Byrd v. Hopson, CIV. 1:02CV212.
| Decision Date | 23 May 2003 |
| Docket Number | No. CIV. 1:02CV212.,CIV. 1:02CV212. |
| Citation | 265 F.Supp.2d 594 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | Betty R. BYRD, Plaintiff, v. Jack HOPSON; Barbara Hopson; Cynthia Hopson; Holger C. Nelson; Kenneth R. Fox, in his individual capacity and as Sheriff of Mitchell County; and Donald Street, in his individual capacity and as Deputy Sheriff of Mitchell County, Defendants. |
William Isaac Diggs, Christopher S. Danielsen, Stuart Axelrod, Diggs Danielsen, LLC, Myrtle Beach, SC, for plaintiff.
Andrew J. Santaniello, Cogburn, Goosmann, Brazil & Rose, P.A., Asheville, NC, Dennis L. Howell, Burnsville, NC, C. Frank Goldsmith, Jr., Goldsmith & Goldsmith, Marion, NC, Douglas R. Vreeland, Womble, Carlyle, Sandridge and Rice, Winston-Salem, NC, Scott D. MacLatchie, Womble, Carlyle, Sandridge & Rice, Charlotte, NC, for defendants.
THIS MATTER is before the Court on the Plaintiffs motion to continue the trial and to deviate from the scheduling order.
By Memorandum and Order filed March 7, 2003, the undersigned required the Defendants to file briefs in support of their motions to dismiss within 15 days of entry of the Order, i.e., on or before March 24, 2003. The Memorandum and Order also provided that the Plaintiff should file responses to those briefs on or before 15 days thereafter, i.e., April 8, 2003. The Pretrial Order and Case Management Plan entered on November 2, 2002, imposed a discovery deadline of March 21, 2003, a deadline which was extended as to depositions only by the March 7, 2003, Memorandum and Order. Motions for summary judgment were to be filed no later than April 4, 2003. The case was set for trial for the June 2003 calendar, however, that deadline was subsequently amended by the Court and reset for the July 2003 calendar. The Plaintiffs motion to amend these deadlines was filed on April 17, 2003.
The following matters are currently pending:
1. Defendant Nelson's motion to dismiss, to which response was filed by the Plaintiff on April 7, 2003;
2. Defendant Cynthia Hopson's motion to dismiss, to which response was filed on April 7, 2003;
3. The motion of Defendants Fox and Street, filed April 4, 2003, to strike the complaint or, in the alternative, to compel responses to discovery, to which no response has been filed;
4. The motion for summary judgment of Defendants' Fox and Street, filed April 4, 2003, to which a response was filed on April 23, 2003;
5. Defendant Cynthia Hopson's motions for sanctions and to compel discovery, filed April 4, 2003, to which no responses have been filed 6. Defendant Cynthia Hopson's motion for summary judgment, filed April 4, 2003, to which response was filed on April 23, 2003;
7. Defendant Nelson's motion for summary judgment, filed April 4, 2003, to which a response was filed on April 23, 2003; and
8. The motion for summary judgment of Defendants Jack and Barbara Hopson, filed April 4, 2003, to which a response was filed on April 7, 2003.
Before ruling on the motion for an extension of time, the Court will address those matters which are ripe for disposition.
Plaintiffs complaint bases federal jurisdiction on causes of action pursuant to 42 U.S.C. §§ 1983, 1985, and 18 U.S.C. § 1964. She also alleges state law claims. According to the allegations of the complaint, in early 2000, Defendant Cynthia Hopson (Cynthia) had an affair with the Plaintiffs husband, not out of an emotional attachment to him but in order to gain access to the Plaintiffs wealth. Complaint, at 3. In furtherance of that plan, Cynthia hired Defendant Nelson to kill the Plaintiff. Id. On May 1, 2000, Plaintiff and her husband met surveyors at Elk Wallow Mountain in Mitchell County, North Carolina. Plaintiff, who left the meeting alone in her car, was allegedly beaten by Nelson and left for dead. Id., at 4. Plaintiff alleges that Defendant Fox, the Mitchell County Sheriff, refused to investigate this and later incidents because the Plaintiff stopped contributing to his political campaign. Id.
