Polidi v. Boente

Full title: RICHARD POLIDI, Plaintiff, v. DANA J. BOENTE, et al., Defendants.

Court: United States District Court, E.D. North Carolina, Western Division

Date published: Jun 28, 2024

5:22-CV-519-M (E.D.N.C. Jun. 28, 2024)

Opinion

5:22-CV-519-M

06-28-2024

RICHARD POLIDI, Plaintiff, v. DANA J. BOENTE, et al., Defendants.

Robert B. Jones, Jr. United States Magistrate Judge

ORDER AND MEMORANDUM AND RECOMMENDATION

Robert B. Jones, Jr. United States Magistrate Judge

This matter is before the court on Defendants Dana Boente, Ayana Free, Kimere Kimball, Nathan Kelley, Thomas Krause, Melinda Deatley, the United States of America, the United States Patent and Trademark Office (“USPTO”), and Kathi Vidal's (collectively, the “Federal Defendants”) motion to dismiss, [DE-32]; Defendants A. Todd Brown, Sr. and Margaret Cloutier's (collectively, the “State Defendants”) motion to dismiss, [DE-73]; Plaintiff Richard Polidi's (“Polidi”) motion for an extension of time to file and serve a response to the State Defendants' motion to dismiss, [DE-91]; and the State Defendants' motion for an extension of time to file a response to Polidi's motion to set aside the court's February 16, 2024 order and for a new hearing, [DE-80]. Polidi has responded to the Federal Defendants' motion to dismiss, [DE-48], and they have filed a reply, [DE-51]; Polidi has indicated that the Federal and State Defendants take no position with respect to his request for additional time to respond to the State Defendants' motion to dismiss, Pl.'s Mot. [DE-91] at 3; and Polidi has opposed the State Defendants' motion to dismiss, [DE-92], However, Polidi has not responded to the State Defendants' motion for an extension of time despite indicating that he would do so, [DE-85], and the motion is now ripe for review. The motions to dismiss have been referred to the undersigned for a memorandum and recommendation to the district court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. R. 72.3(c)(1), E.D. N.C. For the following reasons, it is recommended that the motions to dismiss be allowed. Polidi's motion for an extension of time is denied as moot, and the State Defendants' motion for an extension of time is allowed.

I. Background

Plaintiff Richard Polidi brought this action against the Federal and State Defendants related to “an irregular legal ethics prosecution centered qn a premise which contradicts the law of North Carolina,” as well as a “continuing and apparently coordinated withholding of information and evidence.” Am. Compl. [DE-30] at 2. Polidi asserts violations of the Federal Tort Claims Act (“FTCA”), the Administrative Procedure Act (“APA”), and 42 U.S.C. § 1983, as well as various North Carolina state laws, and seeks both monetary damages and declaratory relief under the Declaratory Judgment Act (“DJA”). Id. ¶¶ 6-141. The facts alleged in the amended complaint are difficult to decipher but are summarized below.

Polidi is a former North Carolina licensed attorney who was disbarred by the North Carolina State Bar (“NCSB”) for misuse of client funds, then reciprocally disbarred from practicing before the USPTO. Id. ¶¶ 11-19. During the initial NCSB proceeding, Polidi admitted to committing misconduct and voluntarily surrendered his law license, id. ¶¶ 16-17, but he now disputes the misconduct and alleges that the NCSB, and later, the USPTO, “dishonestly prosecuted” him, id. ¶¶ 11-15.

Polidi contends that “third parties who remain concealed to the plaintiff . . . encouraged and acted in concert with the NCSB with the goal of inflicting harm and interfering with the practice of law by the plaintiff.” Id. ¶ 15. Polidi alleges that his then-counsel has repeatedly and improperly refused to produce communications he had with NCSB while the disciplinary proceeding was ongoing. Id. ¶¶ 79-87. Polidi also alleges that he submitted a grievance to the NCSB regarding misconduct purportedly committed by Deputy Attorney Carmen Bannon (“Bannon”) during the NCSB ethics prosecution against him. Id. ¶ 117. According to Polidi, the NCSB screened the grievance and opened a case against Bannon but denied Polidi's request to open a case against additional parties that he believed were involved in the alleged misconduct. Id. The NCSB also allegedly informed Polidi that he would receive correspondence regarding the investigation into Bannon and the grievance process, but this information was never sent to Polidi and the grievance was subsequently dismissed before Polidi had an opportunity to explain the basis for his assertions. Id. ¶ 118. Polidi avers that the NCSB prematurely closed the grievance case because of a conflict of interest, and a further investigation into Bannon would have required the NCSB to “disclose (and effectively admit) the improprieties of which [Polidi] has always complained.” Id. ¶¶ 119-22. Polidi alleges that had the NCSB continued the investigation, it would have been unable to “continue to secrete the single document which [Polidi] has sought, including any misconduct by Ms. Bannon.” Id. ¶ 123.

Polidi further asserts that during the USPTO reciprocal disciplinary proceeding, the agency covered up the NCSB's alleged misconduct by denying Polidi's discovery requests and intentionally withholding “all evidence and proof known to demonstrate the underlying dishonesty,” i.e., exculpatory evidence. Id. ¶¶ 6-29. According to Polidi,

the NCSB was essentially pursuing two parallel ethics prosecutions simultaneously against [him]. The first one concerns the client [whose funds Polidi allegedly misused]. The second prosecution, however, was concealed from [Polidi] in its entirety. The second prosecution not only lacked due process but had no process at all.

Id. ¶ 13. Allegedly, this large-scale coverup not only deprived Polidi of his law license but prevented him from effectively seeking judicial redress, because USPTO representatives “mad[e] misleading if not false representations in those proceedings.” Id. ¶¶ 9, 21. Additionally, as part of the purported coverup, the USPTO allegedly adjudicated and entered orders during the reciprocal disciplinary proceeding that lacked the proper jurisdictional authority. Id. ¶¶ 22-23.

To date, Polidi has filed more than ten lawsuits regarding his disbarment. See Defs.' Mem. Ex. 1 [DE-12-1] at 1-3. In the instant case, the individual Federal Defendants are attorneys who represented the USPTO in the reciprocal disciplinary proceeding against Polidi and subsequent litigation, and the State Defendants are the then-Deputy Counsel and Officer of the NCSB, both of whom were involved in the NCSB's grievance investigation into Carmen Bannon's alleged misconduct. Am. Compl. [DE-30] ¶ 2. Polidi filed this action on December 16, 2022, [DE-1], and the Federal Defendants first moved to dismiss the claims against them on August 3, 2023, [DE-11]. Polidi then amended his complaint on November 2, 2023 to include the State Defendants as parties and assert five new causes of action against them in their official and individual capacities. [DE-30]. The Federal Defendants filed their motion to dismiss the amended complaint on November 16, 2023, [DE-32], relying in part on the memorandum and exhibits filed with their previous motion to dismiss, [DE-12], and the State Defendants filed their motion to dismiss on March 22, 2024, [DE-73].

Polidi has responded to the Federal Defendants' motion to dismiss, [DE-48], and the Federal Defendants have filed a reply, [DE-51], Polidi also filed a motion for an extension of time to respond to the State Defendants' motion to dismiss on April 30, 2024, [DE-91], then filed his response on May 6, 2024, [DE-92]. In the interim, Polidi filed a collection of “exhibits relating to matters pending before the court,” [DE-52]; the undersigned entered an order staying discovery until the pending motions to dismiss are resolved, [DE-59]; and the court denied Polidi's request to stay the case indefinitely, [DE-64]. Polidi has since filed a motion to set aside the February 16, 2024 order and request a new hearing on the issue of staying case proceedings, [DE-69], and the State Defendants seek additional time to file a response to the motion, [DE-80]. The motions to dismiss were referred to the undersigned for a Memorandum and Recommendation on February 12,2024 and June 11,2024, while the motions for an extension of time were both referred on May 2,2024. .

II. Discussion

i. The Motions to Dismiss

The Federal Defendants move to dismiss all claims against them pursuant to Fed.R.Civ.P. 12(b)(1) and (6), or in the alternative, to dismiss all the Federal Defendants except for the United States. Defs.' Mem. [DE-12] at 10-26. As part of their motion to dismiss, the Federal Defendants also request that the court take judicial notice of three of Polidi's prior lawsuits: Polidi v. Lee, No. 15-1030, 2015 WL 136748601 (E.D. Va. 2015), aff'd sub nom. Polidi v. Matal, 709 Fed.Appx. 1016 (Fed. Cir. 2017) Polidi v. Lee If, Polidi v. Lee, No. 17-1133 (E.D. Va. 2018) f Polidi v. Leeliry, and N.C. State Bar v. Polidi, Wake County Superior Court, 14-cv-09738 (July 22, 2014) (the “NCSB disciplinary proceeding”). Id. at 12-13. The State Defendants move to dismiss all claims against them pursuant to Fed.R.Civ.P. 12(b)(1), (2), (4), and (6). Defs.' Mem. [DE-77] at 11-25.

A court must dismiss all or part of an action over which it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Whether subject matter jurisdiction exists is a threshold question that must be addressed before considering the merits of the case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999); see also Fed.R.Civ.P. 12(h)(3) (“if the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). The plaintiff, as the party opposing a Rule 12(b)(1) motion to dismiss, has the burden of proving that subject matter jurisdiction does, in fact, exist. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). “In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Id. (citations omitted).

Pursuant to Rule 12(b)(2), a court must dismiss a party over which it lacks personal jurisdiction, and the party asserting personal jurisdiction has the burden of proving jurisdiction by a preponderance of the evidence. Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d . 290, 294 (4th Cir. 2005). Where, as here, a court addresses the question of jurisdiction based only on the allegations in the complaint and the motions and supporting memoranda, without an evidentiary hearing, the burden is on the plaintiff to make a prima facie showing of jurisdiction. Id. In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court “must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor.” Id.

A motion under Rule 12(b)(4) challenges the sufficiency of process. Fed.R.Civ.P. 12(b)(4). “When the process gives the defendant actual notice of the pendency of the action, the rules ... are entitled to a liberal construction” and “every technical violation of the rule or failure of strict compliance may not invalidate the service of process.” Henderson v. Rosen, No. 5:13-CV-635-FL, 2013 WL 6097534, at *3 (E.D. N.C. Nov. 20, 2013) (quoting Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984)), aff'd sub nom. Henderson v. Town of Hope Mills, 594 Fed.Appx. 195 (4th Cir. 2015). “Nevertheless, ‘the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored.'” Id. (quoting Armco, 733 F.2d at 1089). “The plaintiff bears the burden of establishing that process has been properly served.” Id. (citing McDaniel v. Greyhound Lines, Inc., No. 3:08-CV-130-FDW, 2008 WL 2704774, at *4 (W.D. N.C. July 7, 2008); Plant Genetic Sys., N. V. v. Ciba Seeds, 933 F.Supp. 519, 526 (M.D. N.C. 1996)). “Inasmuch as the sufficiency of process and service of process concern the court's jurisdiction, consideration of materials outside the pleadings, such as affidavits, is appropriate.” Davis v. Matroo, No. 5:13-CV-00233-BO, 2013 WL 5309662, at *2 (E.D. N.C. Sept. 19,2013) (citing Dimet Proprietaiy, Ltd. v. Indus. Metal Protectives, 109 F.Supp. 472,475 (D. Del. 1952)).

A Rule 12(b)(6) motion aims to test the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences “in the light most favorable to the [nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014). A court need not accept as true a complaint's legal conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302; see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's allegations must “nudge [ ] [his] claims,” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility,” Iqbal, 556 U.S. at 678-79.

When deciding a motion to dismiss, the court may also consider “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Straw v. North Carolina, No. 7:18-cv-00074-M, 2020 WL 1042141, at *2 (E.D. N.C. Mar. 3,2020) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)); see King v. Utt, No. 221051, 2023 WL 315255, at *3 (4th Cir. 2023) (“courts are permitted to consider facts and documents subject to judicial notice without converting the motion to dismiss into one for summary judgment”) (quoting Zak v. Chelsea Therapeutics Int'l, Ltd., 780 F.3d 597, 607 (4th Cir. 2015)). Pursuant to Fed.R.Evid. 201(b), a court “may judicially notice a fact that is not subject to reasonable dispute because it is: (1) generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

Finally, in the present case, Polidi is proceeding pro se. Normally, the court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the liberal construction rule does not apply when the pro se party is a trained lawyer, like Polidi. Polidi, 2015 WL 13674860, at *3 (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 82 n.4 (2d Cir. 2001), abrogated in part on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)).

A. Polidi's Exhibits Relating to Matters Pending Before the Court

Polidi has filed a collection of documents labelled “exhibits relating to matters pending before the court.” [DE-52]. These documents include 2019 and 2020 email correspondence between Polidi and members of the Office of Counsel of the NCSB, including Carmen Bannon; Polidi's summary of his previously filed NCSB and USPTO litigation; and documents Polidi has filed in his prior NCSB and USPTO cases. Id.

