Cole v. Montgomery

• Docket Number: 1:22CV734
• Decision Date: 08 August 2023
• Parties: CAROLYN COLE, Plaintiff, v. GERALD V. MONTGOMERY and DOROTHY J. MCMICHEN, ESQ., Defendants.
• Court: U.S. District Court — Middle District of North Carolina

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CAROLYN COLE, Plaintiff, v. GERALD V. MONTGOMERY and DOROTHY J. MCMICHEN, ESQ., Defendants.

No. 1:22CV734

United States District Court, M.D. North Carolina

August 8, 2023

MEMORANDUM OPINION AND ORDER

Loretta C. Biggs United States District Judge

Pro se Plaintiff Carolyn Cole brings this action alleging that her former husband, Defendant Gerald Montgomery, and his divorce lawyer, Defendant Dorothy McMichen, acted unlawfully during a sixteen-year divorce proceeding in Florida Family Court. (See generally ECF No. 1.) Before the Court is Defendant's Motion to Dismiss the Complaint made pursuant to Rules 9(b), 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 8.) For the following reasons, the Court will grant Defendant's motion.

I. BACKGROUND

According to the Complaint, Plaintiff Cole initiated divorce proceedings against Defendant Montgomery in Florida in 2006.^[1] (ECF No. 1 ¶ 1.) A Florida court granted a divorce in 2009, however, under a bifurcated process, the court retained jurisdiction to oversee division of marital property. (Id. ¶¶ 1, 18.) As of the September 2022 filing of the Complaint in this case, the division of assets had not yet been completed in Florida. (Id. ¶ 1.)

Plaintiff alleges here that over the past decade and a half that the divorce proceeding has been pending in Florida, the Defendants Montgomery and McMichen worked together to hide and squander assets that ought to be subject to equitable division in Florida. (See generally id.) The Complaint sets out two strands of alleged conduct through which Plaintiff alleges the hiding and squandering of assets occurred. First, Plaintiff alleges that there were improper sales of her real property in North Carolina and/or that her real property in North Carolina was used to commit various frauds including mortgage fraud.^[2] (Id. ¶ 6.) Second, Plaintiff alleges that Defendants then made false representations to the Florida court about the disposition of the real property in North Carolina.^[3] (See, e.g., id. ¶ 18.) The Court notes that the Complaint also alludes to events in South Carolina involving an ethics and/or election issue, (id. ¶ 68), however, the Court has been unable to determine what the connection may be between the ethics and/or election issue in South Carolina and the claims asserted in the Complaint.

Plaintiff's Complaint lists seventeen^[4] causes of action denominated as follows:

1. Violation of False Identification of Crime Control Act of 1982, 18 U.S.C. §§ 1028, 1738 2. Fraud

3. Breach of Contract Accompanied by Fraudulent Acts

4. Defamation of Credit

5. Slander of Title

6. Trespass to Try Title

7. Unfair Trade Practices under North Carolina, South Carolina, and Florida law

8. Violation of Federal Trade Commission Act, 15 U.S.C. 45 § 5

9. Unfair Debt Collection Practices, 15 U.S.C. § 45

10. Violation of the First Amendment, 42 U.S.C. § 1983

11. Violation of Fourth Amendment Due Process, 42 U.S.C. § 1983

12. Deprivation of Property, 42 U.S.C. § 1983 13. Conspiracy

14. Obstruction of Justice, 42 U.S.C. § 1985

15. Depriving Person of Rights, 42 U.S.C. § 1985

16. Deprivation of Rights, 42 U.S.C. § 1986

17. Abuse of Process, Malicious Prosecution, 42 U.S.C. § 1983

(Id. ¶¶ 28-85.)

Based on these claims, Plaintiff seeks damages, injunctive relief, attorney's fees, and for the Florida divorce action to be removed to this Court. (Id. ¶¶ 22, 95.)

Defendants argue that all of Plaintiff's claims should be dismissed pursuant to Rule 12(b)(1) because this Court lacks subject matter jurisdiction; pursuant to Rule 12(b)(2) because this Court lacks personal jurisdiction; pursuant to Rule 12(b)(6) because Plaintiff has failed to state any claims upon which relief can be granted; and pursuant to Rule 9(b) because, to the extent Plaintiff alleges fraud, the Complaint does not state the circumstances of the fraud with sufficient particularity. (ECF No. 8 at 1-2.)