Defendant Street, a Mitchell County Deputy Sheriff, is alleged to have "also" had a "special relationship" with Cynthia. Id., at 5. The obvious innuendo is that Cynthia was involved with both the Plaintiffs husband and the Deputy Sheriff at the same time. Street is alleged to have assaulted the Plaintiff during a hearing conducted in state court. Id, at 7-8. Defendants have clarified in their answers that Plaintiff sued Cynthia in state court for alienation of affection. During a July 2002 hearing in connection with that action, the trial court received information that the Plaintiff had a weapon on her person and ordered that everyone in the courtroom should be searched. Id Plaintiff alleges that during the search of her person by Deputy Street, he used such excessive force that he injured her leg which, as a result, "may require [ ] amputation ...." Id. After leaving the courthouse, Plaintiff had dinner with her attorney. Plaintiffs Objections to Magistrate's Recommendation, filed January 16, 2003, at 6. At approximately 9:00 PM that evening, she received treatment at Spruce Pine Community Hospital for a right knee injury which she reported occurred when she "ran into [a] door ...." Id, at Exhibit G, Triage/Nursing Assessment, Spruce Pine Community Hospital, dated July 24, 2002.
The alienation of affection action was ultimately dismissed with prejudice and Plaintiff was ordered to pay Cynthia's attorneys' fees. The North Carolina Supreme Court refused to review the decision. Byrd v. Hopson, ___ N.C. ___, 570 S.E.2d 499 (2002).
Subsequently, Cynthia filed for bankruptcy protection and was required to attend a hearing in January 2002 of the United States Bankruptcy Court at the United States Courthouse in Asheville, North Carolina. Because of the alienation of affection action, Cynthia had listed Plaintiff as a creditor and, as a result, Plaintiff attended the hearing as well. Complaint, at 6. Plaintiff alleges that Defendant Street improperly transported Cynthia to the hearing in a Sheriffs patrol car and escorted her to and from the hearing. Id Plaintiff alleges that Sheriff Fox knew that Street was providing "special favors" to Cynthia, but did nothing about the situation. Id. In addition, Sheriff Fox failed to investigate numerous break-ins, vandalism and harassing phone, calls occurring at the Plaintiffs home. Id
As for the Plaintiffs civil "RICO" 1 action, Cynthia works at her parents' business, Hopson's Store. According to the complaint, the Hopson's operate illegal gambling and drug trafficking businesses from the store. Id, at 11. The proceeds from these illegal ventures were used to pay Nelson to kill the Plaintiff and to pay Fox and Street to deprive Plaintiff of her constitutional rights. Id, at 12.
In addition to the "federal" claims, Plaintiff alleges common law conspiracy because Cynthia's parents watched the store while Cynthia and Plaintiffs husband went upstairs in the store to "engage in adulterous acts ...." Id, at 13. An allegation of assault and battery is also made against Cynthia and Nelson as well as a claim for intentional infliction of emotional distress against Cynthia. Id, at 16-17.
Defendant Nelson has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the two claims brought against him, common law conspiracy and assault and battery, because they are time-barred.
In ruling on a motion pursuant to Rule 12(b)(6) to dismiss for failure to state a claim, the court must Flood v. New Hanover County, 125 F.3d 249, 251 (4th Cir.1997); Shepard's, Motions in Federal Court, § 5.124, at 367 (2d ed.1991). Conclusory allegations are examined in light of the factual claims. Id. Nonetheless, dismissal is appropriate if "`it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be provided in support of [her] claim.'" Mylan Lab., Inc. v. Matkari, 7 F.3d 1130, 1134 n. 4 (4th Cir.1993) (quoting Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (1989)) (other citations omitted).
Although a motion pursuant to Rule 12(b)(6) invites an inquiry into the legal sufficiency of the complaint, not an analysis of potential defenses to the claims set forth therein, dismissal nevertheless is appropriate when the face of the complaint clearly reveals the existence of a meritorious affirmative defense. "A complaint showing that the statute of limitations has run on the claim is the most common situation in which the affirmative defense appears on the face of the pleading[.]"
Brooks v. City of Winston-Salem, N.C., 85 F.3d 178, 181 (4th Cir.1996) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 1357, at 352 (1990)). This Court has not been loathe to dismiss claims which are timebarred on the face of the complaint. See, e.g., Plimpton v. Cooper, 141 F.Supp.2d 573 (W.D.N.C.), aff'd 21 Fed.Appx. 159 (4th Cir.2001); Morley v. N.C. Dep't HHS/Broughton Hosp., 171 F.Supp.2d 585 (W.D.N.C.2001).
Prior to October 1, 2001, the North Carolina statute of limitations for bringing an action alleging assault and/or battery was one year from the time of the accrual of the claim. N.C. Gen.Stat. § 1-54(3) (). The statute of limitations on an assault in North Carolina begins to run on the date of the assault....
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