EL v. DEPARTMENT OF FAMILY AND CHILDREN SERVICES DCSS ( 2022 )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION TEZ BEN EL, ) ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO. 5:22-CV-258 (MTT) ) DEPARTMENT OF FAMILY AND ) CHILDREN SERVCIES DCSS, ) ) Defendant. ) __________________ ) ORDER Before the Court is the Defendant’s motion to dismiss for improper service, lack of jurisdiction, and failure to state a claim upon which relief can be granted. Doc. 16. The Court is required to advise the Plaintiff of the significance of this motion. See Griffith v. Wainwright, 772 F.2d 822 (11th Cir. 1985). In an effort to afford the Plaintiff, who is proceeding pro se, adequate notice and time to respond to the Defendant’s motion, the following notice is given. If the Plaintiff wishes to respond, he must do so no later than TWENTY-ONE DAYS from the receipt of this Order.1 If the Plaintiff does not timely respond to the motion to dismiss, the Court may dismiss the claims against the Defendant. Under the procedures and policies of this Court, motions to dismiss are normally decided on briefs. Plaintiff may submit his argument to this Court by filing a brief in opposition to Defendant’s motion to dismiss. 1 The Clerk is DIRECTED to mail a copy of the motion to dismiss (Doc. 16) to the pro se Plaintiff at his last known address. Thereafter, all notices or other papers may be served on the Plaintiff directly by mail at his last known address. Unless the Court has granted prior permission, any brief should not exceed 20 pages. M. D. Ga. Civ. R. 7.4. The Court evaluates a motion to dismiss based on improper service, lack of jurisdiction, and failure to state a claim using the following standards: Improper service of process. “Service of process is a jurisdictional requirement: a court lacks jurisdiction over the person of a defendant when that defendant has not been served.” Hemispherx Biopharma, Inc. v. Johannesburg Consol. Investments, 553 F.3d 1351, 1360 (11th Cir. 2008) (quoting Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990)). Federal Rule of Civil Procedure 4(j)(2)(A)-(B) states that “[a] state, a municipal corporation, or any other state-created governmental organization … subject to suit must be served by: (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by the state’s law for serving a summons or like process on such a defendant.” Georgia law provides that claims against state agencies require a “copy of the summons attached to the copy of the complaint” to be delivered “to the chief executive officer or clerk thereof.” O.C.G.A. § 9-11-4(e)(5). Lack of jurisdiction. “A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack.” Stalley v. Orlando Reg’l Heathcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (internal citation omitted). “A facial attack on the complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Id. at 1232-33 (internal quotation marks and citation omitted). A factual attack, however, “challenges the existence of subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits or testimony.” Id. at 1233 (internal citation omitted). Failure to state a claim. The Federal Rules of Civil Procedure require that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To avoid dismissal pursuant to Rule12(b)(6), a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when “the court [can] draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Factual allegations that are merely consistent with a defendant’s liability fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (internal quotation marks and citations omitted). At the motion to dismiss stage, “all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff.” FindWhat Inv. Grp. v. FindWhat.com., 658 F.3d 1282, 1296 (11th Cir. 2011) (internal quotation marks and citations omitted). But “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 485 (11th Cir. 2015) (cleaned up). The complaint must “give the defendant fair notice of what the … claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks and citation omitted). Where there are dispositive issues of law, a court may dismiss a claim regardless of the alleged facts. Patel v. Specialized Loan Servicing, LLC, 904 F.3d 1314, 1321 (11th Cir. 2018). SO ORDERED, this 12th day of December, 2022. S/ Marc T. Treadwell MARC T. TREADWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT