Doe v. Doe

• Decision Date: 03 September 1992
• Docket Number: No. 91-1201,91-1201
• Citation: 973 F.2d 237
• Parties: Jane DOE, Plaintiff-Appellant, v. John DOE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 237

973 F.2d 237

Jane DOE, Plaintiff-Appellant, v. John DOE, Defendant-Appellee.

No. 91-1201.

United States Court of Appeals, Fourth Circuit.

Argued March 5, 1992.

Decided Aug. 10, 1992.

As Amended Sept. 3, 1992.

Gregg Meyers, Wise & Cole, Charleston, S.C. argued, for plaintiff-appellant.

James R. Hubbard, Allman, Spry, Humphreys, Leggett & Howington, P.A., Winston-Salem, N.C. argued (Daniel S. Johnson, Wilson, DeGraw, Johnson & Rutledge, Winston-Salem, N.C. on brief), for defendant-appellee.

Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and MURRAY, Senior United States District Judge for the District of Maryland, sitting by designation.

OPINION

ERVIN, Chief Judge:

Jane Doe, a 37-year-old Florida resident, sued her uncle John Doe, a North Carolina resident, under the district court's diversity jurisdiction. ¹ Jane's complaint contained counts for intentional and negligent infliction of emotional distress. Jane alleged that John, who is 9 years older than she is, sexually abused her when she was between the ages of 7 and 12, causing her to have lasting psychological problems. She also alleged that she only began to realize the cause of her problems after she sought counseling in 1989. John moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the statute of limitations had run. In granting the motion, the district court first stated that it was ruling solely on the pleadings. Then the district court, applying North Carolina law, held that the statute of limitations barred the action. Jane appeals, arguing (1) that the district court selectively looked outside the pleadings, and therefore should have treated John's motion to dismiss as a motion for summary judgment and considered all materials outside the pleadings; and (2) that the district court erred in applying North Carolina law. We now affirm.

I

We first set out the factual background and lower court decision in this controversy. Because we are ruling on a 12(b)(6) motion to dismiss, we must take the allegations in the plaintiff's complaint as true. See, e.g., Finlator v. Powers, 902 F.2d 1158, 1160 (4th Cir.1990). Thus, we summarize the allegations of the complaint as follows.

John Doe is Jane Doe's uncle. As a child, Jane visited her uncle John's home in Lexington, North Carolina, where she was sometimes in his care. When Jane was between the ages of 7 and 12, John fondled Jane, had Jane fondle him, performed sex acts with Jane, and had a friend similarly abuse Jane. Jane told no one about the abuse, because John threatened to blame it on her and cause her to be punished. John stopped abusing Jane when another family member told him to. Jane turned 13 on April 19, 1968, so the last abusive act alleged in the complaint must have occurred before that time. Because of the abuse she had suffered and her reputation, which John spread, Jane was unable to lead a normal life, as men continually took advantage of her. However, Jane did not realize that the contact with John continued to affect her behavior and thinking. In 1989, Jane sought professional counselling for her anxiety, depression, and inability to form normal relationships with men. During her therapy, Jane came to realize that her psychological problems were the proximate result of John's abuse, and she was diagnosed as suffering from post traumatic stress disorder stemming from her childhood abuse.

Jane filed her complaint in March 1991, less than 3 years after discovering the causal connection between John's abuse and her psychological problems, but 23 years after the last instance of abuse. John filed a 12(b)(6) motion to dismiss. The district court granted the motion, applying the 10-year period of repose in North Carolina's statute of limitations, which states that "no cause of action shall accrue more than 10 years" after the defendant's last harmful act. N.C.Gen.Stat. § 1-52(16). The district court determined that Jane had had a total of 13 years in which to bring this action, because a plaintiff in North Carolina must bring a claim of emotional distress within three years of accrual. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325, 330 & n. 8 (1981); King v. Cape Fear Mem. Hosp., 96 N.C.App. 338, 385 S.E.2d 812, 814 (1989), review denied, 326 N.C. 265, 389 S.E.2d 114 (1990) (both cases applying N.C.Gen.Stat. § 1-52(5)). Finally, because North Carolina tolls the statute of limitations until a claimant reaches the age of 18, N.C.Gen.Stat. § 1-17, the district court ruled that Jane's claim was barred at the latest after she turned 31, (13 years after she reached the age of 18), in 1986.