The court may not consider these documents in determining whether Polidi has stated a claim for relief because they do not give rise to the legal rights Polidi asserts and are not integral to the complaint. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (citing Sec 'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). To be integral to the complaint, a document must, “by its very existence, and not the mere information it contains, give [ ] rise to the legal rights asserted.” Tagirova v. Elizabeth City State Univ., No. 2:16-CV-70-D, 2017 WL 4019516, at *4 (E.D. N.C. Sept. 11, 2017) (collecting cases); Jacobs v. Zurich Am. Ins. Co., No. 5:21-2617-MGL, 2022 WL 16952013, at *2 (D.S.C. Nov. 15, 2022) (concluding an integral document “must do more than contain information that is important to the plaintiffs claims. Instead, its very existence must give rise to the legal rights asserted.”) (citing . United States ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021)).

A complaint may not be amended by asserting information in briefs or exhibits filed in opposition to a motion to dismiss. See Mack v. E. Carolina Univ., No. 4:21-CV-00108-M, 2022 WL 945595, at *6 (E.D. N.C. Mar. 29, 2022) (citing Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)); see also Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (same); Barclay White Skanska, Inc. v. Battelle Mem 'IInst., 262 Fed.Appx. 556, 563 (4th Cir. 2008) (citations omitted) (“A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.”). Accordingly, the documents filed at [DE-52] are not properly considered in evaluating whether Polidi's amended complaint states a plausible claim for relief.

B. The Federal Defendants' Motion to Dismiss

The Federal Defendants first argue that dismissal pursuant to Fed.R.Civ.P. 12(b)(1) is appropriate because the doctrine of sovereign immunity bars Polidi's FTCA claim; the United States District Court for the Eastern District of Virginia's (the “Eastern District of Virginia”) exclusive jurisdiction over USPTO disciplinary decisions bars litigation over Polidi's APA claim in this court, and transfer to the Eastern District of Virginia would be futile; and the facts pleaded in the amended complaint are not sufficient to confer jurisdiction under the DJA. Defs.' Mem. [DE-12] at 15-22. Second, the Federal Defendants contend that dismissal pursuant to Fed.R.Civ.P. 12(b)(6) is appropriate because the doctrine of res judicata bars Polidi's APA and DJA claims, and the doctrine of judicial estoppel bars Polidi's FTCA claim. Id. at 22-26. Lastly, the Federal Defendants assert that, in the alternative, the court should dismiss all the Federal Defendants except for the United States because the individual Federal Defendants are sued in their official capacities. Id. at 26-27.

Polidi argues that the amended complaint asserts an actionable claim under the FTCA; that neither res judicata nor collateral estoppel applies; that this court has jurisdiction over APA claims, and venue is therefore proper here; that this court has subject matter jurisdiction over the DJA claim in view of the court's alleged jurisdiction over the FTCA and APA claims;¹ and that “the' action asserts a prima facie case[ ].” Pl.'s Resp. [DE-48] at 2-18 (internal capitalization omitted). Given that several of the Federal Defendants' arguments directly concern Polidi's litigation history, the undersigned first addresses whether taking judicial notice of certain prior case records is warranted, then proceeds to analyze the arguments for dismissal.

1 In the argument section of his brief, Polidi labels two of the section headings as “The United States District Court for the Eastern District of North Carolina has Jurisdiction Over the Administrative Procedures Act, and Venue is Proper Here.” Pl.'s Resp. [DE-48] at 17. However, the body paragraph corresponding with the second as-labelled section heading states that “The Court is submitted to possess jurisdiction over the declaratory judgment claim in view of the [ ] Court's jurisdiction over the remaining claims,” id., and the undersigned has interpreted this statement as an argument pertaining to Polidi's DJA, not APA, claim.

1. Judicial notice is appropriate.

As this court has previously held, the judicial notice inquiry “turns on the fact's indisputability.” Straw, 2020 WL 1042141, at *7. Because of this, courts may properly take judicial notice of proceedings in other courts and the contents of court records. Id. (citing Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989)). However, “judicial notice must not be used as an expedient for courts to consider matters beyond the pleadings and thereby upset the procedural rights of litigants to present evidence on disputed matters.” Id. (quoting Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015)). For this reason, the Fourth Circuit has declined to judicially notice documents when “[t]he parties clearly and reasonably disagree about the meaning to be ascribed to” them. Id. (quoting Ohio Valley Env't. Coal. v. Aracoma Coal Co., 556 F.3d 177, 216 (4th Cir. 2009)).

Here, the Federal Defendants request that the court take judicial notice of court documents issued in three of Polidi's prior lawsuits: the final order in Polidi v. Leel, 2015 WL 13674860; the order found at [DE-42] in Polidi v. Lee III, Defs.' Mem. Ex. 7 [DE-12-8]; and the consent order of disbarment and attached affidavit of surrender issued in the NCSB disciplinary proceeding, Defs.' Mem. Ex. 10 [DE-12-11]. Defs.' Mem. [DE-12] at 12-13. In support of their assertion that . judicial notice is warranted, the Federal Defendants argue that Polidi “appears to dispute the holdings, not the facts in these prior court orders.” Defs.' Mem. [DE-12] at 14. The Federal Defendants also note that the amended complaint mentions the NCSB disciplinary proceeding and the resulting order of disbarment, as well as the Eastern District of Virginia's denial of Polidi's prior APA claim, which was at issue in Polidi v. Lee I and subsequently appealed. Id.

In his response, Polidi does not contest the facts of the above-listed court documents or even mention the Federal Defendants' request for judicial notice.²,³ Pl.'s Resp. [DE-48] at 5-18. Absent argument to the contrary and considering that “the most frequent use of judicial notice is in noticing the content of court records,” Colonial Penn. Ins. Co., 887 F.2d at 1239, the court should find that the facts established in the Polidi v. Lee I order, the Polidi v. Lee III order, and the NCSB disciplinary proceeding's consent order of disbarment and affidavit of surrender are undisputed and properly subject to judicial notice.

2 Notably, while Polidi's response “incorporates by reference the Response [Polidi] filed previously in this matter on December 3, 2021, as though asserted fully herein,” Pl.'s Resp. [DE-48] at 5, the instant case was filed on December 16, 2022, [DE-1], so the only response addressed in this part of the Recommendation is that found at [DE-48].

3 Arguably, the failure to assert any argument in response could be construed as waiver. See e.g., Grayson O Co. v. Agadir Int 'ILLC, 856 F.3d 307,316 (4th Cir. 2017) (“A party waives an argument by failing to present it in its opening brief or by failing to develop its argument-even if its brief takes a passing shot at the issue.”) (cleaned up); Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016) (“Perfunctory and undeveloped arguments are waived, as are arguments unsupported by legal authority.”); Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396 n.* (4th Cir. 2014) (noting that failure to present legal arguments and “record citations or pertinent legal authority supporting ... a claim” waives the claim); Best v. Butterball, LLC, No. 4:22-CV-147-FL, 2024 WL 386921, at *1 (E.D. N.C. Jan. 31, 2024); accord Hughes v. B/E Aerospace, Inc., No. 12-CV-717, 2014 WL 906220, at *1 n.l (M.D. N.C. Mar. 7, 2014) (“A party should not expect a court to do the work that it elected not to do.”).

2. All causes of action stated against the Federal Defendants are subject to dismissal under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.

The Federal Defendants argue that dismissal pursuant to Fed.R.Civ.P. 12(b)(1) is appropriate because the doctrine of sovereign immunity bars Polidi's FTCA claim, the Eastern District of Virginia has exclusive jurisdiction over USPTO disciplinary decisions, and the facts pleaded in the amended complaint are insufficient to confer subject matter jurisdiction under the DJA alone. Defs.' Mem. [DE-12] at 15-22. Polidi contends that the amended complaint asserts an actionable claim under the FTCA, that this court has jurisdiction over the APA claim, and that this court has subject matter jurisdiction over the DJA claim because it has jurisdiction over the FTCA and APA claims. Pl.'s Resp. [DE-48] at 2-17.

a. The intentional torts exception precludes FTCA waiver of sovereign immunity.

As sovereign, the United States is “immune from all suits against it absent an express waiver of its immunity.” Cruthirds v. United States, No. 5:18-CV-450-FL, 2019 WL 1573691, at *3 (E.D. N.C. Apr. 11, 2019) (quoting Welch v. United States, 409 F.3d 646, 650-51 (4th Cir. 2005)). This immunity extends to federal agencies and government officials sued in their official capacity. Trueman v. United States, No. 7T2-CV-73-F, 2015 WL 1456134, at *9 (E.D. N.C. Mar. 30, 2015) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994)). Sovereign immunity is jurisdictional in nature, and “the ‘terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.'” Id. (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). Any waiver of sovereign immunity must be strictly construed in favor of the sovereign. Cruthirds, 2019 WL 1573691, at *3.

When invoking a waiver, the plaintiff bears the burden of showing “that an unequivocal waiver of sovereign immunity exists.” Longworth v. United States, No. 5:21-CT-3242-FL, 2022 WL 4587520, at *3 (E.D. N.C. Sep. 29, 2022) (quoting Welch, 409 F.3d at 651). The FTCA provides one such waiver and allows complainants to hold the United States liable for certain tort claims “in the same manner and to the same extent as a private individual,” 28 U.S.C. § 2674, including “for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the [United States] while acting within the scope of his [or her] office or employment,” Id. § 1346(b)(1). Longworth, 2022 WL 4587520, at *3 (citing Clendening v. United States, 19 F.4th 421, 426 (4th Cir. 2021)); Evans v. United States, -F.4th-, 2024 WL 3197352, at *7 (4th Cir. June 24,2024). Where immunity is waived, the Government may be held liable in tort “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. However, the FTCA's waiver of sovereign immunity is narrow in scope, see Gould v. U.S. Dep't of Health & Human Servs., 905 F.2d 738, 741 (4th Cir. 1990), and qualified by several express exceptions, see 28 U.S.C. § 2680. As relevant here, § 2680(h) specifically states that the FTCA will not apply to “[a]ny claim arising out of... misrepresentation [or] deceit....”

In the instant case, the Federal Defendants contend that Polidi's first, third, fifth, and sixth causes of action “sound [ ] in malicious prosecution, abuse of process, and deceit,” and are therefore excluded from the FTCA's waiver of sovereign immunity and this court's subject matter jurisdiction. Defs.' Mem. [DE-12] at 16. Polidi responds that the intentional torts exception to the FTCA's waiver of sovereign immunity does not apply because this case “concerns the withholding of evidence which would have been probative of an affirmative defense” and “a breach of duty owed by the Defendants to one of the USPTO's own members and practitioners,” not misrepresentation, deceit, malicious prosecution, or abuse of process. Pl.'s Resp. [DE-48] at 5-15.

In United States v. Neustadt, the Supreme Court held that all claims arising out of a plaintiffs reliance on a government employee's negligent or intentional misrepresentation are barred by § 2680(h). 366 U.S. 696, 705-07 (1961). Since then, multiple lower courts within the Fourth Circuit have applied Neustadt and dismissed similar claims for lack of subject matter jurisdiction at the pleadings stage. See, e.g., Suter v. United States, No. 3:04cv358, 2005 WL 6124845, at *2 (W.D. N.C. Mar. 1, 2005), aff'd, 441 F.3d 306 (4th Cir. 2006). The Federal Defendants assert that the most relevant of these cases is Russ v. United States because it purportedly stands for the proposition that Polidi “cannot evade [the FTCA's intentional torts exception] by pleading the claim as one for negligence.” Defs.' Mem. [DE-12] at 18.

In Russ, the trial court analyzed an FTCA negligence claim arising from the plaintiffs' purchase of a wheelchair ramp for their home. 129 F.Supp.2d 905, 906-907 (M.D. N.C. Jan. 17, 2001). The contractor who built the ramp was recommended to the plaintiffs by the chief of the Veteran's Association (“VA”), but after the ramp malfunctioned and injured one of the plaintiffs, they discovered that the contractor was not licensed in North Carolina and had not obtained the necessary permits for the construction he undertook at the plaintiffs' residence. Id. at 907. The Russ plaintiffs alleged that, had they known this information, they would not have selected that particular contractor to perform the construction. Id.

Ultimately, the Russ court found that even though the plaintiffs characterized their claims as based on simple negligence, “the gravamen of the action [was] misrepresentation.” Id. at 910. The VA's failure to use due care in communicating information to the plaintiffs was directly related to their injuries, and as a result, the VA's misrepresentations were integral to the plaintiffs' claims, not merely incidental to other negligent conduct. Id. Consequently, the court held that the VA's conduct fell under the intentional torts exception to the FTCA, the United States had not waived its sovereign immunity, and the court lacked subject matter jurisdiction. Id.

