudication of Moore's motion, and Patton did not appear to author or sign the motion itself. Thus, the court does not see fit to sanction Patton for the power of attorney document's inclusion.
The court does, however, want to address several of the points Patton raised in opposition to Clark's and St. Francis's motion for sanctions. Patton maintains that she has not engaged in the unauthorized practice of law because she has power of attorney over the Plaintiffs and intervenors for whom she has drafted and signed filings. See Resp. Opp'n Mot. for Sanctions at 2-3. She also contends that she is immune from sanctions under Kansas law. See id. at 3 (quoting Kan. Stat. Ann. § 38-2223(f)). Patton is misguided.
Under North Carolina law, it is illegal for a non-lawyer “to give legal advice or counsel, to perform for or furnish to another legal services, or to prepare directly or through another for another person . . . any . . . legal document.” N.C. Gen. Stat. § 84-4. Federal courts in the state- including this court-have explained that being an “attorney in fact” or retaining “power of attorney” over a party does not authorize an individual to litigate on that party's behalf. See, e.g., Pitts v. United States HUD, No. 5:12-CV-72-D, 2013 WL 214693, at *1 n.1 (E.D. N.C. Jan. 18, 2013) (“Non-attorneys cannot litigate matters in the name of others based on claimed authority from some form of power-of-attorney.”) (citation and internal quotation marks omitted); Houey v. Carolina First Bank, No. 1:11-cv-225, 2011 WL 5402465, at *1 (W.D. N.C. Nov. 8, 2011) (noting that non-lawyers cannot represent pro se litigants even if they hold power of attorney).
Patton is not an attorney licensed to practice law in North Carolina. See May 4 Order & M&R at 9. And regardless of her status as an “attorney in fact” or her receipt of “power of attorney” from Plaintiffs and intervenors, she has no authority to litigate in North Carolina courts. Although the court declines to sanction her for now, Patton should know that any future attempt to litigate on another party's behalf will likely bear civil-and potentially criminal-consequences.
Patton also contends that she is immune from sanctions “as a designated advocate” under Kansas law. Resp. Opp'n Mot. for Sanctions at 3. In support of this statement, Patton cites Kansas's child abuse mandatory reporting law. That law imposes a duty on certain professionals to report suspected child abuse to the Kansas Secretary of Health and Environment. Kan. Stat. Ann. § 38-2223(a). It also provides that “[a]nyone who, without malice, participates in the making of a report to the secretary or a law enforcement agency relating to a suspicion a child may be a child in need of care or who participates in any activity or investigation relating to the report or who participates in any judicial proceeding resulting from the report shall have immunity from any civil liability that might otherwise be incurred or imposed.” Kan. Stat. Ann. § 38-2223(f).
Even if the Kansas law bound this court and applied to Patton, the court could still sanction her. The Kansas Court of Appeals has explained that § 38-2223(f) provides “immunity from suit for those who make reports.” T.H. v. Univ. of Kan. Hosp. Auth., 388 P.3d 181, 185, 53 Kan.App.2d 332 (Kan.Ct.App. 2107). In other words, mandatory reporters may not be sued for filing a false child abuse report so long as they did so in good faith. See id. at 185-86. This statute has nothing to do with whether a court may impose sanctions on a party who frustrates the orderly administration of justice-it cannot shield Patton from sanctions.
As a private investigator, Patton falls outside this category. See Kan. Stat. Ann. § 38-2223(a). Thus, it's unlikely that the statute protects her actions to begin with.
For now, the court denies Clark's and Saint Francis Ministries' motion for sanctions (D.E. 602). But the court warns Patton that she should not attempt to draft, sign, or submit any documents for Plaintiffs (or potential Plaintiffs) moving forward-she is not licensed to practice law in Kansas or North Carolina, and any designation as an “attorney in fact” does not give her authority to litigate on behalf of others. If Patton continues to involve herself in this case, she will likely face sanctions.
V. Motions for Extension of Time
Plaintiffs have filed four motions seeking leave to respond to the Federal Defendants' motion to dismiss. See Codys Mot. Extension at 2; Sipult Mot. Extension at 3; Everetz Mot. Extension at 4; Reynolds Mot. Extension at 2. While two of these motions suggest that Plaintiffs want to file “one comprehensive reply memorandum against the motion to dismiss,” Reynolds Mot. Extension at 2; Everetz Mot. Extension at 4, the other two apparently seek to file a response to Federal Defendants' motion individually, see Codys Mot. Extension at 3; Sipult Mot. Extension at 3. Either way, before the court ruled on Plaintiffs' motions for extension, they filed several briefs on the docket. See Reynolds Surreply Opp'n Fed. Defs. Mot Dismiss, D.E. 619; Reynolds Am. Resp. Opp'n Fed. Defs. Mot. Dismiss, D.E. 620; Everetz Resp. Opp'n Fed. Defs. Mot. Dismiss, D.E. 621; Sipult Resp. Opp'n Fed. Defs. Mot. Dismiss, D.E. 622; Bradley Resp. Opp'n Fed. Defs. Mot. Dismiss, D.E. 623; Codys Resp. Opp'n Fed. Defs. Mot. Dismiss, D.E. 624.
Although she filed an out-of-time response to Federal Defendants' motion to dismiss, Bradley did not file a motion for extension.
Sipult, Everetz, and the Codys contend that the court should grant them an extension because they are “federally disabled” and therefore “require a bit more time to respond to” Federal Defendants' reply brief. See, e.g., Codys Mot. Extension at 1. And Reynolds claims that she should receive an extension because other Plaintiffs are disabled. See Reynolds Mot. Extension at 1.
At the outset, Plaintiffs seem to misunderstand the court's briefing schedule. Under this court's Local Rules, a plaintiff has 21 days to respond to any motion to dismiss. See Local R. Civ. P. 7.1(f)(1). From there, a defendant has 14 days to reply. See id. 7.1(g)(1). The Local Rules do not permit a plaintiff to respond to reply briefs. And Plaintiffs' disabilities-standing alone-do not constitute good cause for the court to allow a surreply to Federal Defendants' final brief. See, e.g., Jefferson v. Biogen Idec Inc., No. 5:11-CV-237-F, 2012 WL 3629219, at *4 (E.D. N.C. Aug. 22, 2012) (“[C]ourts generally allow a party to file a surreply only when fairness dictates based on new arguments raised in the previous reply.”) (citation and internal quotation marks omitted). Thus, to the extent Plaintiffs seek leave to file a surreply, their requests are denied.
Even if Plaintiffs seek leave to file responses to Federal Defendants' motion to dismiss itself, their arguments are unavailing. When these Plaintiffs moved for extensions, the Federal Defendants' motion was fully briefed. See Reply Supp. Fed. Defs. Mot. Dismiss, D.E. 601 (filed May 19, 2023) (corrected and refiled at D.E. 605). Thus, to receive an extension, Plaintiffs must show that they failed to file timely responses “because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B).
Federal Defendants' motion was filed on March 6, 2023. See Fed. Defs. Mot. Dismiss, D.E. 381. This gave Plaintiffs until March 27 to respond. See Local R. Civ. P. 7.1(f)(1). Federal Defendants even sought-and obtained-an extension of time to file their reply brief, expecting that Plaintiffs would file several responses to their motion to dismiss. See Fed. Defs. Mot. Extension, D.E. 562. Thus, in reality, Plaintiffs had even longer than usual to submit responses. But only Reynolds timely responded. See Reynolds Resp. Opp'n Fed. Defs. Mot. Dismiss, D.E. 549. Plaintiffs did not file their motions for extension of time until late May and early June, and they filed their unapproved memoranda less than a month later.
In considering whether excusable neglect caused a party's delay, the court assesses “the danger of prejudice [to the non-moving party], the length of delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993) (citation omitted); see also Bredell v. Kempthorne, 290 Fed.Appx. 564, 565 (4th Cir. 2008) (unpublished). “[T]he burden of demonstrating excusability lies with the party seeking the extension and a mere concession of palpable oversight or administrative failure generally has been held to fall short of the necessary showing[.]” Thompson v. E.I. Dupont de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996) (emphasis removed) (quotation omitted), superseded by rule on other grounds as stated in Haynes v. Genuine Parts Co., No. 1:13-CV-615, 2015 WL 8484448, at *2 (M.D. N.C. Dec. 9, 2015).
Although illness or disability can sometimes give rise to excusable neglect, Plaintiffs' claims are too vague for the court to conclude that they could not have met their response deadlines. Courts in the Fourth Circuit have found that “a non-debilitating illness does not usually constitute excusable neglect, especially if the [party] was able to perform other litigation tasks during the illness.” Tidwell v. Shreeji Hosp. Airport, LLC, No. 3:10-CV-256-DSC, 2011 WL 2881269, at *1 (W.D. N.C. July 15, 2011) (collecting cases). And other federal courts have explained that, “[w]hile courts will occasionally rely on the illness or disability of a party or attorney when finding excusable neglect, these cases involve extraordinary circumstances, such as a sudden, unexpected, or catastrophic illness, or the party has pointed to specific facts and circumstances demonstrating why the illness or disability caused them to miss the original deadline.” Lehr. Constr. Corp. v. Flaxer, No. 16-cv-4048 (AJN), 2017 U.S. Dist. LEXIS 15407, at *13 (S.D.N.Y. Feb. 2, 2017).
Plaintiffs fail to establish excusable neglect for two reasons. First, they do not explain what their disabilities are or how they impacted their ability to file responses on time. And second, Plaintiffs have had no trouble filing a litany of documents so far-a brief look at the docket belies the contention that Plaintiffs' alleged disabilities have impaired their ability to draft and submit filings.
Plaintiffs had ample time to respond to the Federal Defendants' motion to dismiss months ago, and they fail to explain why they did not do so. Nor do they explain why they did not move for an extension of time during their response window. To grant their motions now would unjustly prejudice the Federal Defendants and delay these proceedings. Thus, their motions for an extension of time (D.E. 608; 609; 611; 612) are denied, and the responses they submitted without the court's permission (D.E. 619; 620; 621; 622; 623; 624) are stricken from the record.
VI. Motions for Jurisdictional Discovery
Next, Plaintiffs have filed three motions requesting jurisdictional discovery. Bradley asks that the court allow her jurisdictional discovery to determine whether Kansas Governor Laura Kelly can be sued in North Carolina. Bradley Mot. Jur. Disc. at 2. The Codys want discovery to determine whether the court can exercise personal jurisdiction over William Clark. Codys Mot. Jur. Disc. at 2. And Sipult would like discovery to assess whether St. Francis Ministries may be haled into a North Carolina court. Sipult Mot. Jur. Disc. at 2.
Typically, the Federal Rules of Civil Procedure prohibit parties from conducting discovery before their Rule 26(f) conference. Fed.R.Civ.P. 26(d). When a party challenges personal jurisdiction, however, the “court may compel discovery to aid its resolution of” that narrow issue. Cent. Wesleyan College v. W.R. Grace & Co., 143 F.R.D. 628, 644 (D.S.C. 1992) (citation omitted). But “[w]hen a plaintiff offers only speculation or conclusory assertions about contacts with a forum state, a court is within its discretion in denying jurisdictional discovery.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003); see also Seaside Farm, Inc. v. United States, 842 F.3d 853, 860 (4th Cir. 2016) (“A party is not entitled to discovery that would be futile or otherwise inadequate to establish a sufficient basis for jurisdiction.”).
The court has already denied these Plaintiffs' previous discovery requests and stayed discovery pending the resolution of Defendants' motions to dismiss. See May 4 Order & M&R at 3-5.
Plaintiffs have failed to show that jurisdictional discovery is warranted. Their complaint makes only a handful of allegations against these Defendants-none related to North Carolina. Governor Kelly is only referenced once in the text of the complaint, where she is named as a Defendant. See Compl. at 9. And while Clark and St. Francis receive a few more mentions, none of their alleged actions took place in North Carolina or targeted North Carolina residents. See, e.g., id. at 111-14, 116. The complaint does not allege any nexus between these three Defendants- who all reside in Kansas-and North Carolina. In fact, as discussed more fully below, this state is hardly referenced in Plaintiffs' complaint at all. And the allegations that do mention North Carolina fail to suggest that jurisdiction is proper here. See, e.g., Compl. at 76 (“[Former] Plaintiff MJR today is happily married and has a happy life in North Carolina.”). In sum, the complaint only offers “speculation or conclusory assertions” that this court can assert personal jurisdiction over these Defendants. See Carefirst, 334 F.3d at 402.
Plaintiffs' motions for jurisdictional discovery do not convert their case for personal jurisdiction from speculative to plausible. They claim that jurisdictional discovery will help them establish that these Defendants have “harmed plaintiff(s) personally by abusing their official position for personal gain and taking part in a nationwide conspiracy that kidnaps children under color of law” and that “these separations are not limited by state borders because children are sent across state lines and to North Carolina.” Codys Mot. Jur. Disc. at 3; Bradley Mot. Jur. Disc. at 3; Sipult Mot. Jur. Disc. at 3. But like their complaint, Plaintiffs' motions provide nothing but unsupported assertions about a nexus between Defendants and North Carolina.
Plaintiffs also argue that all Defendants can be haled into this court because they allege a violation of the Racketeer Influenced and Corrupt Organizations Act. See, e.g., Sipult Mot. Jur. Disc. at 3. For the reasons discussed below, this argument holds no water.
Alongside their motions for jurisdictional discovery, Plaintiffs listed interrogatories that they hope to serve on Governor Kelly, Clark, and St. Francis. See Bradley Mot. Jur. Disc. at 9-10; Codys Mot. Jur. Disc. at 9; Sipult Mot. Jur. Disc. at 5. Only a handful of the questions reference North Carolina-most of the proposed requests have nothing to do with establishing this court's jurisdiction over these Defendants. See, e.g., Codys Mot. Jur. Disc. at 9 (asking Clark for his political and religious affiliations and querying whether he has ever communicated with Kansas government officials); Sipult Mot. Jur. Disc. at 5 (inquiring whether St. Francis has ever subjected a child to “medical clinical trials”); Bradley Mot. Jur. Disc. at 9 (asking Governor Kelly how the state of Kansas gets funding from the federal government). And none of the proposed interrogatories that mention North Carolina are particularized to the alleged harms that these Plaintiffs have suffered. This makes sense-Plaintiffs do not contend that their children have been relocated to North Carolina through any act or omission of any Defendant. See Compl. at 111-16 (contending that these Plaintiffs' children were removed from their care in Kansas and placed in Wichita, Kansas, foster homes).
Taken together, Plaintiffs have failed to show that jurisdictional discovery would aid this court in determining whether it may invoke personal jurisdiction over Governor Kelly, Clark, or St. Francis. Their complaint makes only a few references to these Defendants, and none of their allegations suggest a connection between Defendants and North Carolina. Their motions for jurisdictional discovery do not suggest otherwise. And their proposed interrogatories are largely irrelevant to personal jurisdiction. What's more, even if Defendants answered affirmatively to each proposed interrogatory that mentions the state, it is unclear whether this would form a sufficient basis for this court's jurisdiction over them in this lawsuit. See Seaside Farm, 842 F.3d at 860 (“A party is not entitled to discovery that would be futile or otherwise inadequate to establish a sufficient basis for jurisdiction.”). Thus, the court denies Plaintiffs' motions for jurisdictional discovery (D.E. 613; 614; 615).
VII. Motion for Leave to File Surreply
In the final non-dispositive motion before the court, Reynolds seeks leave to file a surreply to Governor Desantis's reply in support of his motion to dismiss. Reynolds Mot. for Surreply at 2. As discussed above, courts in the Fourth Circuit generally only allow surreplies if the reply brief raises new legal arguments and it would be unfair to bar the moving party from addressing them. See Jefferson, 2012 WL 3629219, at *4. Although she provides no examples, Reynolds contends that Governor DeSantis has “introduced new arguments and assertions that require a timely response.” Reynolds Mot. for Surreply at 6.
A side-by-side comparison of Governor DeSantis's memorandum in support of his motion to dismiss and his reply brief, however, compels the opposite conclusion. The original memorandum makes five arguments for dismissal: Rooker-Feldman doctrine, failure to state a claim, lack of jurisdiction, improper service of process, and immunity. See Mem. Supp. DeSantis Mot. Dismiss at 3-9, D.E. 293. His reply brief, which spans only five pages, covers the same ground. See Reply Supp. DeSantis Mot. Dismiss at 2-3, D.E. 534. Governor DeSantis has introduced no novel legal arguments in his reply brief that merit a response from Reynolds. Thus, the court denies her motion for leave to file a surreply (D.E. 626).
* * *
To recap, the court denies each non-dispositive motion discussed above. It also strikes Plaintiffs' out-of-time responses to Federal Defendants' motion to dismiss. The undersigned will now turn to Reynolds's motion for default judgment against Governor DeSantis and the thirteen pending motions to dismiss.
D.E. 599; 600; 602; 608; 609; 611; 612; 613; 614; 615; 626.
D.E. 619; 620; 621; 622; 623; 624.
VIII. Motion for Default Judgment Against Governor DeSantis
Reynolds seeks default judgment against Governor DeSantis for failure to respond to the complaint in time. Mot. for Default J. ¶ 10. Federal Rule 55 governs the entry of default and default judgment. This two-step process begins when a party “show[s] by affidavit or otherwise” that “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend” the case. Fed.R.Civ.P. 55(a). In that circumstance, the Clerk of Court “must enter the party's default.” Id.
After entry of a default, depending on the type of relief sought, either the Clerk of Court or the court itself can enter a default judgment. If the amount sought “is for a sum certain or a sum that can be made certain by computation,” the Clerk of Court, upon the appropriate showing, can enter a default judgment for the amount sought. Id. 55(b)(1). But “[i]n all other cases, the party must apply to the court for a default judgment.” Id. 55(b)(2).
A key aspect of this process, however, is ensuring that the party who is to be defaulted was properly served with the summons and complaint. Md. State Firemen's Ass'n v. Chaves, 166 F.R.D. 353, 354 (D. Md. 1996) (“It is axiomatic that service of process must be effective under the Federal Rules of Civil Procedure before a default . . . may be entered against a defendant.”). The plaintiff bears the burden of establishing that service of process was effective. Ayres v. Ocwen Loan Servicing, LLC, 129 F.Supp.3d 249, 261 (D. Md. 2015). Without making such a showing, the plaintiff is not entitled to entry of default or default judgment. See, e.g., Dahl v. Kanawha Inv. Holding Co., 161 F.R.D. 673, 685 (N.D. Iowa 1995).
Reynolds has not shown that she properly served Governor DeSantis. The Supreme Court has long held that “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.... As such, it is no different from a suit against the State itself.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (citations omitted). And the Federal Rules mandate that a plaintiff must serve a state government by either “delivering a copy of the summons and of the complaint to its chief executive officer” or by “serving a copy of [the summons and complaint] in the manner prescribed by that state's law for serving a summons or like process on such a defendant.” Fed.R.Civ.P. 4(j)(2)(A)-(B). Under Florida law, a plaintiff must serve process “on the state attorney or an assistant state attorney for the judicial circuit within which the action is brought and by sending two copies of the process by registered or certified mail to the Attorney General.” Fla. Stat. § 48.121.
Reynolds claims that she properly served Governor DeSantis, see Mot. for Default J. ¶ 5, but she provides no evidence that she complied with the Federal Rules or Florida law. In a document elsewhere on the docket, Reynolds claims that an individual named Nicholas S. Wood “served the summons on the [U.S. Postal Service] to serve the defendant Governor Ron DeSantis[.]” See Proof of Service at 1, D.E. 106. Alongside this document, Reynolds provides a screenshot of a Postal Service delivery status update indicating that a package was delivered somewhere in Tallahassee, Florida, on November 9, 2022. Id. at 2. Nowhere does this update mention where in Tallahassee the package was delivered, who the package was addressed to, what it contained, or who sent it.
This evidence is not enough to show that Reynolds properly served Governor DeSantis. And even if Reynolds had established that she served Governor DeSantis in compliance with the Federal Rules, he has now responded to her claims with a motion to dismiss. Thus, the undersigned recommends that the court deny Reynolds's motion to initiate default proceedings against Governor DeSantis (D.E. 442).
IX. Motions to Dismiss
Each Defendant that has responded to Plaintiffs' complaint has moved to dismiss the claims against it. These motions nearly run the Rule 12(b) gamut, with allegations spanning from lack of subject-matter jurisdiction to failure to state a claim (and everything in between). The undersigned will analyze each motion to dismiss in turn, but the upshot is this: All 13 motions to dismiss should be granted, and each moving Defendant should be dismissed from this lawsuit. The court lacks personal jurisdiction over Clark, St. Francis Ministries, Kids Central, the local governments, and the state officials. And Plaintiffs fail to state a claim against Federal Defendants.
Because the moving Defendants should be dismissed from this lawsuit for Plaintiffs' failure to establish personal jurisdiction or failure to state a claim, the undersigned will not address Defendants' other arguments for dismissal.
A. Lack of Personal Jurisdiction
All moving Defendants other than the Federal Defendants allege that this court lacks personal jurisdiction over them. The undersigned agrees.
Federal Defendants maintain that the court lacks personal jurisdiction because Plaintiffs “failed to properly effect service” on them. See Mem. Supp. Fed. Defs. Mot. Dismiss at 2, D.E. 382. Rather than delve into the merits of this claim, the undersigned will discuss whether Plaintiffs have stated a claim against Federal Defendants.
Personal jurisdiction doctrine prevents faraway courts from forcing defendants who have little relation to the forum state to appear before them. It aims to ensure that “the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 277 (4th Cir. 2009) (citation and internal quotation marks omitted). For a court to assert personal jurisdiction over a defendant, the defendant must maintain minimum contacts with the state in which the court sits. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). When a court decides issues of personal jurisdiction at the motion-to-dismiss stage, “the plaintiff need only make a prima facie showing of a sufficient jurisdictional basis to prevail.” Perdue Foods LLC v. BRF S.A., 814 F.3d 185, 188 (4th Cir. 2016).
Plaintiffs must also prove that the law of the forum state allows a foreign defendant to be haled into court there. But North Carolina's long-arm statute “make[s] available to North Carolina courts the full jurisdictional powers permissible under federal due process[,]” Dillon v. Numismatic Funding Corp, 231 S.E.2d 629, 630, 291 N.C. 674 (N.C. 1977) (citation omitted), so the constitutional and statutory inquires converge.
Personal jurisdiction comes in two flavors: general and specific. To establish the court's general personal jurisdiction over an out-of-state defendant, a plaintiff must show that the defendant maintains “continuous and systemic” contacts with the forum state. Helicopteros Nacionales De Columbia v. Hall, 466 U.S. 409, 416 (1984). This is a high bar-if “a suit does not arise out of the defendant's activities in the forum state,” his contacts with the state must be “fairly extensive.” Nichols v. G. D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir. 1993) (citation and internal quotation marks omitted). The Fourth Circuit has cautioned courts against adopting a broad construction of general jurisdiction. Id. at 1200.
As noted below, no Defendant is a resident of North Carolina. So the undersigned cabins this analysis to courts' personal jurisdiction over nonresident parties.
To establish specific personal jurisdiction, the plaintiff must show that the out-of-state defendant “purposefully direct[s] his activities at residents of the forum . . . and the litigation results from alleged injuries that arise out of or relate to those activities[.]” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citations and internal quotation marks omitted); see also Sneha Media & Entm't, LLC v. Associated Broad. Co. P Ltd., 911 F.3d 192, 198 (4th Cir. 2018) (noting that specific personal jurisdiction requires “that the defendant purposely established minimum contacts in the forum state such that it should reasonably anticipate being haled into court there on a claim arising out of those contacts”) (citation omitted).
The Fourth Circuit has explained that, in determining whether specific personal jurisdiction over a defendant exists, courts should “consider (1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.” ALS Scan, Inc. v. Digit. Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002). The court must find that the plaintiff has satisfied each of these three prongs. Perdue Foods, 814 F.3d at 189.
To begin with, the text of Plaintiffs' complaint rarely mentions North Carolina-the references to the state largely consist of off-topic statements about now-dismissed Plaintiff Melony Rodgers. See, e.g., Compl. at 76 (“[Former] Plaintiff MJR today is happily married and has a happy life in North Carolina.”). Rodgers-who lost custody of her children while residing in California- moved to North Carolina before initiating this lawsuit. See generally id. at 49-79. But it is unclear whether a single alleged fact in this former Plaintiff's affidavit-style claims took place in North Carolina. Thus, it is difficult at the outset for the undersigned to understand how any Defendant's contacts with North Carolina are sufficient to hale them into court within the state.
Taking Plaintiffs' complaint as a whole, the undersigned concludes that they fail to make a prima facie showing that the court has general or specific personal jurisdiction over Clark, St. Francis Ministries, Kids Central, the local governments, or the state officials. First, Plaintiffs have not alleged that these Defendants' contacts with North Carolina are sufficiently “continuous and systematic,” Helicopteros Nacionales, 466 U.S. at 416, for this court to invoke general personal jurisdiction over them. And second, Plaintiffs fail to establish that the court may assert specific personal jurisdiction over any of these Defendants.
1. RICO and Conspiracy Jurisdiction
Before delving into the merits of each motion to dismiss, the undersigned must address an argument that several Plaintiffs raise in response to Defendants' personal jurisdiction claims. As explained below, Plaintiffs make very few factual claims against any Defendant-much less claims about how Defendants' alleged conduct traces back to minimum contacts with North Carolina. But they still maintain that this court may hale each Defendant into this court under “[t]he conspiracy theory of jurisdiction[.]” Resp. Opp'n DeSantis Mot. Dismiss at 12, D.E. 504; see also First Resp. Opp'n Kelly Mot. Dismiss at 2, D.E. 501. Under Plaintiffs' theory, this court has personal jurisdiction over all Defendants because they have allegedly violated the Racketeering Influenced and Corrupt Organizations Act and are engaged in a nationwide conspiracy to divest parents of custody over their children. See, e.g., Resp. Opp'n DeSantis Mot. Dismiss at 12. Citing caselaw that does not bind this court, Plaintiffs essentially claim that the court can assert personal jurisdiction over every Defendant because it has personal jurisdiction over Federal Defendants. See id. at 12-13 (citing Vt. Castings, Inc. v. Evans Prods. Co., 510 F.Supp. 940, 944 (D. Vt. 1981)).
But as discussed below, Plaintiffs have failed to state a claim against Federal Defendants under RICO. So, to the extent that their jurisdictional argument turns on this court's assertion of personal jurisdiction over Federal Defendants, that argument fails because Federal Defendants should be dismissed from this action.
