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Kent v. North Carolina Dep't of Revenue


June 10, 2010


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


C. Lynn Kent, proceeding pro se, brings this action against the North Carolina Department of Revenue ("Department"). Kent charges the Department with unlawfully garnishing his wages based on his failure to pay state taxes. He seeks injunctive relief, a declaratory judgment, and damages. Asserting that this Court lacks subject matter jurisdiction over this action, the Department moves to dismiss this case pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Upon consideration of the Department's motion [#4], the opposition thereto, and the record of this case, the Court concludes that the motion should be granted.


Kent, a resident of Sanford, North Carolina, filed this action on December 22, 2009. His complaint describes at length his objections to the Department's garnishment of his wages for his failure to pay taxes.*fn1 For example, he argues that "[t]he Judicial Due process provisions found in [the] US Constitution in the Fifth, Seventh and Fourteenth Amendment and Article Three have been violated." Compl. ¶ 31. He also alleges that the Department is violating North Carolina state law because the state income tax statute applies only to corporations, Compl. ¶ 17, because "there is no authority under common law for enforcement of the North Carolina Tax Code," Compl. ¶ 12, and because the garnishment was not the result of a jury trial, Compl. ¶ 14.

Kent seeks a declaration that the Department has been unlawfully garnishing his wages, an injunction to prevent the Department from continuing to do so, and damages for wages garnished in the amount of $15,000.*fn2


Federal courts are courts of limited jurisdiction and "[i]t is to be presumed that a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (internal citation omitted). The party asserting jurisdiction bears the burden of establishing the contrary, McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182 (1936); Rempfer v. Sharfstein, 583 F.3d 860, 868--69 (D.C. Cir. 2009).

The Department argues that this Court lacks subject matter jurisdiction over this action because the Eleventh Amendment bars Kent from suing the State of North Carolina.*fn3 The Department asserts further that Kent has made no showing that North Carolina or the Department consented to suit or waived its immunity. The Department is correct.*fn4

This suit is the very type barred by the Eleventh Amendment, which grants a state immunity from suit in federal court by its own citizens. U.S. CONST. amend. XI; Hans v. Louisiana, 134 U.S. 1, 21 (1890).*fn5 Although this immunity is not absolute, the Supreme Court has "made clear that the Constitution does not provide for federal jurisdiction over suits against non-consenting States." Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000) (internal citations omitted). There are only two ways in which an individual may sue a state. Coll. Sav. Bank v. Fla. Prepaid Post-secondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). First, Congress may authorize such suits by abrogating immunity through statute, and second, a state may waive immunity by consenting to be sued. Id. Kent has made no allegation, and the Court is not aware of any authority to indicate, either that Congress abrogated North Carolina's sovereign immunity or that North Carolina waived it with regard to suits of this nature.*fn6

In opposition to the Department's motion to dismiss, Kent primarily argues that this Court should have jurisdiction because the state court "option is out of reach financially of all but the extremely wealthy, since the alleged tax has to be paid first," and that "[a] civil action in state court is a guaranteed victory for [North Carolina]." Pl.'s Opp'n to Defs.' Mot. to Dismiss ("Pl.'s Opp'n") at 5.*fn7

The Court finds this argument unpersuasive. Kent's concerns of bias in the state courts do not fall under any recognized exception to "the right of a State to reserve for its courts the primary consideration and decision of its own tax litigation because of the direct impact of such litigation upon its finances." Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 577 (1946); see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (explaining that absent consent, a suit in federal court against a state or one of its agencies "is proscribed by the Eleventh Amendment").

Because Kent's suit is barred by sovereign immunity, this case must be dismissed.


For the foregoing reasons, the Court concludes that the Department's motion to dismiss [#4] must be granted. An appropriate order accompanies this memorandum opinion.

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