Polidi does not specifically address Russ in his response but given that he emphasizes that this case is based on a “breach of duty” and pleads facts in the alternative to allege that the breach was either intentional or negligent, the undersigned finds that the Supreme Court case Block v. Neal provides an instructive comparison with Neustadt and its lower-court progeny. In Neustadt, the Court found that the FTCA intentional torts exception applied where home purchasers were furnished an inaccurate report of a Federal Housing Administration inspection and appraisal and thereby induced to buy a house in excess of its fair market value. 366 U.S. at 702. The Court stressed that the exception applied because the government had not breached a duty to the plaintiffs that existed separate and apart from its obligation to “use due care in obtaining and communicating information upon which [a] party may reasonably be expected to rely in the conduct of his economic affairs.” Id. at 706. By contrast, in Block, the Court found that the exception did not apply to a homeowner's claim that the Farmers Home Administration (“FmHA”) failed to properly inspect and supervise construction of her home, even though the FmHA repeatedly inspected the site and reported to the plaintiff that the construction was proper. 460 U.S. 289, 298-99 (1983). The Court emphasized that the plaintiffs claim did not arise from the misrepresentation, but rather from the FmHA's failure to properly supervise construction of her home-in other words, from a duty that existed separate and apart from the FmHA's obligation to use due care in obtaining and communicating information that the plaintiff was likely to rely on. Id. at 299.

Here, Polidi alleges multiple FTCA claims: conversion, breach of fiduciary duty, and intentional infliction of emotional distress in the first cause of action; breach of fiduciary duty and negligence in the third cause of action; gross negligence and wanton negligence in the fifth cause of action; and conversion, breach of fiduciary duty, and intentional infliction of emotional distress in the sixth cause of action. Am. Compl. [DE-30] at 10-22. Polidi contends that these claims stem from the Federal Defendants' alleged failure to disclose exculpatory information during the reciprocal disciplinary proceeding against him, violating a duty of disclosure that he believes exists in both ethics and criminal prosecutions, as well as duties of fairness, honesty, good faith, and candor. Pl.'s Resp. [DE-48] at 3-15. He further argues that, because of the Federal Defendants' alleged breach, he has been continually deprived of the right to practice law in North Carolina without due process. Am. Compl. [DE-30] at 5-10.

Throughout Polidi's extensive litigation history, other courts have held that Polidi did not have a right to discovery from the Federal Defendants-including a right to discovery of the allegedly exculpatory information that he seeks in the instant case. See Polidi, 2015 WL 136748601, at *3 (“It is worth noting at the outset that neither the Constitution nor the APA requires pretrial discovery; rather, Congress has vested the PTO with broad discretionary power to develop rules relating to attorney conduct and discipline.”). Insofar as Polidi disputes this conclusion, the court should find that he is collaterally estopped from relitigating the issue. “Applying collateral estoppel forecloses the relitigation of issues of fact or law that are identical to issues which have been actually determined and necessarily decided in prior litigation in which the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate.” Oudeh v. Goshen Med. Ctr., Inc., No. 5:22-CV-193-D, 2022 WL 18028281, at *3 (E.D. N.C. Dec. 29, 2022) (quoting In re Microsoft Corp. Antitrust Litigation, 355 F.3d 322, 326 (4th Cir. 2004) (cleaned up)); see Sedlack v. Braswell Servs. Grp., Inc., 134 F.3d 219, 224 (4th Cir. 1998). Collateral estoppel applies if the proponent demonstrates that:

(1) the issue or fact is identical to the one previously litigated; (2) the issue or fact was actually resolved in the prior proceeding; (3) the issue or fact was critical and necessary to the judgment in the prior proceeding; (4) the judgment in the, prior proceeding is final and valid; and (5) the party to be foreclosed by the prior resolution of the issue or fact had a full and fair opportunity to litigate the issue or fact in the prior proceeding.

Oudeh, 2022 WL 18028281, at *3 (citing In re Microsoft Corp., 355 F.3d at 326); see E. Assoc. Coal Co. v. Dir., Off. of Worker's Comp. Programs, 578 Fed.Appx. 165, 173 (4th Cir. 2014) (per curiam) (unpublished); Collins v. Pond Creek Mining Co., 468 F.3d 213, 217 (4th Cir. 2006); Tuttle v. Arlington Cnty. Sch. Bd, 195 F.3d 698, 703 n.6 (4th Cir. 1999). While collateral estoppel is ordinarily an affirmative defense, a court may sua sponte raise the issue in special circumstances where the previous action was litigated in the same district court, or where all relevant data and legal records are before the court and judicial economy will be served by invoking the doctrine sua sponte. Dingle v. Khan, 5:19-CV-129-D, 2020 WL 2120010, at *7 (E.D. N.C. Feb. 20, 2020), adopted by, 2020 WL 1272266 (E.D. N.C. Mar. 16, 2020) (citing and quoting Smith v. Spears, No. CV 2:17-3384-PMD-BM, 2018 WL 4523201, at *3 (D.S.C. Feb. 8, 2018), adopted by, 2018 WL 2772668 (E.D. N.C. June 11, 2018)).

Here, the court should sua sponte find that Polidi is collaterally estopped from asserting that he was owed discovery of allegedly exculpatory information from the Federal Defendants in the reciprocal USPTO disciplinary proceeding because all five issue preclusion criteria are met. First, the issue of the USPTO's duty to disclose potentially exculpatory information is identical to that previously litigated va Polidi v. Lee I. 2015 WL 136748601, at *2-3 (“[Polidi] first argues that the PTO had an obligation to disclose information assisting in petitioner's defense under the Supreme Court's decision in Brady .... [Polidi] next argues that the PTO violated petitioner's due process rights under the Fourth, Fifth, and Fourteenth Amendments through the PTO's failure to make the requested disclosures of exculpatory evidence.”); see Oudeh, 2022 WL 18028281, at *3. Second, the issue was resolved in the prior proceeding, and was both critical and necessary to the judgment. 2015 WL 136748601, at *4 (finding “there is no basis to conclude that the PTO's decision to exclude [Polidi] from practice before the agency was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law'” because the USPTO is not obligated under Brady v. Maryland, the tenants of due process, or the APA to disclose potentially exculpatory evidence in a disciplinary proceeding); see Oudeh, 2022 WL 18028281, at *3. Lastly, the judgment in the prior proceeding is final and valid, and the party to be foreclosed by the prior resolution of the issue-Polidi-had a full and fair opportunity to litigate the issue in the prior proceeding, having briefed the issue fully for the Eastern District of Virginia and the Federal Circuit. See Oudeh, 2022 WL 18028281, at *3. Accordingly, barring Polidi from attempting to relitigate this issue is appropriate. See id.

If the court finds that Polidi is collaterally estopped from asserting that he was owed discovery of allegedly exculpatory information from the Federal Defendants in the reciprocal USPTO disciplinary proceeding, Polidi's FTCA claims against the Federal Defendants can be summarized as follows: allegedly, the USPTO and its officers have knowingly, recklessly, or negligently continued to withhold exculpatory information from him, thereby allowing (and even enabling) the NCSB to conceal misconduct that purportedly occurred during its initial investigation. See Am. Compl. [DE-30] at 3-22. Viewed from this perspective, even in the light most favorable to Polidi, it is clear that at the heart of Polidi's FTCA claims lies fraud, misrepresentation, and deceit- not the breach of a duty that existed separate and apart from the USPTO's obligation to use due care in obtaining and communicating information that Polidi was likely to rely on. See Neustadt, 366 U.S. at 702; Block, 460 U.S. at 298-99; Russ, F.Supp.2d at 910. Thus, the court should find that the intentional torts exception bars the Federal Defendants' waiver of sovereign immunity and dismiss with prejudice the first, third, fifth, and sixth causes of action for lack of subject matter jurisdiction. See Longworth, 2022 WL 4587520, at *3.

If the court does not find that Polidi is collaterally estopped from arguing that he was owed discovery of allegedly exculpatory information from the Federal Defendants in the reciprocal USPTO disciplinary proceeding, dismissing the FTCA claims for lack of subject matter jurisdiction is still appropriate. This is because, as the Eastern District of Virginia explained in Polidi v. Lee I, neither the Constitution nor the APA requires pretrial discovery. 2015 WL 136748601, at *3 (citing 35 U.S.C. § 2(b)(2); Stevens v. Tamai, 366 F.3d 1325, 1333 (Fed. Cir. 2004); Mister Discount Stockbrokers, Inc. v. SEC, 768 F.2d 875, 878 (4th Cir. 1985) (“Neither the Federal Rules of Civil Procedure nor the Federal Rules of Criminal Procedure apply to administrative hearings, and the Administrative Procedure Act fails to provide for discovery.”); Silverman v. Commodity Futures Trading Comm 'n, 549 F.2d 28, 33 (7th Cir. 1977) (“There is no basic constitutional right to pretrial discovery in administrative proceedings.”)). Thus, viewing the alleged facts in the light most favorable to Polidi, the gravamen of Polidi's FTCA claims remains misrepresentation, fraud, and deceit, not the breach of a duty that existed separate and apart from the USPTO's obligation to use due care in obtaining and communicating information that Polidi was likely to rely on, see Neustadt, 366 U.S. at 702; Block, 460 U.S. at 298-99; Russ, F.Supp.2d at 910, the intentional torts exception bars waiver of sovereign immunity, and the court should dismiss with prejudice the first, third, fifth, and sixth causes of action for lack of subject matter jurisdiction, see Longworth, 2022 WL 4587520, at *3.

In either scenario, to the extent that Polidi contends that the USPTO either wrongfully withheld potentially exculpatory evidence that was probative of the relevant factors listed by the Supreme Court in Selling v. Radford, or should have considered his arguments regarding the North Carolina disbarment proceeding because of Selling, the court should find that Polidi has failed to plausibly allege that any of the Selling factors apply in the instant case and dismiss the FTCA claims for the reasons explained above. See Pl.'s Resp. [DE-48] at 8-12.

In Selling, the Supreme Court stated that a federal court,

should recognize the condition created by the judgment of the state court unless, from an intrinsic consideration of the state record, one or all of the following conditions should appear: 1. That the state procedure, from want of notice or opportunity to be heard, was wanting in due process; 2, that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty, accept as final the conclusion on that subject; or 3, that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do.

243 U.S. 46, 51 (1917). The precise contours of Polidi's argument are difficult to decipher but given that the court has no obligation to construe Polidi's pro se pleading liberally, a brief discussion of the three factors will suffice for the purpose of determining whether Polidi has plausibly alleged that Selling applies in the instant case. See Polidi, 2015 WL 13674860, at *3; see Chaganti v. Lee, 187 F.Supp.3d 682, 690-91 (E.D. Va. 2016), aff'd sub nom Chaganti v. Matal, 695 Fed.Appx. 545 (Fed. Cir. 2017).

With respect to the first Selling factor, the court should find that Polidi has not plausibly alleged that the USPTO committed clear error in concluding that the proceedings before the NCSB exceeded the due process threshold. See Chaganti, 187 F.Supp.3d at 691 (citing 37 C.F.R. § 11.24(d)(1)(i)) (finding Selling factor one satisfied where petitioner received notice and opportunity to argue that he was entitled to particular files but chose not to). As implied in the Eastern District of Virginia's orders in Polidi v. Lee 1 and III, the USPTO possessed the NCSB disciplinary proceeding records and relied on this information to reciprocally disbar Polidi. See 2015 WL 13674860, at *1, 3; Defs.' Mem. Ex. 7 [DE-12-8] at 2. Additionally, not only did Polidi have an opportunity to participate in the underlying NCSB disciplinary proceeding, but he also received an opportunity to present his objections to the USPTO and point out any improprieties that he believed occurred during either the NCSB proceeding or the USPTO reciprocal disbarment proceeding. Id. Instead of doing so, however, Polidi elected not to contest the USPTO disciplinary notice despite receiving several extensions of time to respond. Id. Thus, even viewing the alleged facts in the light most favorable to Polidi, it is clear that Polidi had both notice and opportunity to contest the USPTO proceeding, and his bare contention that he was owed disclosure of allegedly exculpatory evidence by the Federal Defendants does not constitute an allegation that he received less than the minimum due process requirements that Selling requires. See Chaganti, 187 F.Supp.3d at 691. Moreover, this assertion is irrelevant given that neither the Constitution nor APA require pretrial discovery or disclosure of potentially exculpatory evidence during administrative proceedings. See Polidi, 2015 WL 136748601, at *3.