II. STANDARD OF REVIEW

A. Rule 12(b)(1)

Under Rule 12(b)(1), a party may seek dismissal based on a court's “lack of subjectmatter jurisdiction.” Fed.R.Civ.P. 12(b)(1). A motion under Rule 12(b)(1) raises the question of “whether [the claimant] has a right to be in the district court at all and whether the court has the power to hear and dispose of [the] claim.” Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). A defendant may present a motion to dismiss for lack of subject matter jurisdiction either by contending that the complaint does not sufficiently allege jurisdiction, or by contending that the allegations in the complaint are not true. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Unless a defendant pursues the latter method and attacks the truth of the allegations, a court takes them as true and “in effect, . . . afford[s] the same procedural protection as [the plaintiff] would receive under a Rule 12(b)(6) consideration.” Id. A court should grant a motion under Rule 12(b)(1) “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

B. Rule 12(b)(2)

A challenge to personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure is a question of law, and the plaintiff bears the ultimate burden of proving jurisdiction. See Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016); Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). The Fourth Circuit has observed that the plaintiff's burden of proof “varies according to the [procedural] posture of [the] case and the evidence that has been presented to the court.” Grayson, 816 F.3d at 268.

Where the court decides a pretrial personal jurisdiction question without conducting an evidentiary hearing-“reviewing only the parties' motion papers, affidavits attached to the motion, supporting legal memoranda, and the allegations in the complaint”-a plaintiff “need only make a prima facie showing of personal jurisdiction” to withstand a jurisdictional challenge. Id. “[A] plaintiff makes a prima facie showing of personal jurisdiction by presenting facts that, if true, would support jurisdiction over the defendant.” Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 561 (4th Cir. 2014) (citing Mattel, Inc. v. Greiner & Hausser GmbH, 354 F.3d 857, 862 (9th Cir. 2003)). When considering whether the plaintiff has made a prima facie showing of jurisdiction, the court “must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction.” Id. at 558 (quoting Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)).

C. Rule 12(b)(6)

A motion made under Rule 12(b)(6) challenges the legal sufficiency of the facts in the complaint, specifically whether the complaint satisfies the pleading standard under Rule 8(a)(2). Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S 544, 570 (2007)). A claim is plausible when the complaint alleges sufficient facts to allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015) (quoting Iqbal, 556 U.S. at 678). The court “view[s] the complaint in a light most favorable to the plaintiff.” Mylan Lab'ys, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).

When considering a motion to dismiss, “a [district] court evaluates the complaint in its entirety, as well as documents attached [to] or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). Generally, on a Rule 12(b)(6) motion to dismiss, a court cannot consider documents beyond the complaint without converting the motion into a motion for summary judgment. See Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013). The court can, however, properly consider documents attached to or referenced in the complaint, as well as those attached to the motion to dismiss, so long as those documents are “integral to and explicitly relied on in the complaint.” Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)).

D. Rule 9(b)

Where a Plaintiff alleges fraud or mistake, “[n]ot only must the[] elements [of fraud] be pled, but under Fed.R.Civ.P 9(b) ‘the circumstances constituting fraud or mistake shall be stated with particularity ....'” TSC Rsch., LLC v. Bayer Chems. Corp., 552 F.Supp.2d 534, 543 (M.D. N.C. 2008). “Courts construe this to mean that plaintiffs must set out the ‘time, place, and contents of the alleged fraudulent misrepresentation, as well as the identity of each person making the misrepresentation and what was obtained thereby.'” Id. (quoting Breeden v. Richmond Cmty. Coll., 171 F.R.D. 189, 195 (M.D. N.C. 1997)). In applying this rule, the Fourth Circuit has cautioned that “[a] court should hesitate to dismiss a complaint under Rule 9(b) if the court is satisfied (1) that the defendant has been made aware of the particular circumstances for which [it] will have to prepare a defense at trial, and (2) that plaintiff has substantial prediscovery evidence of those facts.” Harrison v. Westinghouse Savannah...