North Carolina Acupuncture Licensing Board v. North Carolina Board of Physical Therapy Examiners, 062416 NCSUP, 15 CVS 12012

Docket Nº:15 CVS 12012
Opinion Judge:Louis A. Bledsoe, III Special Superior Court Judge.
Party Name:NORTH CAROLINA ACUPUNCTURE LICENSING BOARD, Plaintiff, v. NORTH CAROLINA BOARD OF PHYSICAL THERAPY EXAMINERS, ELIZABETH HENRY, AART SCHULENKLOPPER, CORNERSTONE PHYSICAL THERAPY, INC., and JESSAN HAGER, Defendants.
Attorney:Everett Gaskins Hancock, LLP, by E.D. Gaskins, Jr. and James M. Hash, and Stevens Martin Vaughn & Tadych, PLLC, by Michael J. Tadych, for Plaintiff North Carolina Acupuncture Licensing Board. Ellis & Winters LLP, by Matthew W. Sawchak, Troy D. Shelton, and Stephen Daniel Feldman, for Defendant No...
Case Date:June 24, 2016
Court:Superior Courts of Law and Equity of North Carolina
 
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2016 NCBC 47

NORTH CAROLINA ACUPUNCTURE LICENSING BOARD, Plaintiff,

v.

NORTH CAROLINA BOARD OF PHYSICAL THERAPY EXAMINERS, ELIZABETH HENRY, AART SCHULENKLOPPER, CORNERSTONE PHYSICAL THERAPY, INC., and JESSAN HAGER, Defendants.

No. 15 CVS 12012

Superior Court of North Carolina, Wake

June 24, 2016

Everett Gaskins Hancock, LLP, by E.D. Gaskins, Jr. and James M. Hash, and Stevens Martin Vaughn & Tadych, PLLC, by Michael J. Tadych, for Plaintiff North Carolina Acupuncture Licensing Board.

Ellis & Winters LLP, by Matthew W. Sawchak, Troy D. Shelton, and Stephen Daniel Feldman, for Defendant North Carolina Board of Physical Therapy Examiners.

Poyner Spruill LLP, by Andrew H. Erteschik, Caroline P. Mackie, and John Michael Durnovich, for Defendants Elizabeth Henry, Aart Schulenklopper, Cornerstone Physical Therapy, Inc., and Jessan Hager.

ORDER & OPINION ON PLAINTIFF'S RULE 59(e) AND RULE 60(b) MOTION

Louis A. Bledsoe, III Special Superior Court Judge.

{1} THIS MATTER is before the Court upon Plaintiff North Carolina Acupuncture Licensing Board's ("Plaintiff" or "Acupuncture Board") Rule 59(e) Motion to Alter or Amend Order and Rule 60(b) Motion for Relief from Order (the "Motion") in the above-captioned case. For the reasons discussed below, the Court DENIES the Motion.

I.

BACKGROUND

{2} The Acupuncture Board's Motion moves the Court to alter, amend, or grant relief from the Court's Order and Opinion on Defendants' Motions to Dismiss, reported at North Carolina Acupuncture Licensing Board. v. North Carolina Board of Physical Therapy Examiners, 2016 NCBC LEXIS 33 ( N.C. Super. Ct. Apr. 26, 2016) (hereinafter, the "April 26 Opinion"). In its April 26 Opinion, the Court dismissed the Acupuncture Board's Amended Complaint by granting two motions to dismiss (the "Motions to Dismiss"), one brought by Defendant North Carolina Board of Physical Therapy Examiners (the "Physical Therapy Board") and the other brought by Defendants Elizabeth Henry, Aart Schulenklopper, Cornerstone Physical Therapy, Inc., and Jessan Hager (collectively, the "Private Defendants").

{3} The Acupuncture Board's Amended Complaint sought a declaratory judgment from the Court that the practice known as "dry needling" is a form of acupuncture over which the Acupuncture Board has exclusive licensing powers. The Acupuncture Board further sought a permanent injunction barring the Physical Therapy Board and the Private Defendants from regulating and practicing dry needling, respectively. April 26 Opinion, at *2. The Court dismissed the Amended Complaint pursuant to North Carolina Rules of Civil Procedure 12(b)(1) and 12(b)(2), concluding that this Court lacked subject matter and personal jurisdiction. April 26 Opinion at *27.

{4} In particular, the Court determined that it lacked subject matter jurisdiction because the Acupuncture Board had failed to exhaust its administrative remedies under North Carolina's Administrative Procedure Act, N.C. Gen. Stat. § 150B-1, et seq., which is a matter of standing. April 26 Opinion at *10 (citing Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C. App. 217, 220, 517 S.E.2d 406, 410 (1999)). The Physical Therapy Board alleged in its Motion to...

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