Turning to the second Selling factor, the court should find that Polidi has not plausibly alleged that the record evidence is insufficient to establish that he violated the North Carolina professional responsibility rules. See Chaganti, 187 F.Supp.3d at 691. Polidi voluntarily surrendered his law license during the NCSB disciplinary proceeding and stipulated to facts that constituted professional misconduct when he did so. Defs.' Mem. Ex. 10 [DE-12-11]. As will be explained further below, Polidi is now judicially estopped from asserting the predicate, see infra II.i.B.3.b; thus, he cannot now challenge the USPTO's decision based on Selling factor two, see Chaganti, 187 F.Supp.3d at 691 (finding Selling factor two satisfied where disbarred petitioner admitted to conduct that violated state ethics rules in underlying disciplinary proceeding).

Finally, with respect to the third Selling factor, the court should find that Polidi has failed to plausibly allege that “some other grave reason” to challenge his reciprocal disbarment exists. See Chaganti, 187 F.Supp.3d at 691. As long as disbarment “was within the appropriate range of sanctions” for Polidi's allegedly unethical conduct, the USPTO did not commit a grave injustice by imposing reciprocal discipline. Id. (quoting In re Att'y Discipline Matter, 98 F.3d 1082, 1088 (8th Cir. 1996)). Polidi makes no argument regarding this point, and notably, the consent order of disbarment entered in the NCSB disciplinary proceeding notes that Polidi used entrusted client funds for personal benefit or the benefit of third parties without authorization in violation of N.C. R. Prof. Conduct L15-2(j) and 8.4(c). Defs.' Mot. Ex. 10 [DE-12-11] at 1. Pursuant to N.C. GEN. STAT. § 84-28(b)(2), “misconduct by any attorney shall be grounds for disbarment.” Thus, the court should find that Polidi's reciprocal disbarment from the USPTO was within the appropriate range of sanctions for the conduct in question and that Polidi has failed to plausibly allege that any of the Selling factors apply here. Id:, see Chaganti, 187 F.Supp.3d at 691; Am. Bar. Assoc. Standards for Imposing Lawyer Sanctions R. 4.11. Dismissal with prejudice remains appropriate.

b. The Eastern District of Virginia has exclusive jurisdiction to review Polidi's APA claims, and sua sponte transfer would be futile.

The Federal Defendants argue that Polidi's second, fourth, and seventh causes of action should be dismissed for lack of subject matter jurisdiction because by statute, judicial review of USPTO disciplinary decisions is limited to the Eastern District of Virginia. Defs.' Mem. [DE-12] at 19-20. Polidi appears to counter that because his instant APA claims have been brought under 5 U.S.C. § 706 and 5 U.S.C. § 500, not 35 U.S.C. § 32, exclusive jurisdiction is not vested in the Eastern District of Virginia. Pl.'s Resp. [DE-48] at 17.

To the extent that Polidi claims that his current APA claims are distinct from those he previously brought under § 32, the court should find that he is incorrect. Congress has given the USPTO, a federal agency, broad authority to “govern the conduct of proceedings before it and to govern the recognition and conduct of attorneys.” Lacavera v. Dudas, 441 F.3d 1380, 1383 (Fed. Cir. 2006), cert, denied, 549 U.S. 1205 (2007) (citing Stevens, 366 F.3d at 1333). As part of that grant of authority, § 32 specifically provides that the Director of the USPTO may,

after notice and opportunity for a hearing, suspend or exclude, . . . from further practice before the Patent and Trademark Office, any person, agent, or attorney shown to be incompetent or disreputable, or guilty of gross misconduct.... The United States District Court for the Eastern District of Virginia, under such conditions and upon such proceedings as it by its rules determines, may review the action of the Director upon the petition of the person so refused recognition or so suspended or excluded.

Review of a USPTO disciplinary decision is conducted under the APA. See Polidi, 2015 WL 13674860, at *1 (citing Bender v. Dudas, 490 F.3d 1361, 1365 (Fed. Cir. 2007)). Thus, while the statutes are technically separate, § 32 does not function independently as Polidi claims. See id.

Based on a facial reading of § 32, the court should hold that the Eastern District of North Carolina does not have subject matter jurisdiction to decide Polidi's APA claims. See Chaganti, 695 Fed.Appx. at 548 (“Pursuant to 35 U.S.C. § 32, Mr. Chaganti petitioned the United States District Court for the Eastern District of Virginia for review of the Director's final order.”). However, rather than transfer the action to the Eastern District of Virginia, the Federal Defendants urge the court to dismiss Polidi's APA claims outright. Defs.' Mem. [DE-12] at 20. Specifically, the Federal Defendants state that transferring the case “would be futile as [the Eastern District of Virginia] has warned [Polidi], on pain of monetary sanction, against filing any further action based on the disbarments.” Id. (citing Defs.' Mot. Ex. 7 [DE-12-8] at 35). Polidi merely avers that venue is properly laid in the Eastern District of North Carolina. Pl.'s Resp. [DE-48] at 17.

If a court finds that it lacks jurisdiction over a case, “the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed . . . .” 28 U.S.C. § 1631. Accordingly, a court may, on its own initiative, transfer an action to cure want of jurisdiction. See, e.g., Estate of Thompson ex rel. Thompson v. Mission Essential Pers., LLC, No. 1:11CV547, 2013 WL 6058308, at *7 (M.D. N.C. Nov. 14, 2013), adopted sub nom. Estate of Thompson v. Mission Essential Pers., LLC, 2014 WL 4745947 (M.D. N.C. Sept. 23,2014); Halim v. Donovan, No. 12-00384 (CKK), 2102 WL 3291830, at * 2 (D.D.C. July 1, 2013) (“While a Court may on its own initiative transfer an action under 28 U.S.C. § 1631, the law of this Circuit also holds that sua sponte transfers pursuant to 28 U.S.C. § 1631 are committed to the discretion of the District Court where no party has moved to transfer a case brought in the wrong jurisdiction.”) (internal quotation and citation omitted). “The phrase ‘if it is in the interest of justice' relates to claims which are nonfrivolous and as such should be decided on the merits.” Reaves v. Hagel, No. 5:12-CV-795-FL, 2013 WL 5674981, at *3 (E.D. N.C. Oct. 17, 2013).

Here, the Federal Defendants attached an order issued by the Eastern District of Virginia in Polidi v. Lee III that contains the following pertinent language:

[G]iven plaintiff's extensive repetitive litigation about his disbarment and the Court having previously warned him that continuing such improper repetitive litigation may subject him to sanctions, it is hereby ORDERED that plaintiff will be assessed the litigation expenses and some portion of government or private counsel's hourly rates if he files another meritless pleading in this court raising any issues related to his disbarment from the USPTO or the North Carolina State Bar.

Defs.' Mot. Ex. 7 [DE-12-8] at 35. Considering this language and the undersigned's ultimate recommendation that all claims against the Federal Defendants be dismissed for reasons unrelated to the Eastern District of Virginia's exclusive jurisdiction over USPTO disciplinary claims, the court should dismiss with prejudice the second, fourth, and seventh causes of action rather than transfer the case. See Mahoney v. Martin, No. 5:21-HC-02150-M, 2021 WL 4314719, at *4 (E.D. N.C. Sept. 22, 2021) (“Because petitioner is not entitled to the relief that he seeks, it is not in the interest of justice to transfer the action back to the United States District Court for the District of Rhode Island.”) (citing Jones v. Braxton, 392 F.3d 683, 691 (4th Cir. 2004)).

c. The DJA does not confer subject matter jurisdiction based on the facts pleaded in the amended complaint.

The Federal Defendants argue that the court should dismiss Polidi's eighth cause of action for lack of subject matter jurisdiction. Defs.' Mem. [DE-12] at 20-22. Specifically, the Federal Defendants contend that the DJA is not an independent source of subject matter jurisdiction, that the FTCA and APA do not waive sovereign immunity in the instant case, and that therefore, Polidi has failed to establish subject matter jurisdiction or waiver of sovereign immunity for the DJA claim. Id. In his response, Polidi merely states that the court “is submitted to possess jurisdiction over the declaratory judgment claim in view of the [ ] Court's jurisdiction over the remaining claims.” Pl.'s Resp. [DE-48] at 17.

The DJA provides that, “In a case of actual controversy within its jurisdiction,... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). As the statutory language makes clear, “a claim under the Declaratory Judgment Act, even if made, does not confer jurisdiction.” N. C. Ins. Guar. Assoc, v. Becerra, No. 5:20-CV-522-FL, 2021 WL 4302243, at *7 n.4 (E.D. N.C. Sept. 21, 2021) (quoting Interstate Petroleum Corp. v. Morgan, 249 F.3d 215, 221 n.7 (4th Cir. 2001)); see also Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (explaining that, through the DJA, “Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction”). Accordingly, absent some independent jurisdictional basis, a DJA claim must fail. Breedlove v. Heath, No. 5:21-CV-132-D, 2022 WL 433312, at *1 (E.D. N.C. Feb. 11, 2022) (citing CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 55-56 (4th Cir. 2011)).

As explained supra, it is recommended that the court dismiss Polidi's FTCA and APA claims for lack of subject matter jurisdiction. See II.i.B.2.a-b. Consequently, because the DJA does not independently confer subject matter jurisdiction, the court should also dismiss Polidi's DJA claim. See Breedlove, 2022 WL 433312, at *1. However, if the court does not dismiss either the FTCA or APA claim, it should still dismiss Polidi's DJA claim because the DJA does not waive sovereign immunity. See Worsham v. U.S. Dep't of the Treasury, ELH-12-2635, 2013 WL 5274358, at *7 (D. Md. Sept. 17, 2013) (“The Declaratory Judgment Act plainly does not operate as an express waiver of sovereign immunity . . . because it neither provides nor denies a jurisdictional basis for actions under federal law, but merely defines the scope of available declaratory relief”) (internal citations omitted).

DJA claims must only be considered if sovereign immunity has been waived through some other claim, see Longworth, 2022 WL 4587520, at *3, and considering that the undersigned recommends dismissal of the FTCA claims because Polidi has failed to plausibly allege waiver of sovereign immunity, see supra II.i.B.2.a, the DJA claim may only be heard if the APA provides a waiver, see Longworth, 2022 WL 4587520, at *3. Under 5 U.S.C. § 702, “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” However, the APA does not provide for judicial review where there is a preclusion of review statute and a special statutory review procedure provided, Ocean Breeze Festival Park, Inc. v. Reich, 853 F.Supp. 906, 917 (E.D. Va. 1994) (citing Hostetter v. United States, 739 F.2d 983,' 985 (4th Cir. 1984)), and as explained supra, § 32 provides such a detailed statutory review scheme, see Swyers v. U.S. Pat. & Trademark Off., No. 1:16-cv-1042, 2016 WL 6897788, at *1 (E.D. Va. Nov. 21, 2016) (explaining prior case dismissed because the court “lacked jurisdiction to hear the claim because Congress intended through 35 U.S.C. § 32 to channel all Article III review of PTO disciplinary proceedings to a single court and only after the conclusion of administrative proceedings”) (citation omitted). Accordingly, it is recommended that the court find that the FTCA, APA and DJA do not waive sovereign immunity in the instant case and dismiss the eighth cause of action with prejudice.

3. All causes of action stated against the Federal Defendants are subject to dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim.

The Federal Defendants argue that if the court does not dismiss the claims against them for lack of subject matter jurisdiction, then dismissal pursuant to Fed.R.Civ.P. 12(b)(6) is appropriate because res judicata bars Polidi's APA claims in the second, fourth, and seventh causes of action and the DJA claim in the eight cause of action, and judicial estoppel bars Polidi's FTCA claims in the first, third, fifth, and sixth causes of action. Defs.' Mem. [DE-12] at 22-26. Polidi counters that “neither res judicata nor collateral estoppel duly applies.”⁴ Pl.'s Resp. [DE-48] at 15-17.

4 It is unclear whether Polidi's reference to “collateral estoppel” was intended to mean “judicial estoppel.”

a. Polidi's APA and DJA claims are barred by res judicata.

The Federal Defendants argue that Polidi's APA and DJA causes of action fail to state a claim under Rule 12(b)(6) because of res judicata, which provides that “[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action,” United States v. Oudeh, No. 5:22-CV-140-D, 2023 WL 8531774, at *3 (E.D. N.C. Dec. 8, 2023) (quoting Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); and citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979); Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 161-62 (4th Cir. 2008); Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004); Parks v. Petsmart, No. 5:13-CV-777, 2014 WL 11996387, at *2 (E.D. N.C. Feb. 12,2014), aff'd, 577 Fed.Appx. 210 (4th Cir. 2014) (per curiam)). Defs.' Mem. [DE-12] at 22-25. For res judicata to apply, the party invoking the doctrine must prove three things: the existence of a final judgment on the merits in a prior suit, an identity of the cause of action in both the earlier and later suit, and an identity of parties or their privies in the two suits. Id. (citing . Meekins v. United Transp. Union, 946 F.2d 1054,1057 (4th Cir. \99T)', Andrews v. Daw, 201 F.3d 521, 524 (4th Cir. 2000)). When all three factors are satisfied, the precluded claim may properly be dismissed on a Rule 12(b)(6) motion. Reaves v. Benjamin, No. 5:18-CV-221-FL, 2018 WL 4289318, at *3 (E.D. N.C. Sept. 7, 2018), appeal dismissed and remanded, 765 Fed.Appx. 7 (4th Cir. 2019) (citing Andrews, 201 F.3d at 524).