But even if Plaintiffs have stated a claim under RICO against a Defendant amenable to suit in this state, their jurisdictional claim holds no water. RICO allows courts to exert personal jurisdiction over far-flung Defendants when “it is shown that the ends of justice require that other parties residing in any other district be brought before the court[.]” 18 U.S.C. § 1965(b). And the Fourth Circuit has found that, although RICO claims generally relax personal jurisdiction requirements when all defendants have been properly served with process in district where they reside, courts must still ensure that their assertion of personal jurisdiction over a RICO defendant “comports with the Fifth Amendment.” ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 627 (4th Cir. 1997). In analyzing this constitutional mandate, the Fourth Circuit considered whether “extreme inconvenience or unfairness” would befall the defendants and whether “the dictates of judicial efficiency” counsel against the exercise of personal jurisdiction. Id.
This is unlikely-Plaintiffs' RICO claim almost certainly fails on its face. For a private citizen to state a claim under RICO, he must allege that he has been “injured in his business or property[.]” 18 U.S.C. § 1964(c). But the complaint does not focus on injuries to business or property-instead, it contends that the RICO conspiracy deprived Plaintiffs of custody over their children. See, e.g., Compl. ¶¶ 417-23. This cause of action is also likely barred by Rooker-Feldman doctrine. See, e.g., Davit v. Davit, 366 F.Supp.2d 641, 651 (N.D. Ill. 2004) (collecting cases in which district courts dismissed RICO challenges to child custody and divorce proceedings). And in the end, Plaintiffs' RICO allegations are too far-flung and vague to implicate any individual Defendant.
As the undersigned discusses below, there is very little indication that Defendants have been properly served. Seven motions to dismiss allege improper service, and most named Defendants have not responded to this lawsuit- likely because they did not receive proper notice of it.
Here, each factor counsels against the exercise of personal jurisdiction under RICO. Plaintiffs have sued upwards of 50 Defendants across the nation-most of whom are public actors. But the six Plaintiffs who remain in this case only allege injuries in three states: Florida, Kansas, and Connecticut. And none of the now-dismissed Plaintiffs claimed to suffer harm in North Carolina. Thus, forcing each Defendant to appear before this court when not one alleged injury stems from any act or omission related to the state in which this court sits would impose “extreme inconvenience or unfairness” on them. It would also be inefficient-neither this court nor this state has even a tangential relationship to the remaining Plaintiffs' claims. And despite the length of Plaintiffs' complaint, they do not explain how specific Defendants conspired to deprive them of their rights, why Defendants did so, or any other specific details about the conspiracy.
In sum, even if the court assumes Plaintiffs have stated a claim under RICO and perfected service against each Defendant (both of which are doubtful), the assertion of this court's personal jurisdiction over dozens of Defendants scattered across the nation would contravene due process. Thus, the undersigned concludes that “the ends of justice” do not “require” this court to assert personal jurisdiction over Defendants under RICO. 18 U.S.C. § 1965(b). And because Plaintiffs may not use their RICO claim as a jurisdictional catch-all, the undersigned will discuss each motion to dismiss for lack of personal jurisdiction in turn.
2. Private Defendants
Three private actors have moved to dismiss the claims against them: Clark, St. Francis Ministries (Clark's employer), and Kids Central. As these Defendants point out, Plaintiffs cannot establish the court's general or specific personal jurisdiction over any of them, as none maintains requisite minimum contacts with North Carolina.
a) Clark and St. Francis Ministries
Clark and St. Francis Ministries claim that they “did not purposefully direct any conduct at North Carolina that gave rise to this litigation[.]” Mem. Supp. Clark & SFM Mot. Dismiss at 7, D.E. 271. According to an affidavit submitted by Clark, he is a citizen of Kansas, and St. Francis is a Kansas corporation whose principal place of business is also in Kansas. See Clark Affidavit ¶¶ 4-5, 18, D.E. 271-1. Neither Clark nor St. Francis conducts any business in North Carolina, and St. Francis is not licensed to provide foster care in the state. Id. ¶¶ 7-8, 10. Nor does it direct advertisements toward North Carolinians. Id. ¶ 13.
Plaintiffs' claims do not suggest otherwise. The complaint alleges that St. Francis is a placement agency for the Department of Children and Families in Sedgwick County, Kansas. Compl. at 113-14. Sipult and the Codys contend that St. Francis employees interfered with Sipult's parent-child relationship. See, e.g., Compl. at 111-14. And Bradley alleges that a St. Francis employee removed her children from her mother's home in Wichita, Kansas. Id. at 116. These children were allegedly placed in Wichita foster homes. Id.
The complaint makes no attempt to explain how these incidents-which all took place in Kansas-connect Clark or St. Francis to North Carolina. In Plaintiffs' response to Clark's and St. Francis's motion to dismiss, they claim that personal jurisdiction is proper because these Defendants operate in “several states” and “can appear by video conference as well as submit documents via electronic service.” Resp. Opp'n Clark & SFM Mot. Dismiss ¶ 65, D.E. 404. They also maintain that this court has jurisdiction over these Defendants because they “have defense attorneys located here in North Carolina and they are knowledgeable of local rules and procedures.” Id. ¶ 66. Thus, Plaintiffs contend, neither Clark nor St. Francis will face prejudice if they are forced to litigate in North Carolina. Id.
In addition to this response, Sipult and the Codys filed nearly identical documents titled “Plaintiff's Opposition to Motion to Dismiss by St[.] Francis Ministries[,]” but these filings discuss Governor Kelly's motion to dismiss. See Codys Resp. Opp'n Clark & SFM Mot. Dismiss, D.E. 542; Sipult Resp. Opp'n Clark & SFM Mot. Dismiss, D.E. 544.
But this is not the law. To force these foreign Defendants to appear in a North Carolina court, Plaintiffs must make one of two prima facie showings-they must either establish that Clark and St. Francis maintain “continuous and systematic” contacts with the state, Helicopteros Nacionales, 466 U.S. at 416, or they must indicate that these Defendants “purposefully directed [their] activities at residents of the forum . . . and the litigation results from alleged injuries that arise out of or relate to those activities,” Burger King, 471 U.S. at 472 (cleaned up). But Plaintiffs allege no nexus between Clark and St. Francis and the state of North Carolina. Thus, the district court should grant these Defendants' motion to dismiss (D.E. 270).
b) Kids Central
Next, Kids Central contends that Plaintiffs cannot establish this court's personal jurisdiction over it because they fail to “allege that Kids Central engaged in any activity at all, let alone purposeful activity, in North Carolina.” Mem. Supp. Kids Central Mot. Dismiss at 11, D.E. 273. The undersigned agrees.
Plaintiffs rightly allege that Kids Central is a corporation headquartered in Florida. Compl. at 10. But this is the only time the organization appears in their complaint. Plaintiffs do not make any factual allegations against Kids Central-much less allegations that it maintains contacts with North Carolina. Plaintiffs' single paragraph stating that the organization is headquartered in a foreign state is a far cry from the allegations necessary to establish a prima facie showing that this court may exercise general or specific jurisdiction over it. Thus, the court should grant Kids Central's motion to dismiss (D.E. 272).
A now-dismissed Plaintiff, Gerri Hood, filed a memorandum opposing Kids Central's motion to dismiss. Mem. Opp'n Kids Central Mot. Dismiss, D.E. 505. But Hood filed the memorandum months after the court narrowed the pool of Plaintiffs down to six individuals. Thus, the court should disregard Hood's brief. See Local R. Civ. P. 7.1(f) (”Any party may file a written response to any motion.”) (emphasis added). No other response to Kids Central's motion was filed.
3. Local Government Defendants
Next, five county governments have moved to dismiss Plaintiffs' complaint. Kings County, New York; Los Angeles County, California; Kent County, Michigan; Miami-Dade County, Florida; and Monterey County, California all contend that this court lacks personal jurisdiction over them. Each county is correct.
At risk of stating the obvious, none of these county governments are residents of North Carolina. Cf. S.C. Dep't of Disabilities & Special Needs v. Hoover Universal, Inc., 535 F.3d 300, 303 (4th Cir. 2008) (explaining that a political subdivision of a state may be considered a citizen of that state in diversity lawsuits).
a) Kings County, New York
Kings County maintains that the court lacks specific personal jurisdiction over it because “Plaintiffs' claims against [it] do not arise from or relate to contacts between Kings County . . . and the state of North Carolina.” Mem. Supp. Kings Cnty. Mot. Dismiss at 12, D.E. 238. And it believes the court cannot assert general personal jurisdiction over it because it “has no affiliations with North Carolina sufficient to create a legal or factual basis to render Kings County essentially at home in North Carolina.” Id. at 13 (citing Daimler AG v. Bauman, 571 U.S. 117, 138 (2014)). As a political subdivision of New York, Kings County conducts no business, pays no taxes, owns no property, and maintains no employees in North Carolina. Id. Thus, the County argues, it cannot be haled into court within the state. Id. at 12-14.
