Hong Tang v. University of Baltimore

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1146
HONG TANG,
Plaintiff - Appellant,
v.
UNIVERSITY OF BALTIMORE; KURT L. SCHMOKE; JOSEPH S. WOOD;
DARLENE BRANNIGAN SMITH; KATHLEEN ANDERSON; CHRISTY LEE
KOONTZ; PATRIA DE LANCER JULNES,
Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
James K. Bredar, Chief District Judge. (1:18-cv-02200-JKB)
Submitted: June 20, 2019 Decided: August 7, 2019
Before WYNN and RICHARDSON, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed as modified by unpublished per curiam opinion.
Hong Tang, Appellant Pro Se. Lillian Lane Reynolds, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hong Tang appeals from the district court’s order granting Defendants’ motion to
dismiss. The district court granted the motion on the reasoning in the Defendants’
motion, which included jurisdictional challenges (Eleventh Amendment immunity and
defects in service of process), as well as assertions of qualified immunity and failure to
state a claim under Fed. R. Civ. P. 12(b)(6). The district court did not state on which
grounds its decision rested. Nor did the court state whether the dismissal was with or
without prejudice.
Dismissal for failure to properly serve Defendants is a dismissal without prejudice.
See Fed. R. Civ. P. 4(m). Similarly, a dismissal based upon Eleventh Amendment
immunity would be without prejudice. See Fed. R. Civ. P. 41(b); Allen v. Cooper, 895
F.3d 337, 358 (4th Cir. 2018). However, dismissal for failure to state a claim or for
qualified immunity would be with prejudice. See McLean v. United States, 566 F.3d 391,
396 (4th Cir. 2009); Moore ex rel. Moore v. Briggs, 381 F.3d 771, 775 (8th Cir. 2004)
(upon concluding that defendants were entitled to qualified immunity, remanding case
with directions to dismiss claims against them with prejudice).
Moreover, when a jurisdictional attack is filed in conjunction with other Fed. R.
Civ. P. 12 motions, the court should consider the jurisdictional attack before addressing
any attack on the merits. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
This requirement prevents a court without jurisdiction from prematurely dismissing a
case with prejudice. Id. The court's dismissal of a plaintiff's case because the plaintiff
lacks jurisdiction is not a determination of the merits and does not prevent the plaintiff
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from pursuing a claim in a court that does have proper jurisdiction or otherwise curing
the jurisdictional defect. Id.; see also Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 109 (1998) (“However desirable prompt resolution of the merits . . . question may be,
it is not as important as observing the constitutional limits set upon courts.”).
Addressing the jurisdictional attacks (improper service and Eleventh Amendment
immunity) first, we find that the claims against the University of Baltimore and the
claims for retrospective relief against the individual Defendants in their official capacities
are barred by the Eleventh Amendment for the reasons adopted by the district court.
Likewise, we conclude that Tang has failed to meet his burden of showing proper service.
Systems Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990)
(plaintiff bears burden of proving validity of service). Accordingly, because the district
court lacked subject matter and/or personal jurisdiction over Tang’s claims, the court
lacked the jurisdiction to consider the Defendants’ arguments as to the merits of the
complaint.
Accordingly, we modify the district court’s order to show that the dismissal is
based on jurisdictional grounds and is without prejudice and affirm as modified. We
dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED AS MODIFIED
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