Here, the Federal Defendants state that the USPTO's decision to impose reciprocal discipline was upheld on direct appeal, barring relitigation of .Polidi's APA claims, and that the Eastern District of Virginia previously deemed the DJA claim precluded. Defs.' Mem. [DE-12] at 22; see Polidi, 709 Fed.Appx. at 1019; Defs.' Mot. Ex. 7 [DE-12-8] at 18-24. Turning first to the APA claims, Polidi raises a variation of the same argument that he posed with respect to this court's subject matter jurisdiction over the same claims: namely, that his prior lawsuits were brought under 35 U.S.C. § 32, while the current suit has been brought under 5 U.S.C. §§ 500 and 706. Pl.'s Resp. - [DE-48] at 15-17. Polidi contends that the APA provides relief that is separate and apart from the relief provided by § 32; “addresses matters which were not and could not have been brought or adjudicated under [§ 32]”; and allows a wider scope of discovery, in accordance with the Federal Rules of Civil Procedure, than § 32, which leaves the matter of discovery to the Eastern District of Virginia's discretion (and by extension, E.D. Va. Local Civ. R. 83.5). Id. at 16.

To the extent that Polidi argues that res judicata does not apply because the claims at issue in the current suit were brought under a different statute in Polidi's prior lawsuits, he is incorrect. As previously detailed, the APA and § 32 work in tandem because Congress has delegated authority to the USPTO via § 32, pursuant to the APA. See supra II.i.B.2.b. Thus, courts review USPTO disciplinary decisions in light of both statutes, and § 32 is functionally inseparable from the APA. Id. However, even assuming for the sake of discussion that Polidi's contentions on this issue are correct, he has failed to plausibly allege that his instant APA claims are not barred by res judicata, and the court should dismiss the second, fourth, and seventh causes of action pursuant to Fed.R.Civ.P. 12(b)(6).

Beginning with the first factor of the res judicata analysis, the existence of a final judgment on the merits in a prior suit is indisputable here, as the Federal Defendants cite to the final order in Polidi v. Lee I, which affirmed the USPTO and dismissed Polidi's petition for judicial review. Defs.' Mem. [DE-12] at 22; see 2015 WL 13674860; In re Rodgers, No. 5:13-CV-764-FL, 2016 WL 917317, at *5 (E.D. N.C. Mar. 8, 2016) (“A ‘final judgment on the merits' is one ‘which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.'”) (quoting Veazey v. City of Durham, 57 S.E.2d 377, 381 (N.C. 1950)). The second factor raises a slightly higher hurdle given Polidi's emphasis on the instant suit's claims under 5 U.S.C. §§ 500 and 706 versus Polidi v. Lee Ps 35 U.S.C. § 32 claims. However, the court should nevertheless find that the § 32 claims in Polidi v. Lee I are identical to the instant APA claims for claim preclusion purposes. See Oudeh, 2022 WL 18028281, at *3.

When a legal claim raised in a subsequent action differs from a legal claim raised in a past action, courts apply a transactional approach to determine identity. McDaniel v. Green Dot Corp., No. 5:23-CV-406-D, 2024 WL 102866, at *4 (E.D. N.C. Jan. 9, 2024), appeal dismissed, No. 241100, 2024 WL 2558912 (4th Cir. May 24, 2024) (citing Meekins, 946 F.2d at 1057). Through this lens, the appropriate inquiry is whether the new claim arises out of the same transaction or series of transactions as the claim resolved by the prior judgment. Id. In making this determination, the court should consider the claims' “relatedness in time, space, origin, or motivation, and whether, taken together, they form a convenient unit for trial purposes.” Cruthirds, 2017 WL 3754764, at *5 (citing Pittston Co. v. United States, 199 F.3d 694, 704 (4th Cir. 1999) (quoting Restatement (Second) of Judgments § 24 cmt. b))).

Applying the transactional approach to the instant case is revealing. In Polidi v. Lee I, Polidi sought judicial review via § 32 of the USPTO's order imposing reciprocal discipline and discovery of any material that “tends to assist in the defense of the present matter.” 2015 WL 13674860, at *2. Polidi contended that the USPTO was obligated to disclose potentially exculpatory information under Brady v. Maryland and that he should be permitted to subpoena the NCSB for such materials as well. Id. at *2-3. Similarly, in the present case, Polidi once more contests the USPTO's decisions to reciprocally disbar him and deny discovery-including discovery of allegedly exculpatory evidence-via the APA. Am. Compl. [DE-30] ¶¶ 49-53, 6870, 104-06. While the instant APA claims and the Polidi v. Lee I § 32 claims were brought under different statutes, considering their relatedness in time, space, origin, or motivation, and whether, taken together, they form a convenient unit for trial purposes, it is clear that Polidi had the same facts available to him at the time of both lawsuits and that he seeks recovery for conduct that shares the same basic nucleus of facts. See McMillan v. Metropolitan Life Ins. Co., No. 7:14-CV-39-F, 2014 WL 7205227, at *3 (E.D. N.C. Dec. 17, 2014) (finding res judicata factor two satisfied where plaintiffs earlier and later claims were “rooted in the same transactional nucleus of facts, namely that he (1) received disability benefits, (2) desired to return to work, (3) was told that he could not return to work because he was still disabled, and (4) was allegedly deceived as to his actual disability status and ability to return to work.”); Cruthirds, 2017 WL 3754764, at *5 (“Although plaintiff has alleged new claims for disability discrimination, violation of EEOC guidelines, and intentional infliction of emotional distress in her amended complaint, these claims arise from the same pattern of alleged discriminatory and retaliatory conduct that formed the basis of her earlier suit.”). Thus, Polidi's APA claims could have been raised (and arguably were raised) in Polidi v. Lee I and are identical for res judicata purposes. See id.

Finally, regarding the third res judicata factor, in Polidi v. Lee I the parties were Polidi and the USPTO, see 2015 WL 13674860, and both Polidi and the USPTO are parties to the instant case, see Am. Compl. [DE-30] ¶ 2. The individual Federal Defendants were not parties to the earlier suit, see Polidi, 2015 WL 13674860, however, there is a long-standing rule in the Fourth Circuit that a final judgment in a suit against the sovereign bars further litigation against an agent or employee of the sovereign in her official capacity. United States v. Wise, No. 5:14-CV-844, 2016 WL 755627, at *3 (E.D. N.C. Feb. 25, 2016) (“Thus, because the Wises earlier levied an unsuccessful suit against the USDA, they cannot now assert any claim against the USDA employees previously named in this suit in their official capacities, where the two suits arise out of the same factual basis.”) (citing Thurston v. United States, 810 F.2d 438, 444 (4th Cir. 1987) (“A suit against a federal official for acts performed within his official capacity amounts to an action against the sovereign.”)). That rule clearly applies here because the individual Federal Defendants are named in their official capacities following a final judgment on the merits in a suit arising out of the same core nucleus of fact. See Polidi, 2015 WL 13674860. Accordingly, the court should find that Polidi's second, fourth, and seventh causes of action are precluded and dismiss them with prejudice. See Wise, 2016 WL 755627, at *3; Oudeh, 2023 WL 8531774, at *3.

For similar reasons, the court should also find that Polidi's DJA claim is barred by res judicata. The Federal Defendants cite to an order issued by the Eastern District of Virginia in Polidi v. Lee III. Defs.' Mem. [DE-12] at 22; see Defs.' Mot. Ex. 7 [DE-12-8] at 18-24.⁵ In that order, the court dismissed a nearly identical DJA claim for lack of subject matter jurisdiction, finding that the United States had not waived its sovereign immunity. Defs.' Mot. Ex. 7 [DE-12-8] at 18. However, the Eastern District of Virginia expressly stated in dicta that “[e]ven if the Court were to have jurisdiction, it is abundantly clear that the [D]A] claim against the United States is barred by the doctrine of res judicata .... The entirety of [Polidi's] case consists of nothing more than his continued disagreement with the USPTO's denial of discovery in his disciplinary proceeding and ultimate disbarment-decisions that both the Eastern District of Virginia and the Federal Circuit have already upheld.” Id. at 22-23 (emphasis omitted).

5 This Recommendation cites to the page number reflected in the CM/ECF footer where, as here, that number differs from the document's internal pagination.

The Eastern District of Virginia's reasoning is persuasive. As explained above, in Polidi v. Lee I, Polidi challenged the USPTO's decisions to impose reciprocal discipline and deny discovery of potentially exculpatory material. 2015 WL 13674860, at *2. The case was decided in a final order that affirmed the decision of the USPTO and dismissed Polidi's petition for judicial review, and that order was subsequently affirmed by the Federal Circuit. Id.', 709 Fed.Appx. 1016; see In re Rodgers, 2016 WL 917317, at *5. Polidi now asks the court to declare that the Federal Defendants' conduct during the USPTO disciplinary proceeding was inconsistent with federal law, public policy, and “other ethical mandates which are believed to govern all USPTO practitioners”; that the Federal Defendants “had knowledge that the Orders in the subject USPTO proceeding were procured improperly” and entered without authority, without disclosing that information to Polidi; that the Federal Defendants' actions “resulted in injury to the plaintiff, including continuing his exclusion from practicing before the USPTO”; and that the Federal Defendants “had actual knowledge that exculpatory evidence was being withheld and concealed,” demonstrating “a deprivation a due process in the underlying ethics prosecution by the NCSB.” Am. Compl. [DE-30] ¶¶ 107-16. Viewed through a transactional lens, McDaniel, 2024 WL 102866, at *4, this claim shares the same factual basis as the claims asserted in Polidi v. Lee I and has been brought against the USPTO and parties in privity with the USPTO, see Wise, 2016 WL 755627, at *3. Consequently, all three res judicata factors are satisfied and the court should dismiss the eighth cause of action with prejudice.

b. Polidi's FTCA claim is barred by judicial estoppel.

The Federal Defendants argue that Polidi has failed to state a plausible FTCA claim because the doctrine of judicial estoppel “bars [Polidi's] assertion of the predicate, namely, he ‘is judicially estopped from alleging that his disbarment was obtained by fraud or misconduct on the part of those participating in the proceeding.'” Defs.' Mem. [DE-12] at 25-26 (quoting Polidi v. Truax, No. 1;17CV54,2017 WL 4465408, at *2 (M.D. N.C. June 1, 2017), aff'd, 706 Fed.Appx. 797 (4th Cir. 2017)). Polidi counters that,

Importantly, in view of the administrative filings in this matter and the lack of any response, the claims under the FTCA were not even ripe at the time of filing the petition for judicial review, or of filing either the original or amended complaint in the Bivens action. The Defendants actually asserted to the Eastern District of Virginia that the Court lacked subject matter jurisdiction over such claims because they had not yet responded to the administrative filings.

Pl's. Resp. [DE-48] at 17. Thus, he does not appear to address the Federal Defendants' judicial estoppel argument, however the undersigned will briefly consider the merits of their position below.

Judicial estoppel “precludes a party from adopting a position that is inconsistent with a stance taken in prior litigation.” Oudeh, 2022 WL 18028281, at *6 (citing Lowery v. Stovall, 92 F.3d219, 223 (4th Cir. 1996)). The purpose of the doctrine is to prevent a party “from playing fast and loose with the courts, and to protect the essential integrity of the judicial process.” Id. Judicial estoppel applies when the party to be estopped takes a factual position that is inconsistent with a position taken in prior litigation; the earlier position was accepted by the court in the first proceeding; and the party to be estopped acted intentionally, not inadvertently. Id.

In Polidi v. Truax, the court found that Polidi “consented to the surrender of his law license based upon his stipulation to certain facts. He should not be permitted to thereafter sue the adversaries in those disbarment proceedings for irregularities in any facts that were found in that proceeding based upon Plaintiffs stipulation.” 2017 WL 4465408, at *2. This holding is persuasive because the same circumstances apply in the instant case, where Polidi seeks to challenge the USPTO disciplinary proceeding via the FTCA. See Defs.' Mem. Ex. 10 [DE-12-11]. Accordingly, the court should find that Poldi is judicially estopped from asserting that the NCSB and USPTO disciplinary proceedings and his eventual disbarment were based on fraud or unethical conduct and dismiss with prejudice the first, third, fifth, and sixth causes of action for failure to state a claim.