Plaintiffs' complaint says very little about Kings County. In fact, like Kids Central, Kings County is only mentioned in the portion of the complaint where Plaintiffs list all Defendants. Compl. at 11. No other allegations are made against the County. As explained above, a single paragraph listing Kings County's New York address is not enough to make a prima facie case for this court's general or specific personal jurisdiction over this Defendant. The district court should therefore grant Kings County's motion to dismiss (D.E. 237).
As with Kids Central, a former Plaintiff responded to Kings County's motion to dismiss after he was dismissed from this lawsuit. See Chapman Resp. Opp'n Kings Cnty. Mot Dismiss, D.E. 308. This is the only response opposing the County's motion, and the court should disregard it.
b) Los Angeles County, California
Los Angeles County raises similar arguments, and the court should grant its motion to dismiss for similar reasons. The County claims that Plaintiffs have failed to allege that it maintains sufficient minimum contacts with North Carolina to subject it to suit here. See Mem. Supp. L.A. Cnty. Mot. Dismiss at 6-7, D.E. 269.
The complaint contains more factual allegations against Los Angeles County employees than other Defendants. See, e.g., Compl. at 54 (discussing actions of Los Angeles Dependency Lawyers); id. at 88 (claiming that Los Angeles County Department of Children and Family Services removed a child from a former Plaintiff's custody after she tested positive for drugs). But even though (former) Plaintiffs make allegations against the County's employees, their claims against Los Angeles County fail for the same reason as those discussed above-there is no meaningful connection between the County and North Carolina.
Reading the complaint in the light most favorable to Plaintiffs, former Plaintiff Melody Rodgers called LACDCFS employees to discuss her California child custody arrangement after she moved to North Carolina. See id. at 57. But a single phone conversation about out-of-state child custody matters with a now-dismissed Plaintiff who moved to North Carolina on her own accord cannot establish that Los Angeles County has intentionally established a sufficient presence in the state to subject it to suit here.
In response to the County's motion, Plaintiff Reynolds contends that specific personal jurisdiction is proper because Los Angeles County “had more than minimum contact with Plaintiff Melody Rodgers.” Resp. Opp'n L.A. Cnty. Mot. Dismiss ¶ 46, D.E. 354. This is because the County removed Rodgers's children from her custody “and force[d] her to litigate a case in California.” Id. It also allegedly coordinated with North Carolina child services officers to “harass and intimidate” Rodgers and “conduct investigation on behalf of Los Angeles.” Id. ¶ 53. The latter allegations are absent from the complaint, and the court need not consider them. See, e.g., Bratcher v. Pharm. Prod. Dev., Inc., 545 F.Supp.2d 533, 542 (E.D. N.C. 2008) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”)).
Reynolds also contends that personal jurisdiction is proper because Los Angeles County “can appear by video conference as well as submit documents via electronic service.” Mem. Opp'n L.A. Cnty. Mot. Dismiss ¶ 52. For the reasons stated above, this argument fails.
Setting aside the fact that Reynolds's response argues exclusively on behalf of a now-dismissed Plaintiff, her arguments are unavailing. When a court assesses whether it can assert specific personal jurisdiction over a Defendant, it must “consider (1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.” ALS Scan, 293 F.3d at 712.
The docket teems with filings asserting the legal rights of people other than the individual who filed the document. The undersigned notes that many of the six remaining Plaintiffs' claims could likely be dismissed for lack of standing-despite residing in Florida, Kansas, and Connecticut, they maintain claims against state and local government officials all across the country who played no part in their individual injuries.
Plaintiffs fail on all three prongs. First, Los Angeles County's only alleged contact with North Carolina stemmed from former Plaintiff Rodgers's decision to move to the state while she had ongoing child custody proceedings in California. It did not independently target North Carolina for any of its operations. And the text of the complaint suggests that Rodgers contacted the County's employees while she lived in North Carolina-not the other way around. See Compl. at 57. Second, the harm that Rodgers allegedly suffered, the loss of custody over her children, occurred in California-not North Carolina. See id. at 54-55. The mere fact that she contacted Los Angeles County employees while residing in North Carolina cannot serve as a sufficient basis for this court's personal jurisdiction over the County.
And finally, even if Los Angeles County did coordinate with North Carolina officials to investigate Rodgers after she moved to the state (and the court determined that this contact satisfied the first two prongs of ALS Scan), the exercise of personal jurisdiction over the County would be unreasonable. See, e.g., Asahi Metal Indus. Co. v. Superior Ct. of Cal., 480 U.S. 102, 113 (1987). In Asahi, the Supreme Court explained that reasonableness turns on several factors, including “the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief.” Id.
Each of these factors weighs against Plaintiffs. Forcing Los Angeles County to litigate a cross-costal lawsuit about events that allegedly occurred in California would impose a significant burden. It is also unclear what interest North Carolina has in this lawsuit-although Rodgers allegedly lives in the state now, her child custody proceedings all took place in California. And Rodgers, who claims to have suffered harm at the hands of Los Angeles County employees, is no longer a party to this action. Taken together, these factors compel the conclusion that the exercise of personal jurisdiction over the County would be unreasonable even if it did avail itself of operating within North Carolina.
In sum, Plaintiffs fail to establish that the court may exercise general or specific personal jurisdiction over Los Angeles County. The court should grant its motion to dismiss (D.E. 268).
c) Kent County, Michigan
Kent County-a political subdivision of Michigan-also contends that the court lacks personal jurisdiction over it. See Mem. Supp. Kent Cnty. Mot. Dismiss at 2-4, D.E. 295. The County maintains that the complaint “lack[s] any allegation that [it] has ever had any contacts with the State of North Carolina, much less that those contacts form the basis for these plaintiffs' suit.” Id. at 4.
Like several Defendants discussed above, Kent County is hardly mentioned in the complaint. The only specific allegation about the County is that it maintains an address in Grand Rapids, Michigan. Compl. at 11. It is also included in the caption for Plaintiffs' Monell claim, but the subsequent language does not describe any specific actions taken by Kent County officials that violated Plaintiffs' rights. See id. at 132-38. Plaintiffs, in other words, make no substantive claims about Kent County, and they do not connect any County employee's action to the state of North Carolina. This blanket omission of allegations particularized to Kent County-in North Carolina or otherwise-precludes the court from exercising general or specific personal jurisdiction against it. Thus, the court should grant Kent County's motion to dismiss (D.E. 294).
Two former Plaintiffs filed memoranda opposing Kent County's motion to dismiss. See Borghese Resp. Opp'n Kent Cnty. Mot. Dismiss, D.E. 536; Ritsema Resp. Opp'n Kent Cnty. Mot Dismiss, D.E. 537. The court should disregard these filings.
d) Miami-Dade County, Florida
Miami-Dade County alleges that the court should not exercise personal jurisdiction over it because Plaintiffs fail to allege “either specific or general contacts between the County and North Carolina.” Mem. Supp. Miami-Dade Cnty. Mot. Dismiss at 4, D.E. 318. The County is correct- the complaint only mentions Miami-Dade County when listing all Defendants. Compl. at 11. Plaintiffs make no reference to the County elsewhere in their complaint, and no Plaintiff has filed a response to the County's motion. As discussed above, such scant allegations against a defendant leave the court with no basis to exercise personal jurisdiction over it. So, as with other Defendants only obliquely mentioned in the complaint, the court should grant Miami-Dade County's motion to dismiss (D.E. 317) for lack of personal jurisdiction.
e) Monterey County, California
The final local government that has moved to dismiss is Monterey County. It alleges that it maintains no contact with North Carolina (or, for that matter, any of the remaining Plaintiffs). See Mem. Supp. Monterey Cnty. Mot. Dismiss at 3, D.E. 336. Monterey County receives minimal attention in the complaint-Plaintiffs sole reference to the County simply lists it as a Defendant. Compl. at 11. For the reasons discussed above, the complaint does not allege sufficient facts against the County for the court to assert general or specific personal jurisdiction against it. Thus, the court should grant its motion to dismiss (D.E. 335).
4. State Official Defendants
A handful of state governors and Texas Attorney General Ken Paxton also maintain that the court lacks personal jurisdiction over them. The undersigned agrees.
a) Texas Governor Abbott and Attorney General Paxton
Paxton and Governor Abbott contend that “Plaintiffs assert no facts suggesting that [they] purposely directed their activities to North Carolina residents, nor do their claims arise from any such phantom activities.” Mem. Supp. Abbott & Paxton Mot. Dismiss at 6, D.E. 217. Thus, they contend that the court lacks personal jurisdiction over them. Id.
Like many of Plaintiffs' other targets, Paxton and Governor Abbott are hardly mentioned in the complaint. They are each listed as Defendants, see Compl. at 7, 10, but Plaintiffs allege no factual claims against them. Instead, they conclude (with no support) that Paxton and Abbott neglected to prevent the abuse, fraud, and human trafficking allegedly plaguing Texas. Id. And while two responses opposing their motion to dismiss appear on the docket, neither was filed by someone who remains a Plaintiff in this suit. See Save Our Children Truth Comm'n Resp. Opp'n Abbott & Paxton Mot. Dismiss, D.E. 254; Rodgers & Save Our Children Truth Comm'n Resp. Opp'n Abbott & Paxton Mot. Dismiss, D.E. 257. Because Rodgers and the Save Our Children Truth Commission are no longer parties-and their filings exclusively discuss the rights of other now-dismissed Plaintiffs-the court should disregard these responses.
At bottom, despite suggesting that Paxton and Governor Abbott have participated in a grand conspiracy alongside every other Defendant to deprive parents of custody over their children, Plaintiffs' complaint makes no factual allegations particular to these Defendants. And it certainly draws no connection between the Texas officials and the state of North Carolina. Thus, the court should grant Paxton's and Abbott's motion to dismiss (D.E. 216) for lack of personal jurisdiction.
b) New York Governor Hochul
Next is Governor Hochul. Like Paxton and Governor Abbott, she alleges that the court lacks personal jurisdiction over her because “[t]he complaint does not assert facts suggesting that [she] purposely directed activities to North Carolina residents, nor do Plaintiffs' claims arise from any such alleged activities[.]” Mem. Supp. Hochul Mot. Dismiss at 5, D.E. 262.
Once again, Plaintiffs make no specific factual claims to buttress the complaint's lone paragraph that mentions Governor Hochul. In that paragraph, Plaintiffs list her as a Defendant and contend that she failed to prevent the abuse, corruption, fraud, and human trafficking alleged elsewhere in the complaint. See Compl. at 9. But nowhere do they provide facts about what Governor Hochul did (or failed to do) that caused Plaintiffs harm, and they do not explain how any of the Governor's actions relate to North Carolina. Put differently, Plaintiffs' allegations fail to make a prima facie case for the court's general or specific personal jurisdiction over Governor Hochul, and the court should grant her motion to dismiss (D.E. 261).
A former Plaintiff filed a response to Governor Hochul's motion to dismiss after he was removed from this lawsuit. See Chapman Resp. Opp'n Hochul Mot. Dismiss, D.E. 325. As with other filings from former Plaintiffs, the court should disregard this document.
c) Tennessee Governor Lee
Governor Lee also maintains that the court lacks personal jurisdiction over him. Because “Plaintiffs do not allege that [he] engaged in any purposeful activity in North Carolina[,]” Governor Lee contends that they have failed “to establish a prima facie case of general or specific jurisdiction” over him. Mem. Supp. Lee Mot. Dismiss at 5, D.E. 266 (emphasis removed). In fact, the Governor claims that “there are no specific, factual allegations of any act by” him in the complaint. Id.
The Governor is correct. As with the other state official Defendants discussed above, the complaint only mentions Lee in a single paragraph that names him as a Defendant and makes legal conclusions about his participation in Plaintiffs' alleged conspiracy. See Compl. at 8-9. Absent is any discussion of Governor Lee's specific (in)action that caused Plaintiffs harm or any hint at a nexus between the Governor and the state of North Carolina. The allegations contained in the complaint give the court no basis to conclude that it may drag Governor Lee into a North Carolina court; his motion to dismiss (D.E. 265) should be granted.
Once again, the only response to Governor Lee's motion was filed by a former Plaintiff months after she was dismissed from this lawsuit. See Jhonson Resp. Opp'n Lee Mot. Dismiss, D.E. 538.
As discussed above, Governor DeSantis was also not properly served. This constitutes separate grounds for dismissal.
Governor DeSantis contends that he “has no meaningful connection to North Carolina, and Plaintiffs allege no facts suggesting otherwise.” Mem. Supp. DeSantis Mot. Dismiss at 7. This, the Governor argues, precludes the court from exercising personal jurisdiction over him. Id.
In a now-familiar pattern, the complaint only mentions Governor DeSantis once. That single reference names the Governor as a Defendant and alleges that he, like the other governors, has failed to prevent the fraud, abuse, corruption, and human trafficking that allegedly permeate child custody proceedings nationwide. See Compl. at 8. Other than advocating for the RICO conspiracy theory of jurisdiction rejected above, Plaintiffs' response to Governor DeSantis's motion offers little. See Mem. Opp'n DeSantis Mot. Dismiss at 12-16. In short, Plaintiffs point to no authority suggesting that the court should exercise jurisdiction over Governor DeSantis. The court should therefore grant his motion to dismiss (D.E. 292).
e) Kansas Governor Kelly
To wrap up this discussion on personal jurisdiction, the undersigned will turn to Governor Kelly's motion to dismiss. She claims that she “has no ties to North Carolina” and that, in her role as Kansas Governor, she “directed no activities at the residents of” North Carolina. Mem. Supp. Kelly Mot. Dismiss at 5, D.E. 369. Thus, she alleges, the court must dismiss her from this case for lack of personal jurisdiction. Id.
The complaint only mentions Governor Kelly once. There, it names her as a Defendant and alleges that she failed to prevent the fraud, abuse, corruption, and human trafficking scheme that purportedly pervades the child welfare system nationwide. Compl. at 9.
Because several of the remaining Plaintiffs allege harms in Kansas, Governor Kelly's motion to dismiss received multiple responses. Procedurally, the responses are a mess. The same three Plaintiffs-Sipult and the Codys-have filed five responses to Governor Kelly's motion. The first response bears all three Plaintiffs' signatures. See First Resp. Opp'n Kelly Mot. Dismiss at 5. The second response, filed by the Codys, is nearly identical to the third response, which Sipult submitted. Compare Second Resp. Opp'n Kelly Mot. Dismiss, D.E. 542, with Third Resp. Opp'n Kelly Mot. Dismiss, D.E. 544. The fourth response (filed by the Codys) and fifth response (filed by Sipult) are also similar. Compare Fourth Resp. Opp'n Kelly Mot. Dismiss, D.E. 579, with Fifth Resp. Opp'n Kelly Mot. Dismiss, D.E. 586. Although several of these filings are untimely and the court never authorized Plaintiffs to file multiple responses to Governor Kelly's motion, the undersigned will address their merits.
Alongside the responses that the undersigned addresses, two others were filed by Plaintiff Bradley. The court struck Bradley's first response because it bore Kelly Patton's signature and expressly instructed her to file a new response that she authored and signed. See May 4 Order & M&R at 10. But Bradley's second response was also drafted and signed by Patton. See Second Bradley Resp. Opp'n Kelly Mot. Dismiss at 5-6. Thus, the court should disregard Bradley's responses to Governor Kelly's motion to dismiss.
Both these filings are captioned as responses to Clark's and St. Francis's motion to dismiss, but they target Governor Kelly's motion.
Plaintiffs' first response only obliquely addresses Governor Kelly's personal jurisdiction argument. It concludes (with no analysis) that personal jurisdiction is proper under RICO. See First Resp. Opp'n Kelly Mot. Dismiss at 2. For the reasons discussed above, this argument is unavailing.
The second and third responses repeat Plaintiffs' unsupported RICO conspiracy jurisdiction arguments, but they also ask the court to allow jurisdictional discovery to determine whether it may hear their claims against Governor Kelly. See Second Resp. Opp'n Kelly Mot. Dismiss ¶ 20; Third Resp. Opp'n Kelly Mot. Dismiss ¶ 20. But, as discussed above, Plaintiffs have not demonstrated that jurisdictional discovery will aid the court in determining whether any Defendant is amenable to suit in North Carolina. And aside from this issue, Plaintiffs' second and third responses to Governor Kelly's motion to dismiss bring nothing new to the table. Thus, they also fail to make a prima facie case for this court's personal jurisdiction over her.
Finally, Plaintiffs' fourth and fifth responses to the Governor's motion to dismiss contend that the court should strike her motion because she is in default. See Fourth Resp. Opp'n Kelly Mot. Dismiss at 1-2; Fifth Resp. Opp'n Kelly Mot. Dismiss at 3-4. These claims are meritless. In January 2023, Sipult and the Codys moved for default judgment against Governor Kelly. See Sipult Mot. for Default J. Against Kelly, D.E. 341; Codys Mot. for Default J. Against Kelly, D.E. 344. The court denied both motions the next month. See Order Denying Misc. Mots., D.E. 373. Governor Kelly is not in default, and Plaintiffs' claims to the contrary do not address her personal jurisdiction arguments.
In sum, as with the other state official Defendants, Plaintiffs have failed to make a prima facie showing of this court's personal jurisdiction over Governor Kelly. Thus, the court should grant her motion to dismiss (D.E. 368).
B. Failure to State a Claim Against Federal Defendants
Because the court should dismiss all Defendants discussed above for lack of personal jurisdiction, only the Federal Defendants' motion to dismiss remains. It contends contend that Plaintiffs have failed to state a claim against Federal Defendants, and the undersigned agrees.
The Supreme Court has found that, to withstand 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) (citation and internal quotation marks omitted). The Court explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Therefore, while a court must accept all the factual allegations contained in a complaint as true, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Id.