II

A

Jane argues first that the district court erred in not treating John's motion to dismiss as a motion for summary judgment. Jane alleges that the district court selectively looked beyond the pleadings in favor of the defendant. Because the district court looked at some documents outside the pleadings, Jane claims, it should have looked at all such documents and found that there are genuine disputes as to material facts in this case.

Jane argues that three statements in the district court's opinion show that the court looked outside the pleadings, although the court stated that it had not done so. First, Jane points out that the district court referred to her "promiscuous sexual course of behavior," Slip op. at 2, and claims that the district court must therefore have considered Jane's deposition, affidavit, and supporting materials. John counters that the district court only inferred that Jane had been promiscuous from her complaint and brief to the court. Jane's complaint, paragraph 21, states:

Once improper sexual access to her ceased, and as a direct and proximate result of her sexual activity with Mr. Doe, other males took advantage of Jane Doe for their sexual gratification. Ms. Doe was unable to lead a normal life and unable to extricate herself from the reputation that Mr. Doe created for her and disseminated for her.

Jane's complaint later stated that she was unable to form normal relationships. Complaint p 23. We conclude that the district court could have surmised that Jane had been promiscuous without looking outside the pleadings, and we find no reason to doubt the district court's word that it had properly confined itself to the pleadings in ruling on the motion to dismiss.

Next, Jane argues that the district court disagreed with her factual assertions, but the portion of the district court's opinion that Jane cites shows that the court only disagreed with Jane's legal argument:

This Court disagrees. Section 1-52(16) is not a separate statute of limitations. Rather, it is a repose provision meant to be applied to all personal injury or property damage cases, except those for medical malpractice, which fall under § 1-15(c), and for occupational disease claims, which have been excepted by case law.

Slip op. at 6. Finally, Jane claims that the district court's admonition that Jane's "pejorative tone" was inappropriate shows that the court must have looked at materials outside the pleadings. The district court's criticism, contained in a footnote in its opinion, stated:

The Court notes defendant's objection to the pejorative tone taken by plaintiff in her brief and admonishes plaintiff's counsel that such an approach is more appropriate for a closing argument to a jury rather than a legal argument before a court.

Slip op. at 7 n. 3. The court's statement shows that it was addressing John's objection to Jane's brief and not any additional materials. In his reply memorandum in support of his motion to dismiss, John had objected to Jane's use of the terms "survivor" and "abuser" to refer to the parties. In all, there is no indication that the district court looked beyond the pleadings or failed to accept Jane's allegations as true, and we reject Jane's argument that the district court overlooked any genuine disputes of material facts. That conclusion leads us to the second issue, whether the district court erred in concluding that North Carolina's statute of limitations barred Jane's claim as a matter of law.

B

Our function in this diversity case is to predict what the Supreme Court of North Carolina would decide were the statute of limitations issue presented to it. ² Two sections of the North Carolina code are relevant to this issue. First, section 1-52(5) states that a three-year statute of limitations applies to "criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereafter enumerated." North Carolina state courts have held that a cause of action for emotional distress falls under section 1-52(5). Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325, 330 & n. 8 (1981); King v. Cape Fear Mem. Hosp., 96 N.C.App. 338, 385 S.E.2d 812, 814 (1989), review denied, 326 N.C. 265, 389 S.E.2d 114 (1990). Second, section 1-52(16) states:

Unless otherwise provided by statute, for personal injury or physical damage to claimant's property, the cause of action, except in causes of actions referred to in G.S. 1-15(c) [medical malpractice], shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs. Provided that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.

N.C.Gen.Stat. § 1-52(16). We note two important aspects of this section, from the plain meaning of its language. The "shall not accrue until" clause, which is known as a "discovery provision," preserves a cause of action until a claimant has or should have discovered his harm. The final sentence, which is known as a "period of repose," establishes a fixed point after which a cause of action may not accrue even if the claimant has not discovered his harm. Construing sections 1-52(5) and 1-52(16) together, the district...