4. Alternatively, all Federal Defendants except for the United States are subject to dismissal.

The Federal Defendants argue that if the court decides not to dismiss Polidi's claims against them for lack of subject matter jurisdiction or failure to state a claim, then the USPTO and all individual Federal Defendants should be dismissed from the lawsuit. Defs.' Mem. [DE-12] at 26. Polidi does not provide any argument to the contrary, but the undersigned will briefly evaluate the merits of the Federal Defendants' position below.

Turning first to the individual Federal Defendants, all are named in their official capacities only. “Suits against public officers in their official capacities actually raise claims against the entity for which the officer works?' Ferrell v. Town of Lillington, No. 5:15-CV-677-BO, 2016 WL^;3348538, at *2 (E.D. N.C. June 13, 2016) (quoting Anderson v. Caldwell Cnty., 524 Fed.Appx. 854, 856 n.l (4th Cir. 2013) (unpublished) (per curiam); and citing Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.'”)). As such, courts routinely dismiss as redundant claims naming both individuals in their official capacities and the entities that they represent. See id. (dismissing official capacity suits against law enforcement officers as duplicative of claims against the Town of Lillington); Hill v. Robeson Cnty., N.C. , 733 F.Supp.2d 676, 682 (E.D. N.C. -2010); Calloway v. City of Goldsboro, No. 5:16-CV-791-D, 2017 WL 11746219, at *3 (E.D. N.C. Aug. 4, 2017). Thus, dismissal with prejudice is recommended here.

The court should also dismiss Polidi's claims against the USPTO with prejudice. To begin with, the FTCA provides that “[T]he authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under [ ] this title.” 28 U.S.C. § 2679(a). Thus, the United States is the only proper defendant in an FTCA action-not an agency like the USPTO. Vickers v. United States, 1:20 CV 92 MR WCM, 2021 WL 1811570, at *3 (W.D. N.C. May 6, 2021) (citing 28 U.S.C. §§ 1346(b) and 2679(a); Metz v. U.S. Postal Serv., 836 F.2d 1342, 1988 WL 1076, at *1 (4th Cir. Jan. 4,1988) (unpublished); Iodice v. United States, 289 F.3d 270, 273 n. 1 (4th Cir. 2002); Cole v. Principi, 2004 WL 878259, at *2 (M.D. N.C. April 4, 2004); Baird v. Haith, 724 F.Supp. 367, 377 (D. Md. 1998)). The limitations established by the APA and DJA are not as strict. See 5 U.S.C. § 703 (proper defendants in an APA action are “the United States, the agency by its official title, or the appropriate officer”); 28 U.S.C. § 2201(a) (“any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought”). However, considering that the United States is already named as a party in the instant case and is a proper defendant for Polidi's FTCA, APA, and DJA claims while the USPTO is not, it is recommended that the court dismiss the claims against the USPTO as duplicative.

C. The State Defendants' Motion to Dismiss

The State Defendants argue that Polidi's claims against them should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1), (2), (4), and (6). Defs.' Mot [DE-73]. First, the State Defendants contend that they are entitled to the absolute immunity afforded to quasi-judicial tribunals, prosecutors, judicial officers, and other personnel in the conduct of their official duties. Defs.' Mem. [DE-77] at 11-14. Second, the State Defendants argue that Polidi has failed to state a § 1983 claim against them in their official capacities. Id. at 15. Third, the State Defendants assert that Polidi's § 1983 claim, North Carolina Constitution-based claim, and breach of fiduciary duty claim are time-barred. Id. at 15-17. Fourth, the State Defendants aver that Polidi lacks standing to seek -a declaratory judgment. Id. at 17-20. Fifth, the State Defendants state that Polidi's official capacity claims are barred by the Eleventh Amendment. Id. at 20-22. And finally, the State Defendants contend that Polidi's individual capacity claims should be dismissed for insufficient service of process. Id. at 22-25. Polidi counters that service was proper, that the statute of limitations has not run, that the State Defendants are not immune from suit, and that he has stated “prima facie claims” against them. Pl.'s Resp. [DE-92] at 2-10.

1. The State Defendants are entitled to quasi-judicial immunity.

The State Defendants argue that Polidi's claims should be dismissed because they are entitled to absolute immunity by virtue of the quasi-judicial and quasi-prosecutorial roles they occupied throughout the NCSB's grievance investigation into Bannon. Defs.' Mem. [DE-77] at 11-14. Polidi contends that “[t]here is no absolute immunity, prosecutorial or otherwise, for a failure to perform administrative duties” and that “much of the actions-and inactions- complained of were in connection with the investigation of the ethics complaint against Ms. Bannon and are not entitled to immunity, particularly to the extent of any involvement by independent investigators or the like, or other ‘John Doe' parties whose identities are not currently known to the plaintiff.” Pl.'s Resp. [DE-92] at 9.

Under common law doctrine, “all persons-governmental or otherwise-who [a]re integral parts of the judicial process” have “absolute immunity” from suit. Brisco v. LaHue, 460 U.S. 325, 335 (1983); accord Wynn v. Frederick, 895 S.E.2d 371, 380 (N.C. 2023) (“Because judicial immunity protects judicial officials from litigation arising out of acts performed in their judicial capacity, we conclude that judicial immunity applies to official capacity and individual capacity claims.”). Where prosecutorial immunity is concerned, the relevant question is whether the prosecutor was serving in a judicial or investigational capacity at the time the conduct occurred. Pak v. Ridgell, No. RDB-10-01421, 2011 WL 3320197, at *6 (D. Md. Aug. 1, 2011) (citing Rums v. Reed, 500 U.S. 478 (1991) (granting absolute immunity to prosecutor for presenting evidence in probable cause hearing but only qualified immunity for advising police officers); Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (denying absolute immunity for prosecutors who, before arrest was made, allegedly fabricated evidence during preliminary investigation and allegedly made false statements at press conference)).

Courts that have considered the issue have extended judicial and prosecutorial immunity to bar counsel and grievance committees as well. Pak, 2011 WL 3320197, at *6 (citing Clulow v. State of Oklahoma, 700 F.2d 1291,1298 (10th Cir. 1983) (“[B]ar officials charged with the duties of investigating, drawing up, and presenting cases involving attorney discipline enjoy absolute immunity from damage claims for such functions.”); Simons v. Bellinger, 643 F.3d 774 (D.C. Cir. 1980) (granting absolute immunity to members of the Committee on Unauthorized Practice of Law, who investigate violations, determine who is prosecuted, and direct the prosecution); Hirsh v. Justs, of the Sup. Ct. of the State of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (granting bar counsel absolute quasi-judicial immunity for role in attorney disciplinary system)); see also Couam v. S.C. Dep't of Motor Vehicles, No. 3:15-4870-MBS-PJG, 2016 WL 11409592, at *5 (D.S.C. May 12, 2016) (finding disciplinary counsel members immune for actions undertaken in response to complaints filed against attorney and judicial defendants) (citing Pak v. Ridgell, 476 Fed.Appx. 750 (4th Cir. 2012) (finding bar counsel immune from suit for participation in attorney disciplinary proceedings); Stein v. Disciplinary Bd., 520 F.3d 1183, 1193 (10th Cir. 2008) (recognizing absolute prosecutorial immunity extended to bar officials charged with duties involving attorney discipline)), adopted in part and rejected in part by, 2016 WL 4204070 (D.S.C. Aug. 10, 2016).

Here, both State Defendants were involved in the grievance case opened by the NCSB after Polidi complained about misconduct that allegedly occurred while Carmen Bannon prosecuted Polidi for violating NCSB ethics rules. Am. Compl. [DE-30] ¶ 117. Cloutier, then-Deputy Counsel for the NCSB, was the investigating attorney in the grievance case against Bannon, while Brown was the then-Chairperson of the NCSB Grievance Committee. Id. ¶¶ 118, 120. Polidi contends that Cloutier and Brown were Bannon's close colleagues and this presented a clear conflict of interest, which should have, but did not, prevent them from adjudicating the grievance case against her; that the NCSB failed to relay case details and information about the grievance process to Polidi because, by the NCSB's own admission, that correspondence was sent to the incorrect address; that Cloutier and Brown failed to provide Polidi with an opportunity to “address his concerns about [Bannon's] alleged misconduct to [the NCSB] or to other members of the Bar”; that Cloutier and Brown, “quite simply, informed the plaintiff that the grievance case was dismissed, prior to its deliberation by the Grievance Committee, pursuant to Bar rules, policies, and practices. The procedural reason was that [the State Defendants] agreed to the dismissal”; and that “one of the purposes of handling and dismissing the grievance case against Ms. Bannon how it proceeded was to continue to secrete the single document which the plaintiff has sought, including any misconduct by Ms. Bannon.” Id. ¶¶ 117-25.

Applying the above alleged facts to the relevant precedent, the court should find that the State Defendants have absolute quasi-judicial prosecutorial immunity for their official acts, which form the foundation of Polidi's claims against them. Polidi's only argument relies on Penate v. Kaczmarek, 928 F.3d 128 (1st Cir. 2019), an out-of-circuit case that differs meaningfully from the instant litigation. Pl.'s Resp. [DE-92] at 9. In Penate, the First Circuit considered an appeal from an order denying absolute immunity to Anne Kaczmarek, a former Assistant Attorney General whose office had prosecuted Rolando Penate, the appellee, prior to his § 1983 action. 928 F.3d at 130. Penate alleged that Kaczmarek unlawfully withheld exculpatory evidence from Penate's counsel while the charges against him were pending; that the withheld evidence showed that a drug laboratory chemist, Sonja Farak, had been battling a drug addiction and had tampered with samples she was assigned to test around the time she tested the samples in Penate's case; and that Kaczmarek had obtained the evidence at issue while she was prosecuting Farak on state charges of tampering with evidence and drug possession. Id. The First Circuit ultimately affirmed the trial court's decision to deny immunity, emphasizing that,

[T]he Supreme Court has rejected claims to absolute prosecutorial immunity where the prosecutor's conduct lacked a ‘functional tie to [a] judicial process' initiated by the prosecutor. Buckley, 509 U.S. at 277. So, absolute immunity does not protect prosecutors when they give advice to police during a criminal investigation, Burns, 500 U.S. at 495-96, fabricate evidence long before a grand jury has made an indictment, Buckley, 509 U.S. at 275-76, or make statements to the press in announcing an indictment, Id. at 276-78. These functions have been deemed ‘administrative' or ‘investigative,' and, in exercising them, ‘a prosecutor is in no different position than other executive officials,' such as police, and ‘qualified immunity is the norm for them.' Id. at 278.

Id. at 136 (cleaned up).

According to the appellate court, Kaczmarek was not entitled to prosecutorial immunity because she was not functioning as Farak's prosecutor when she withheld evidence relevant to Penate's prosecution, a case that she was not involved in. Id. at 137. The court reasoned that Kaczmarek possessed the evidence because she was Farak's prosecutor, but the mere fact that she had acquired it during the judicial phase of the criminal process did not render her decision to withhold it from Penate's case a prosecutorial one. Id. (citing Lampton v. Diaz, 639 F.3d 223, 227 (5th Cir. 2011) (denying immunity for prosecutor's disclosure of tax records acquired during prosecution to state ethics board); Yarris v. Cnty. of Del., 465 F.3d 129, 137-38 (3d Cir. 2006) (denying absolute prosecutorial immunity to prosecutors who withheld evidence in postconviction proceedings assigned to other prosecutors, even though the prosecutors had acquired the evidence at issue through their roles as prosecutors in the initial criminal proceedings); Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 29 (5th Cir. 1995) (“The prosecutorial nature of an act does not spread . . . like an inkblot, immunizing everything it touches.”)).

Here, Polidi is presumably attempting to liken Cloutier and Brown's actions during the grievance investigation to Kaczmarek's decision to withhold potentially exculpatory evidence from Penate's defense counsel. However, the Fourth Circuit has held that the principle that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another,” Leeke v. Timmerman, 454 U.S. 83, 85-86 (1981) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)), applies “with equal force to State Bar disciplinary proceedings,” Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (finding plaintiff's claim frivolous, and dismissal with prejudice appropriate, because “[appellants lack any constitutional right to require a State Bar to process a grievance or conduct an investigation”) (citing Doyle v. Okla. Bar Ass'n, 998 F.2d 1559, 1568 (10th Cir. 1993)). Thus, to the extent that Polidi contends the State Defendants owed him information about or participation in the grievance proceeding, he is simply incorrect. See Id. Additionally, Polidi's remaining complaints-that the grievance proceeding was improperly conducted and concluded-are indisputably “functionally tied” to a judicial process initiated by the prosecutor, i.e., the grievance proceeding. See Kaczmarek, 928 F.3d at 136 (citing Buckley, 509 U.S. at 277); Pak, 2011 WL 3320197, at *6; Couam, 2016 WL 11409592, at *5. Accordingly, the court should find that the State Defendants are entitled to absolute immunity for their quasi-prosecutorial acts and dismiss the ninth, tenth, eleventh, and twelfth causes of action with prejudice.