After Iqbal, a court considering a motion under Rule 12(b)(6) must subject a complaint to a two-part test. First, the court must identify the allegations in the complaint that are not entitled to the assumption of truth because they are conclusory in nature or nothing more than a formulaic recitation of the elements of a claim. Id. at 679. Then, taking the remaining factual allegations as true, the court must determine whether the complaint “plausibly suggest[s] an entitlement to relief.” Id. If, after conducting this two-part analysis, “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘shown'-'that the pleader is entitled to relief'” Id. (quoting Fed.R.Civ.P. 8(a)(2)). If a party fails to show that he is entitled to relief, the court must dismiss the deficient claims.
Plaintiffs' pro se status relaxes, but does not eliminate, the requirement that their complaint contain facially plausible claims. Although a court must liberally construe a pro se plaintiff's allegations, it “cannot ignore a clear failure to allege facts” that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F.Supp.2d 766, 776 (E.D. N.C. 2011). “The special judicial solicitude with which a district court should view . . . pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed.” Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (quotation omitted). Every party, pro se or otherwise, must comply with the Federal Rules of Civil Procedure. See Iqbal, 556 U.S. at 678; Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per curiam).
Plaintiffs bring claims under a slew of state and federal statutes, but it's unclear how Federal Defendants are implicated in any of their claims. After Federal Defendants moved to dismiss, only a single Plaintiff-Laurie Reynolds-responded in time. See Resp. Opp'n Fed. Defs. Mot. Dismiss, D.E. 549. Because Federal Defendants have not waived their immunity for some claims, and Plaintiffs have failed to state a claim on those that remain, the court should grant Federal Defendants' motion to dismiss. The undersigned will discuss each claim against Federal Defendants in turn.
In her response, Reynolds alleges-for the first time-that Federal Defendants may also be sued under the Federal Tort Claims Act and the Tucker Act. See Resp. Opp'n Fed. Defs. Mot. Dismiss ¶¶ 126, 133. These claims were not raised in Plaintiffs' complaint, and the court should not consider them.
1. Count One: Section 1983
Plaintiffs have sued Federal Defendants under 42 U.S.C. § 1983. Compl. at 124. That statute creates civil liability for any person acting under color of state law who deprives a plaintiff of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States. So “[t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); see also Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
But the United States and its employees are federal-not state-actors, so they cannot be sued under § 1983. See, e.g., Dowe v. Total Action Against Poverty, 145 F.3d 653, 658 (4th Cir. 1998) (“§ 1983 does not apply to federal actors.”) (citing Wheeldin v. Wheeler, 373 U.S. 647, 650 n.2 (1963)). Still, Reynolds contends that Plaintiffs may sue Federal Defendants under the statute because they maintained “a supervisory role . . . over state and local governments” and conspired with state officials to deprive Plaintiffs of their rights. Resp. Opp'n Fed. Defs. Mot. Dismiss ¶ 110. Reynolds is wrong.
While private actors may be held liable under § 1983 in some cases, see, e.g., Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615-16 (4th Cir. 2009), the Supreme Court has made clear that “actions of the Federal Government and its officers are beyond the purview” of the Fourteenth Amendment and § 1983. District of Colombia v. Carter, 409 U.S. 418, 424-25 (1973), superseded by statute on other grounds as stated in Inmates of D.C. Jail v. Jackson, 158 F.3d 1357 (D.C. Cir. 1998). Thus, the district court should dismiss Plaintiffs' § 1983 claims against Federal Defendants.
2. Counts Two and Three: Conspiracy
Counts two and three allege that Federal Defendants conspired with other Defendants to deny Plaintiffs their equal rights, in violation of 42 U.S.C. §§ 1985(3) and 1986. See Compl. at 127-32. Section 1985(3) imposes liability on individuals who “conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws[.]” And § 1986 provides a remedy against anyone who knows about a § 1985 conspiracy but “neglects or refuses to” prevent the conspiracy, despite having the power to do so. Stating a claim under these statutes poses a heavy burden-the Fourth Circuit has “rarely, if ever, found that a plaintiff has set forth sufficient facts to establish a section 1985 conspiracy.” Strickland v. United States, 32 F.4th 311, 362 (4th Cir. 2022) (quotation omitted). Without “concrete supporting facts[,]” a conspiracy claim must fail. Id. (quotation omitted).
Plaintiffs claim that Federal Defendants violated § 1985(3) because they “conspired to use trickery, duress, fabrication and/or false testimony or evidence” to “interfere[] with Plaintiff's rights, including the right to familial association[.]” Compl. at 129. They also contend that Federal Defendants failed to prevent this conspiracy in violation of § 1986. Id. at 131.
But circuit courts routinely hold that federal actors may not be sued under §§ 1985 or 1986 in their official capacities. See, e.g., Davis v. U.S. Dep't of Just., 204 F.3d 723, 726 (7th Cir. 2000); Affiliated Pro. Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999); Fuqua v. Turner, 996 F.3d 1140, 1157 (11th Cir. 2021). Thus, Plaintiffs' official-capacity conspiracy claims against Federal Defendants should be dismissed.
To the extent Plaintiffs assert individual-capacity conspiracy claims against Federal Defendants, those claims share the same fate. Plaintiffs' allegations do not give rise to a credible inference that any individual Federal Defendant conspired with anyone else to deprive them of their rights. Instead, they offer mere conclusory allegations that the conspiratorial buck must stop with the federal government. See, e.g., Compl. at 129 (“Defendants also conspired to leave children in abusive situations and covered up real abuse, in order to give rise to situations that would justify the need of an increased budget.”). In fact, it's difficult to discern how Federal Defendants fit into Plaintiffs claims to begin with-Plaintiffs challenge the resolution of state-level child custody proceedings, and Federal Defendants have no relation at all to these proceedings. See id. at 128 (“[D]efendants . . . act under color of law in their capacities as employees for local, county and state public entities[.]”). In sum, Plaintiffs have failed to state a conspiracy claim against any Federal Defendant in any capacity.
3. Count Five: Fraud and RICO
Count five alleges all kinds of fraud. Compl. at 138. And while the complaint does not list a distinct cause of action under RICO, Reynolds's response to Federal Defendants' motion to dismiss suggests that count five also intends to allege a RICO claim. See Mem. Opp'n Fed. Defs. Mot. Dismiss ¶¶ 169, 178, 220. Out of an abundance of caution-and construing the complaint in the light most favorable to Plaintiffs-the undersigned will address both fraud and RICO.
Plaintiffs' fraud claims fail for three reasons: First, they are trying to bring a civil suit for the violation of criminal statutes. See id. (alleging “Honest Serves Fraud” and “Mail Fraud”); see also 18 U.S.C. § 1346 (criminalizing honest services fraud); 18 U.S.C. § 1341 (criminalizing mail fraud). But criminal statutes “proscribe crimes; they do not, of themselves, create civil liability.” Kebort v. Stiehl, No. 5:17-CV-418-D, 2018 WL 2927762, at *3 (E.D. N.C. May 17, 2018); see also Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 190 (1994) (refusing to infer a private right of action from a “bare criminal statute”). While a federal prosecutor could bring charges against a defendant who violated a federal criminal law, private citizens may not. See McMillan v. Ratner Companies, C/A No. 3:19-1698-CMC-SVH, 2019 WL 3900204, at *2 (D.S.C. July 19, 2019), adopted by 2019 WL 3890841 (D.S.C. Aug. 19, 2019). The lack of any legally cognizable interest renders at least some of Plaintiffs' fraud claims against Federal Defendants frivolous. The district court should dismiss them.
Second, Federal Defendants are immune from fraud suits in their official capacities unless they consent to be sued. See, e.g., United States v. Sherwood, 312 U.S. at 584, 586 (1941). As Federal Defendants point out, “Plaintiffs have not identified a relevant statute that waives sovereign immunity and permits . . . them to sue Federal Defendants for fraud.” Mem. Supp. Fed. Defs. Mot. Dismiss at 12. Thus, all official-capacity fraud claims against Federal Defendants should be dismissed.
And third, Plaintiffs have not complied with the Federal Rules' requirement that they plead fraud with particularity. See Fed.R.Civ.P. 9(b). Rule 9(b) requires plaintiffs wishing to bring a fraud claim “to, at a minimum, describe the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained by thereby.” Bakery & Confectionary Union & Indus. Int'l Pension Fund v. Just Born II, Inc., 888 F.3d 696, 705 (4th Cir. 2018) (citation and internal quotation marks omitted).
Plaintiffs do not allege any fraudulent misrepresentation made by any Federal Defendant with sufficient particularity to clear the Rule 9(b) threshold. In fact, the fraud section of their complaint does not discuss Federal Defendants at all. Instead, it offers general, conclusory statements about allegedly corrupt judicial proceedings, human trafficking, and forgery. See, e.g., Compl. at 139 (“In the cases of all Plaintiffs, officers of the court made statements that were intentionally false in court with the intention of deceiving the courts and making them unable to make impartial decisions in regard to termination of parental rights of Plaintiffs.”). These allegations are insufficient, and the court should dismiss all fraud claims against Federal Defendants.
