The opinion of the court was delivered by: Joyner, District Judge.
Presently before this Court is the Motion to Dismiss of the
Defendant, Pennsylvania Department of Transportation
("PennDOT"). The pro se Plaintiff, John W. Petsinger
("Plaintiff"), filed his complaint on August 21, 2001.
PennDOT seeks to dismiss Plaintiffs complaint against it under
Fed.R.Civ.P. 12(b)(1), 12(b)(5), and 12(b)(6). For the following
reasons, Plaintiffs complaint against PennDOT is dismissed.
Under the Driver's License Compact, 75 Pa.C.S.A. § 1581,
Pennsylvania gives the same effect to motor vehicle convictions
obtained in another state as if the conviction had occurred in
Pennsylvania. Delaware has adopted this statute, (21 Del.C. §
8101), and, therefore, exchanges information concerning motor
vehicle convictions with Pennsylvania.
On May 22 and June 19, 2001, Plaintiff wrote to Rebecca L.
Bickley, Director of the Bureau of Driver Licensing for PennDOT,
and Harold Cramer in the Office of Chief Counsel for PennDOT,
respectively, requesting that PennDOT postpone the suspension of
Plaintiffs driver's license. However, PennDOT suspended
Plaintiffs driver's license on June 28, 2001, based upon
Plaintiffs conviction for driving under the influence in
Plaintiff claims in his complaint that PennDOT suspended his
driver's license without notice to him based upon a false
conviction for driving under the influence in Delaware.
When deciding a 12(b)(1) motion, "dismissal for lack of
jurisdiction is not appropriate merely because the legal theory
alleged is probably false, but only because the right claimed is
`so insubstantial, implausible, foreclosed by prior decisions of
the Supreme Court, or otherwise completely devoid of merit as
not to involve a federal controversy.'" Kulick v. Pocono Downs
Racing Ass'n, 816 F.2d 895, 899 (3d Cir. 1987) (quoting Oneida
Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct.
772, 776, 39 L.Ed.2d 73, (1974)). Consequently, "[t]he threshold
to withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(1) is
thus lower than that required to withstand a Rule 12(b)(6)
motion." Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir.
A motion to dismiss under Fed.R.Civ.P. 12(b)(5) for
insufficiency of service or process contends that the Defendant
did not receive sufficient notice of the action as set forth in
Rule 4. "[T]he party making the service has the burden of
demonstrating its validity when an objection to service is
made." Reed v. Weeks Marine, Inc., 166 F. Supp.2d 1052 (E.D.Pa.
2001). See also Grand Entm't Group, Ltd. v. Star Media Sales,
Inc., 988 F.2d 476, 488-89 (3d Cir. 1993); Addanki v. Def.
Logistics Agency Def. Personnel Support Ctr., No. 95-CV-696,
1996 WL 635590 at *1 (E.D.Pa. 1996).
A motion to dismiss based upon Fed.R.Civ.P. 12(b)(6) may only
be granted where the allegations fail to state any claim upon
which relief can be granted. See Morse v. Lower Merion Sch.
Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court must view all
facts, and reasonable inferences drawn therefrom, in the light
most favorable to the non-movant. Fed.R.Civ.P. 12(b)(6); see
also Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d
Cir. 1990). However, the Court will construe a pro se
Plaintiffs complaint more liberally and hold it to a less
stringent standard than a pleading drafted by an attorney. ...