2. Polidi's § 1983 official capacity claims for monetary damages are also subject to dismissal for failure to state a claim.

The State Defendants argue that the court should dismiss Polidi's § 1983 official capacity claims because Polidi seeks, inter alia, monetary damages in his prayer for relief. Defs.' Mem. [DE-77] at 15. Polidi does not address this particular argument in his response.

In Sutton v. N. C. State Bar, this court stated that,

[A] State is not a ‘person' against whom a § 1983 claim for money damages might be asserted. Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002). This same rule applies to state agencies and officials acting in their official capacity. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).

No. 5:14-CV-243-BR, 2014 WL 4546017, at *6 (E.D. N.C. Sept. 12, 2014) (quoting Wolfenden v. Long, No. 5:09-CV-00536-BR, 2010 WL 2998804, at *7 (E.D. N.C. July 26, 2010) (some internal citations omitted)). The NCSB is a state agency, Id. (citing N.C. GEN. STAT. § 84-15; Cunningham v. Selman, 689 S.E.2d 517, 525 (N.C. Ct. App. 2009)), and in the instant case, the State Defendants are named in their official capacities and Polidi requests to “have and recover of Defendants damages to be determined at a trial of this matter,” Am. Compl. [DE-30] at 27. Accordingly, it is recommended that the court dismiss Polidi's § 1983 official capacity claims for monetary damages with prejudice. See Sutton, 2014 WL 4546017, at *6 (“[T]he court will dismiss plaintiffs claims for monetary damages against the State Bar, the [Disciplinary Hearing Convention], and Morelock, Bannon, Winstead, and Jean in their official capacities.”).

3. The statute of limitations does not provide an alternative ground for dismissal of Polidi's § 1983 claim, North Carolina Constitution-based claim, and breach of fiduciary claim at this time.

The State Defendants argue that Polidi's § 1983 claim, North Carolina Constitution-based -claim, and breach of fiduciary claim are time-barred based on the date the NCSB grievance proceeding against Bannon concluded and the date that Polidi amended his complaint to add the State Defendants as parties to the instant case. Defs.' Mem. [DE-77] at 15. According to the State Defendants, the grievance investigation concluded on October 21,2020; Polidi filed his complaint on December 16, 2022, [DE-1]; and the State Defendants and their corresponding claims were added on November 2, 2023, Am. Compl. [DE-30], Defs.' Mem. [DE-77] at 15. Polidi counters that he was not notified about the concluded grievance proceeding until November 2, 2020, and as a result, the State Defendants and their respective claims were added before the statute of limitations had run. Pl.'s Resp. [DE-92] at 8-9.

Congress has not adopted a specific statute of limitations for § 1983 claims; instead, the limitations period is determined by the law of the state in which the cause of action arose. Harrell v. Hayes, No. 5:22-CT-03401-M-RJ, 2023 WL 3292874, at *2 (E.D. N.C. May 5, 2023) (citing Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v. Balt. City State's Att'ys Off., 767 F.3d 379, 388 (4th Cir. 2014)). Section 1983 claims “are best characterized as personal injury actions,” id. (quoting Wilson v. Garcia, 471 U.S. 261,277 (1985)), and North Carolina personal injury actions have a three-year statute of limitations. Id. (citing N.C. GEN. STAT. § 1-52(5); Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996); Nat'l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1161-62 & n.2 (4th Cir. 1991)). The limitations period generally begins to run when the plaintiff knows or has reason to know of the injury. Id. (citing Wallace, 549 U.S. at 391).

Polidi's North Carolina Constitution claim asserts that he was “deprived of due process rights,” and that these “deprivations were committed under color of North Carolina law.” Am. Compl. [DE-30] ¶¶ 136-39. Polidi does not cite to a specific section of the state Constitution, but his claim likely arises under Section 19, which prohibits seizures “but by the law of the land” and guarantees equal protection of the laws. N.C. GEN. STAT. Art. 1, § 19. The limitations period for civil state law claims, including those arising from violations of Section 19, is three years. See N.C. GEN. STAT. § 1-52; N.C. Sch. Bds. Ass'n. v. Moore, 585 S.E.2d418,438 (N.C. Ct. App. 2003) (“We conclude that the trial court correctly applied the three-year limitations period provided in N.C. GEN. STAT. § 1-52 (2001) for ‘an action ... [u]pon a liability created by statute' or ‘[a]gainst a public officer, for a trespass, under color of his office'” to an action seeking monetary payments under the North Carolina Constitution); Chisum v. Campagna, 855 S.E.2d 173,192 (N.C. Ct. App. 2021) (“the statute of limitations applicable to breach of fiduciary duty claims is three years”).

In support of their contention that the statute of limitations has expired, the State Defendants attached the declaration of Robert Weston, Deputy Counsel for the NCSB, to the instant motion. [DE-76]. In his declaration, Weston avers that “[a]s a result of [his] employment with the NCSB, [he is] well acquainted with the NCSB's document storage and retention systems, policies and practices and have access to the NCSB's publicly available files and records.” Id. at 2. Weston also attached a document located within NCSB's records to his declaration: a letter notifying Polidi that the grievance proceedings against Bannon were dismissed because “the evidence does not establish that the attorney's conduct violated the Rules of Professional Conduct.” Id. at 4. This letter was signed by Brown as then-Chairman of the NCSB Grievance Committee, dated October 21, 2020, and mailed to Polidi's PO Box. Id.

To refute Weston's declaration, Polidi attached several email messages to his response. Pl.'s Resp. Ex. 3 [DE-92-3], These email messages were sent between Polidi and Cloutier in October and November 2020, and include an email dated November 6, 2020, where Polidi mentioned that “[c]orrespondence of November 2, 2020 from A. Todd Brown, Sr. of the North Carolina State Bar... indicates that, if I have questions concerning the grievance against [Bannon], I may contact you,” and, “I would appreciate your response to the following question concerning correspondence of November 2nd.” Id. at 4. Polidi contends that these references indicate that the grievance proceedings against Bannon were not concluded until November 2,2020, and states that he “is attempting to obtain a copy of that cover letter from his storage, and will seek to obtain a copy of it immediately if discovery is permitted.” Pl.'s Resp. [DE-92] at 8. Polidi further argues that the grievance proceedings could not have concluded in October because in an email dated the day before the State Defendants' purported date of dismissal, Cloutier told Polidi that “[t]he grievance process does not allow for testimony before the Grievance Committee. If you wish the Grievance Committee to consider any information not already provided, you must submit it in writing.” Id.', Pl.'s Mot. Ex. 3 [DE-92-3] at 3. Polidi argues that the notice attached to Weston's declaration is not a public record and was not received until November 6, 2020, “and is strongly believed to have included therein correspondence dated November 2, 2020 particularly in view of the totality of the circumstances. It therefore could not have been, and was not, mailed prior to November 2, 2020.” Pl.'s Resp. [DE-92] at 8.

While a defendant's statute of limitations defense may be raised in a 12(b)(6) motion, it is only appropriate to do so when the defense clearly appears on the face of the complaint. Diop v. BMW of N Am., LLC, 511 F.Supp.3d 679, 684 (E.D. N.C. 2021). Here, Polidi alleges that the NCSB “informed the plaintiff that the grievance was dismissed, prior to its deliberation by the Grievance Committee,” Am. Compl. [DE-30] ¶ 120, and the parties' attached documents directly relate to that purported correspondence, [DE-76] at 4; Pl.'s Resp. Ex. 3 [DE-92-3]; see Balt. Scrap Corp. v. Exec. Risk Specialty Ins. Co., 388 F.Supp.3d 574, 588 (D. Md. 2019) (finding plaintiff s denial letter, while not attached to the complaint, could be properly referenced to determine onset of limitations period where insurer's denial of claims was referenced in complaint). However, it is not clearly apparent that the defense applies because the parties' attached documents do not conclusively determine when Poldi knew or had reason to know that the grievance complaint had been dismissed. See Harrell, 2023 WL 3292874 at *2. Accordingly, the statute of limitations does riot provide an alternative ground for dismissal at this time.

4. Poldi lacks standing to assert a claim for declaratory judgment against the State Defendants.

The State Defendants argue that the court should dismiss the twelfth cause of action because Polidi lacks standing under the DIA. Defs.' Mem. [DE-77] at 18-20. Polidi offers no argument to the contrary.

For a lawsuit to proceed in federal court, Article III of the Constitution requires a litigant to possess standing to sue. Ali v. Hogan, 26 F.4th 587, 595 (4th Cir. 2022) (citation omitted). Without standing, the court is left without subject matter jurisdiction. Id. at 595-96 (“Standing is an ‘irreducible constitutional minimum' that must be satisfied in all cases.” (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992))). “[S]tanding is not dispensed in gross; rather, plaintiffs must demonstrate standing for each claim that they press and for each form of relief that they seek.” TransUnion LLC v. Ramirez, 594 U.S. 413 (2021). To establish standing, a plaintiff must show that he suffered an injury in fact that is concrete, particularized, and actual or imminent (the “case-or-controversy requirement”); that the injury was likely caused by the defendant; and that the injury would likely be redressed by judicial relief. Id. at 2203 (citing Lujan, 504 U.S. at 560-61).

Here, the State Defendants argue that Polidi's DJA claim fails to satisfy the case-or-controversy requirement. Defs.' Mem. [DE-77] at 18-20. In support, they cite to Boyce v. N.C. State Bar, where the Court of Appeals of North Carolina affirmed that the plaintiff, an attorney who filed a grievance complaint with the NCSB, then subsequently filed a civil action asking the state court to declare that the NCSB had no right to ignore his grievance complaint, failed to allege an injury sufficient to confer standing. 814 S.E.2d 127,134 (N.C. Ct. App. 2018). The Boyce court explained its holding by stating that,

The State Bar disciplinary process is intended “to protect the public, the courts, and the legal profession.” N. C. State Bar v. Rogers, 596 S.E.2d 337, 343 (N.C. Ct. App. 2004). Under our State Bar's disciplinary procedures, the complainant has no control over when, how, or whether the State Bar pursues his grievance. After reporting the alleged attorney misconduct to the Bar, the complainant's interest in the case going forward is the same as all other members of the public-to see a state agency protect the public from attorney misconduct by pursuing discipline for unethical behavior. 27 N.C. Admin. Code 1B.0101 et seq.

Id. (cleaned up). The State Defendants argue that the same logic applies here, particularly because North Carolina's standing requirements are less rigorous than those imposed by Article III.⁶ Defs.' Mem. [DE-77] at 19.

6 North Carolina law does not require a plaintiff to establish an injury in fact to sue where a purely statutory or common law right is at issue. Comm, to Elect Dan Forest v. Emps. Pol. Action Comm., 853 S.E.2d 608, 728 (N.C. 2021). Plaintiffs are only required to allege a direct injury when they seek to invoke the judicial power to determine the constitutionality of a legislative or executive act. Id.

As the Boyce opinion highlights, “every jurisdiction that has ever confronted” whether complaining parties have standing to challenge state bar grievance processes or similar prosecutions in court has concluded that the plaintiffs have not alleged an injury sufficient to confer standing. 814 S.E.2d at 134 (citing Lewis v. Slack, 955 A.2d 620,625 (Conn. App. Ct. 2008); Cole v. Owens, 766 So.2d 287,288 (Fla. Dist. Ct. App. 2000); Scanlon v. State Bar of Ga., 443 S.E.2d 830, 831 (Ga. 1994); Akinaka v. Disciplinary Bd. of Haw. Sup. Ct., 979 P.2d 1077, 1084-86 (Haw. 1999); Woodard v. Ky. Bar Ass 'n, 156 S.W.3d 256, 257 (Ky. 2004); In re Request for an Investigation of an Att'y, 867 N.E.2d 323, 324-25 (Mass. 2007); Cotton v. Steele, 587 N.W.2d 693,699 (Neb. 1999)); see also Matter of Appointment of Indep. Counsel, 766 F.2d 70, 73 (2d Cir. 1985) (holding that victim of an alleged crime had no standing to seek court appointment of independent counsel where prosecutors had a conflict of interest). Most significantly, as mentioned above, the Fourth Circuit has held that the principle that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another," Leeke, 454 U.S. at 85-86 (quoting Linda R.S., 410 U.S. at 619), applies "with equal force to State Bar disciplinary proceedings," Ross, 493 Fed.Appx. at 406 (citing Doyle, 998 F.2d at 1568). Accordingly, Polidi lacks standing to assert a DJA claim.