Turning to Plaintiffs' RICO claim, the undersigned finds that it, too, lacks plausibility. The civil RICO statute allows an individual whose business or property has been harmed through a violation of 18 U.S.C. § 1962 to bring a claim for monetary damages. 18 U.S.C. § 1964(c). To state a claim under the statute, a plaintiff “must allege at least two acts of racketeering that form a pattern of racketeering activity.” Anderson v. Found. for Advancement, 155 F.3d 500, 505 (4th Cir. 1998) (citing 18 U.S.C. § 1961(5)). Mere isolated acts do not suffice-the plaintiff must allege “a continuing pattern and a relationship among the defendant's activities showing they had the same or similar purposes.” Id. (citation omitted).
As with Plaintiffs' fraud claim, Federal Defendants have not waived their sovereign immunity to be sued under RICO. See, e.g., McNeily v. United States, 6 F.3d 343, 350 (5th Cir. 1993); Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991); Dinkins v. Moon, No. 3:22-CV-73-CCE, 2023 WL 2564006, at *2 (W.D. Va. Mar. 17, 2023) (“[E]very court to address the issue has found that the Federal Government and its employees are immune from suit under the civil RICO statute.”) (citations and internal quotation marks omitted). Plaintiffs provide no citations to the contrary, so immunity shields Federal Defendants from RICO liability.
But even if Plaintiffs could sue Federal Defendants under the statute, they have failed to state a claim. As discussed above, Plaintiffs make no specific allegations suggesting that any Federal Defendant committed a single predicate act that could give rise to RICO liability. Instead, they seem to contend that-because Federal Defendants sit at the peak of our system of government-they must bear ultimate responsibility for the alleged corruption Plaintiffs claim to have faced in their interactions with state and local government officials. See, e.g., Compl. at 27 (contending that “[a]ll claims are vicariously the fault of” several Federal Defendants). This theory of vicarious liability strains logic, and it fails to state a claim under RICO. Thus, the court should dismiss Plaintiffs' RICO claims against Federal Defendants.
4. Count Eight: Bivens
Next, Plaintiffs maintain that Federal Defendants can be held liable under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which provides a federal-actor analogue to § 1983. See Compl. at 147-48. In Bivens, the Supreme Court recognized an implied right of action against federal officials for a violation of the Fourth Amendment. 403 U.S. at 397. Yet since that time, the Supreme Court has only recognized two other viable types of Bivens claims. In Davis v. Passman, the Court recognized a Bivens claim under the Fifth Amendment for sex-based discrimination. 442 U.S. 228 (1979). And in Carlson v. Green, the Court recognized a Bivens claim under the Eighth Amendment for deliberate indifference to serious medical needs. 446 U.S. 14 (1980). But other than those two exceptions, the Supreme Court has not recognized other expansions of the Bivens doctrine. Instead, “for almost 40 years” the Court has “consistently rebuffed requests to add to the claims allowed under Bivens.” Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020).
Plaintiffs' Bivens claims should be dismissed for two reasons. First, to the extent that Plaintiffs seek to sue Federal Defendants in their official capacities under Bivens, their claims are barred by sovereign immunity. See, e.g., Carr v. United States, No. 4:17-CV-167-D, 2018 WL 5074671, at *4 (E.D. N.C. Oct. 17, 2018) (citing FDIC v. Meyer, 510 U.S. 471, 484-86 (1994); Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002), aff'd, 540 U.S. 614 (2004)). Thus, any officialcapacity Bivens claims should be dismissed.
Second, Plaintiffs allege no facts under their Bivens cause of action. Instead, they offer lengthy quotations from caselaw suggesting that Bivens can give rise to damages liability similar to § 1983. See Compl. at 147-48. This may be true, but it does not suggest that a cause of action can be found here. And no other allegations against Federal Defendants elsewhere in the complaint suggest that any of them personally violated Plaintiffs' rights. At best, Plaintiffs hope to hold Federal Defendants vicariously liable for the alleged actions of state and local government employees. See id. at 27. But the Supreme Court has made clear that “vicarious liability is inapplicable to Bivens and § 1983 suits[.]” Iqbal, 556 U.S. at 676. Thus, the court should dismiss Plaintiffs' Bivens claims against Federal Defendants.
5. Count Nine: Mandamus
Finally, Plaintiffs seek a writ of mandamus under 28 U.S.C. § 1361 compelling Federal Defendants “to do their job and help families and stop harming them” by enforcing several criminal laws. Compl. at 148. As Federal Defendants point out, mandamus is not a cause of action-it is a “drastic” remedy that may “be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 402 (1976) (citations omitted). It “is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984) (citation omitted).
Plaintiffs can satisfy neither condition. They have not established that they are entitled to any relief from Federal Defendants-much less that they have exhausted all other avenues to obtain that relief. And it is unclear what duty Plaintiffs believe Federal Defendants owe them. To the extent that Plaintiffs want to sue Federal Defendants to enforce federal law, their claims fail. Most federal statutes do not authorize citizen suits, and those that do require the suits to target “only non-discretionary acts[.]” Sanitary Bd. of Charleston v. Wheeler, 918 F.3d 324, 331 (4th Cir. 2019). Plaintiffs do not allege that any of the federal laws they cite allow for citizen suits, and they do not identify any concrete acts (discretionary or otherwise) that they would like this court to force Federal Defendants to take. And even if the cited laws do allow for citizen suits, Plaintiffs would need to bring suit under those laws-not seek a writ of mandamus-to force the government's hand. The court should therefore deny Plaintiffs' claim under 28 U.S.C. § 1361.
* * *
At the end of the day, Plaintiffs have failed to state a single claim against any Federal Defendant. Sovereign immunity protects them from many of Plaintiffs' causes of action, and Plaintiffs' factual allegations are too scant to pass muster under Iqbal. Thus, the court should grant Federal Defendants' motion to dismiss (D.E. 381).
X. Proof of Service on Remaining Defendants
Although the undersigned has recommended that the court dismiss the claims against all Defendants who have moved to dismiss so far, many Defendants remain. The court suspects that these Defendants-who have not yet responded to the complaint or retained counsel to represent them in this action-were not properly served. This may stem from the court's dismissal of all but six Plaintiffs in January 2023. The remaining Plaintiffs' claims arise out of events in only three states: Kansas, Connecticut, and Florida. Thus, it seems likely that former Plaintiffs who objected to child custody proceedings elsewhere never got around to properly serving the targets of their claims before they were dismissed.
If the court adopts the undersigned's recommendations, the remaining Defendants will be: California Governor Gavin Newsom; former California Governor Jerry Brown; Lieutenant Governor of California Eleni Kounalakis; Lieutenant Governor of Texas Dan Patrick; former New Mexico Governor Michelle Lujan-Grishaw; Arizona Governor Doug Ducey; Pennsylvania Governor Tom Wolf; Georgia Governor Brian Kemp; Alaska Governor Michael Dunleavy; Michigan Governor Gretchen Whitmer; Los Angeles County Governor Jackey Lacey; Attorney General of Los Angeles County Rob Bonta; Jaimie Masters; Maricopa County, Arizona; Sebastian County, Arkansas; Scott County, Arkansas; Riverside County, California; Marion County, Florida; St. Lucie County, Florida; Camden County, Georgia; Laurens County, Georgia; Hutchinson County, Kansas; Sedgwick County, Kansas; St. Mary's County, Maryland; Oakland County, Michigan; Bernalillo County, New Mexico; Monroe County, New York; Washington County, Ohio; Alleghany County, Pennsylvania; McLennan County, Texas; Bell County, Texas; Wichita County, Texas; and Blount County, Tennessee.
The Federal Rules allow a court, on its own, to dismiss an action against a defendant who has not been served “within 90 days after the complaint is filed[.]” Fed.R.Civ.P. 4(m). But prior to doing so, the court must give “notice to the plaintiff” of the potential for dismissal. Id. Since more than 90 days have passed since the complaint's filing and many Defendants appear to remain unserved, the Plaintiffs must show cause within 21 days from the date of this order's filing why the remaining Defendants should not be dismissed for failure to serve them in a timely manner.
XI. Conclusion
For the reasons set forth above, the court denies each non-dispositive motion discussed above (D.E. 599; 600; 602; 608; 609; 611; 612; 613; 614; 615; 626). It also strikes Plaintiffs' unauthorized filings opposing Federal Defendants' motion to dismiss (619; 620; 621; 622; 623; 624). And finally, the court orders Plaintiffs to show cause within 21 days from the date this order issues why the remaining Defendants should not be dismissed for failure to properly serve them in a timely manner.
The undersigned further recommends that the court:
• Deny Reynolds's motion to enter default judgment against Governor DeSantis (D.E. 442); and
• Grant all 13 motions to dismiss (D.E. 216; 237; 261; 265; 268; 270; 272; 292; 294; 317; 335; 368; 381). Federal Defendants should be dismissed because
Plaintiffs fail to state a claim against them, and all other moving Defendants should be dismissed because the court lacks personal jurisdiction over them.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.