5. The State Defendants are entitled to Eleventh Amendment immunity.

The State Defendants argue that Polidi's official capacity claims should be dismissed because they are entitled to Eleventh Amendment immunity. Defs.' Mem. [DE-77] at 20. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” U.S. Const, amend. XL; see Bd. of Trs. of the Univ, of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (“The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court.”). Eleventh Amendment immunity “extends beyond the literal text of the Eleventh Amendment to prevent a state from being sued by one of its own citizens without its consent.” McCarter v. Univ, of N.C. at Chapel Hill, No. l:20-CV-1050, 2021 WL 4482983, at *15 (M.D. N.C. Sept. 30, 2021) (quoting Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 329 (4th Cir. 2001)). “Under the Eleventh Amendment,. . . neither a State nor its officials in their official capacity may be sued for damages in federal court without their consent.” Gamache v. Cavanaugh, 82 F.3d 410, 1996 WL 174623, at *1 (4th Cir. 1996); see also Gray v. Laws, 51 F.3d 426, 430 (4th Cir. 1995). Such immunity “extends as well to state agencies and other government entities properly characterized as ‘arms[s] of the State. Gray, 51 F.3d at 430 (first quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); then citing P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144(1993)).

Polidi responds to the State Defendants' claims with the same argument that he raised with respect to the State Defendants' quasi-judicial prosecutorial immunity claims. Pl.'s Resp. [DE-92] at 9. Namely, he asserts that “[t]here is no absolute immunity, prosecutorial or otherwise, for a failure to perform administrative duties” and that “much of the actions-and inactions- complained of were in connection with the investigation of the ethics complaint against Ms. Bannon and are not entitled to immunity, particularly to the extent of any involvement by independent investigators or the like, or other ‘John Doe' parties whose identities are not currently known to the plaintiff.” Id. Notably, Polidi cites no case law in support of these assertions, and to the extent that he argues that Penate applies, that contention fails because the opinion makes no reference to the Eleventh Amendment. 928 F.3d at 128-41.

The court should reject Polidi's argument because the Eleventh Amendment immunity doctrine is clear: neither a state nor its officials in their official capacity may be sued for damages in federal court without their consent. Gamache, 82 F.3d 410, 1996 WL 174623, at *1. Here, the State Defendants are named in their official capacities; the NCSB is a state agency, Sutton, 2014 WL 4546017, at *6; Polidi is suing for monetary damages; and neither the State of North Carolina nor the State Defendants have consented to being sued in federal court. Gamache, 82 F.3d 410, 1996 WL 174623, at *1. Thus, the State Defendants are entitled to Eleventh Amendment . immunity, and the court should dismiss the official capacity claims against them with prejudice.

6. Polidi's individual capacity claims against the State Defendants are not subject to dismissal on the alternative ground of insufficient service of process.

The State Defendants argue that the court should dismiss Polidi's individual capacity claims because he has failed to prove sufficient service of process. Defs.' Mem. [DE-77] at 2225. Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied. Omni Cap. Int'l, Ltd. V. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). Service of summons is “the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.” Id. (quoting Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444-45 (1946)).

Service of process in a federal action is covered generally by Fed.R.Civ.P. 4. Rule 4 outlines the form of the summons and stipulates that a valid summons must be served upon the 1 defendant along with a copy of the complaint to effectuate service unless the defendant chooses to waive the service requirements. Fed.R.Civ.P. 4(c)(1)-(d). A natural person can be validly served through four different methods: delivering a copy of the summons and complaint to the individual personally; leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; delivering a copy of each to an agent authorized by appointment or by law to receive service of process; or following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made. Id. at 4(e).

As relevant here, the North Carolina Rules of Civil Procedure provide that a natural person may be served, inter alia,

c. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.

d. By depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the party to be served, delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, ‘delivery receipt' includes an electronic or facsimile receipt.

e. By mailing a copy of the summons and of the complaint by signature confirmation as provided by the United States Postal Service, addressed to the party to be served, and delivering to the addressee.

N.C. GEN. STAT. § 1A-1, R. 4(j)(1)(c)-(e) (emphasis added).

In the instant case, the State Defendants argue that Polidi has failed to prove proper service because he has not shown that the summons and amended complaint were “delivered to the addressee,” as required by N.C. R. Civ. P4(j)(1)(c)-(e). Defs.' Mem. [DE-77] at 24. In support, the State Defendants explain that the affidavit of service filed for Brown shows a signature that is “clearly not his own,” and that the address reflected on the document as his residence address is not, in fact, his residence address; and that the affidavit of service filed for Cloutier does not provide any signature showing that she received Polidi's mailing at her Maine residence address. Id. at 24-25. The State Defendants also filed declarations attesting that Cloutier never signed for the mailing that was purportedly delivered to her house in Maine, [DE-75]; and that Brown never received Polidi's summons or amended complaint at his residence as represented in the affidavit of service, never received the documents via overnight mail service, never communicated with anyone associated with a mail carrier regarding signing any document to signify service of process, and never actually signed any document accepting service of process from Polidi, [DE-74].

Polidi refers the court to the affidavit of service filed on February 1, 2024. [DE-56]. Polidi argues that Exhibit 2, [DE-56-2], a proof-of-delivery document from FedEx, clearly states that the package sent to Cloutier was signed for by “M. Cloutier,” and that Exhibit 4, [DE-56-4], a proof-of-delivery notice from the United States Postal Service (“USPS”), indicates that the parcel sent to Brown was delivered and signed for. Pl.'s Resp. [DE-92] at 7. Additionally, Polidi attached tracking documents from FedEx and USPS to his response. [DE-92-2]. Polidi contends that “there are active Alias and Pluries summonses naming the State Defendants in their individual and official capacities in Wake County Superior Court.... [and i]f there is any issue involving service, service could still be effectuated in the State action,” but ultimately asserts that there are issues of fact that exist with respect to service of process that should not be decided at this stage of the litigation. Pl.'s Resp. [DE-92] at 7. Polidi asks for leave to effect service rather than outright dismissal of the individual capacity claims. Id. at 11.

As previously explained, since the sufficiency of process and service of process concern the court's jurisdiction, consideration of materials outside the pleadings, such as affidavits, is appropriate. Freeman v. HKA Enters. of S.C., LLC, 2022 WL 3705020 at *3, n.7 (E.D. N.C. Aug. 26, 2022) (citing Dimet Proprietary, Ltd. v. Indus. Metal Protectives, 109 F.Supp. 472, 475 (D. Del. 1952)). This rule is particularly apt when a defendant challenges whether a plaintiff effected valid service by certified mail, as a plaintiff may prove valid service by either 1) filing an affidavit averring that a copy of the summons and complaint was sent by registered or certified mail, return receipt requested, and that the addressee received the copy; or 2) attaching the return receipt (or other satisfactory evidence of delivery). Adams v. Haynes, No. 5:10-CT-3052, 2012 WL 2367436, at *3 (E.D. N.C. June 21, 2012) (citing N.C. GEN. STAT. § 1-75.10(a)(4); Granville Med. Ctr. v. Tipton, 586 S.E.2d 791, 796 ( N.C. Ct. App. 2003); N.C. GEN. STAT. § 1A-1, R. 402)(2)).

Relatedly, under North Carolina law, showing “merely that the registered or certified mail [was] delivered to the address of the party to be served and that a person of reasonable age and discretion receive[d] the mail and sign[ed] the return receipt on behalf of the addressee .... raises a rebuttable presumption of valid service.” Id. (quoting Lewis Clarke Assocs. v. Tobler, 232 S.E.2d 458, 459 (N.C. Ct. App. 1977); and citing Granville Med. Ctr., 586 S.E.2d at 796; In re Williams, 563 S.E.2d 202, 206 (N.C. Ct. App. 2002)). This presumption arises even if the attached return receipt was signed by a person other than the addressee. Id. (citing N.C. GEN. STAT. § 1 A-l, Rule 4(j2)(2); In re Williams, 563 S.E.2d at 206; Fender v. Deaton, 503 S.E.2d 707, 710 (N.C. Ct. App. 1998); Lewis Clarke Assocs., 232 S.E.2d at 459). Critically, while a defendant may rebut the presumption of valid service, they may only do so with “affidavits of more than one person showing unequivocally that proper service was not made upon the person of the defendant.” Id. (quoting Grimsley v. Nelson, 467 S.E.2d 92, 94 (N.C. 1996)); see Saliby v. Conners, 614 S.E.2d 416, 418 (N.C. Ct. App. 2005); Brown v. King, 601 S.E.2d 296, 298 ( N.C. Ct. App. 2004). The affidavits must show that (1) the person who signed the return receipt was not the defendant's authorized agent and (2) the delivery-failed to notify defendant of the lawsuit. Adams, 2012 WL 2367436, at *3 (citing Grimsley, 467 S.E.2d at 94; Dougherty Equip. Co., Inc. v. M.C. Precast Concrete, Inc., 711 S.E.2d 505, 508 (N.C. Ct. App. 2011); Osman v. Reese, No. COA09-950,2010 WL 1315595, at *3 (N.C. Ct. App. Apr. 6, 2010); Granville Med. Ctr., 586 S.E.2d at 797-98; In re Williams, 563 S.E.2d at 206; Fender, 503 S.E.2d at 710-11; Morrison v. Holding, No. 7:11-CV-168-BO, 2012 WL 1132787, at *4-5 (E.D. N.C. Apr. 4, 2012)).

Here, Polidi has filed an affidavit averring that multiple copies of the summons and complaint were sent by registered or certified mail, return receipt requested, and that Cloutier and Brown received the documents, as well as several proof of delivery notices. [DE-56]; [DE-92-2], This is sufficient to raise the presumption of valid service, see Adams, 2012 WL 2367436, at *3, which the State Defendants have attempted to rebut by filing individual declarations stating that they never received the process as indicated in Polidi's affidavit, [DE-74]; [DE-75], However, rebutting the presumption of valid service requires a defendant to present “clear and unequivocal evidence that consists of more than a single contradictory affidavit or the contradictory testimony of one witness f and the State Defendants have not met this burden. Gibby v. Lindsey, 560 S.E.2d 589,592 (N.C. Ct. App. 2002) (emphasis added). Accordingly, insufficient service of process does not provide an alternative ground for dismissal.

ii. The Motions for an Extension of Time

A. The State Defendants' Motion for an Extension of Time

The State Defendants request that the court extend their deadline to file a response to Polidi's motion to set aside the court order dated February 16, 2024, [DE-69]. [DE-80]. The State Defendants argue that they were not parties to the instant case at the time the court entered its February 16 order denying Polidi's request to stay all proceedings and that they would be unfairly prejudiced if the “if the Court went forward with briefing on the plaintiffs pending Motion and decided said Motion adversely to defendants Cloutier and Brown and, thereafter, granted defendants Cloutier's and Brown's Motion to Dismiss the plaintiffs Amended Complaint against . r them in its entirety.” Id. at 3-4. According to the State Defendants, the only way to avoid wasting the court's time and resources is to allow them to file their written response to Polidi's motion (if a response is warranted) within twenty-one days after the court rules on their motion to dismiss. Id. at 4.

The Federal Defendants take no position with respect to the motion. Id. Polidi indicated to the State Defendants that he opposed their request for an extension, id.', [DE-85-1], and filed a “notice of intent to file response to motion,” [DE-85]. However, Polidi never filed said response, and the time to do so has expired. For good cause shown, the motion is allowed, and the State Defendants shall file their response to Polidi's motion to set aside the February 16 order, if necessary, within twenty-one days of the court's ruling on the motion to dismiss.

B. Polidi's Motion for an Extension of Time

Polidi seeks a court order extending his time to respond to the State Defendants' amended complaint by six days, to May 6, 2024. [DE-91]. The court previously extended Polidi's response deadline to April 30, 2024, [DE-89], and Polidi argues that a final extension is warranted because of personal travel, Pl.'s Mot. [DE-91], at 2-3. The Federal and State Defendants do not oppose Polidi's request, though the State Defendants purportedly informed him that their position is contingent upon the instant motion being the last request for an extension of time to respond to their motion to dismiss. Id. at 3. Notably, Polidi responded to the State Defendants' motion to dismiss on May 6, 2024, as promised, thus no further extensions will be necessary. Accordingly, the motion is denied as moot.

III. Conclusion

For the reasons stated herein, it is recommended that the Federal Defendants' motion to dismiss, [DE-32], be allowed and the State Defendants' motion to dismiss, [DE-73], be allowed. Polidi's motion for an extension of time, [DE-91], is denied as moot, and the State Defendants' motion for an extension of time, [DE-80], is allowed.

IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the parties. You shall have until Friday, July 12, 2024, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 63 6(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.

If you do not file written objections to the Memorandum and Recommendation (M&R) by the foregoing deadline, you will be giving up the right to review of the M&R by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the M&R without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the M&R. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).