Butler v. Ballard

Filing 53

ORDER granting 27 Motion to Dismiss. Signed by Senior Judge W. Earl Britt on 8/1/2017. Copy sent to Terry Lynn Butler, P. O. Box 4252, Cleveland, TN 37320 via US Mail. (Edwards, S.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:16-CV-00062-BR
TERRY LYNN BUTLER,
Plaintiff,
v.
MARGARET ANN BALLARD,
Defendant.

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ORDER

This matter is before the court on defendant Margaret Ann Ballard’s 25 October 2016
motion to dismiss. (DE # 27.) On 3 November 2016, plaintiff filed a response entitled
“Declaration In Support of Opposition to Motion [to] Dismiss,” in which he requests the court
grant him leave to amend his complaint. (DE # 36.) Defendant did not file a reply brief, and the
time within which to do so has expired. This matter is therefore ripe for disposition.
I. BACKGROUND
On 16 August 2016, plaintiff brought this pro se action asserting a claim against
defendant for “trespass [theft].” (DE # 1.) Plaintiff’s complaint alleges that defendant is a
“wrongdoer” who committed a “trespass[theft] of [his] property.” (Id. at 1.) Plaintiff further
claims “the commencement of the wrong and harm began on 02 January 2016,” and continues to
this day. (Id.) The complaint identifies defendant as a citizen of North Carolina, and states that
plaintiff “reside[s] outside of North Carolina.” (Id.) Plaintiff prays for damages in the amount of
$168,000. (Id.)
On 6 September 2016, plaintiff filed an additional document entitled, “notice(s),” setting
forth definitions of a number of terms used in his complaint, including:

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action: “a process where aggrieved party moves a court asserting wrong as grow out
of contracts”;

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property: “propriety, ownership, special character (one’s own private property)”;

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trespass: “transgression, infringe, violate, [enter] unlawfully”;

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wrong: “twisted, crooked, that which is improper, negative of right”;

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wrongdoer: “[wo]man who twists, violates, infringes, transgress(s) right(s)”
(wrongdoer v. defendant)[.]

(DE # 7, at 1.) Plaintiff filed an additional “notice” on 11 October 2016. (DE # 22.) This notice
defines a “private right of action” as “[a] challenge, of property or ownership of a thing which is
wrongfully withheld from the possession of the claimant.” (Id. at 1.) The document also states
that “[a] claim is a right or title, actual or supposed, to a debt, privilege, or other thing in the
possession of another; not the possession, but the means, by or through which the claimant
obtains the possession or enjoyment.” (Id.)
Additionally, on 14 October 2016, plaintiff filed a document entitled “Amend
(ORDER),” which appears to serve as a proposed amended complaint. (DE # 24.) Thereafter,
on 25 October 2016, defendant filed the instant motion to dismiss plaintiff’s complaint. (DE #
27.)
II. DISCUSSION
A. Motion to Dismiss
Defendant moves to dismiss plaintiff’s complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. “The purpose of
a 12(b)(6) motion is to test the sufficiency of a complaint.” Edwards v. City of Goldsboro, 178
F.3d 231, 243 (4th Cir. 1999). When deciding a motion to dismiss under Rule 12(b)(6), a court
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must accept all factual allegations in the complaint as true and construe them in the light most
favorable to plaintiff. Nemet v. Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253
(4th Cir. 2009). The facts alleged must “raise a right to relief above the speculative level,” and
the complaint must contain “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Although “detailed factual allegations” are not required, “labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do[.]” Twombly, 550 U.S. at
555.
A pro se litigant’s pleadings are to be construed liberally to ensure that valid claims do
not fail merely for lack of legal specificity. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978). When considering whether a pro se plaintiff can withstand a motion to dismiss, “it is
appropriate to look beyond the face of the complaint to allegations made in any additional
materials filed by the plaintiff.” Garrett v. Elko, No. 95-7939, 1997 WL 457667, at *1 (4th Cir.
1997) (citing Gordon, 574 F.2d at 1149-51). While pro se litigants are held to less stringent
pleading standards than attorneys, this does not “undermine Twombly’s requirement that a
pleading contain ‘more than labels and conclusions.’” Giarratano v. Johnson, 521 F.3d 298, 304
n.5 (4th Cir. 2008) (quoting Twombly, 550 U.S. at 555). Thus, even a pro se complaint must
contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S.
at 570.
Defendant argues that plaintiff’s complaint must be dismissed for failure to plead any
facts that would support a claim of trespass. In response to defendant’s motion to dismiss,
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plaintiff has submitted numerous materials and notices, in which he alleges additional
information regarding his trespass claim. Given that plaintiff is a pro se litigant, the court will
consider the additional allegations in these materials and notices in determining the motion to
dismiss.
The additional materials filed by plaintiff indicate that this action concerns an agreement
that plaintiff made with his stepfather, Thomas Boisseau Matthews, at some point in 2010.
Plaintiff alleges that Matthews, “feared harm from [defendant] and offered to pay [plaintiff]
agreed amount of property [cf.$168,000.00] for performance by [plaintiff] to move from TN to
NC . . . to protect him from harm.” (Pl.’s Resp., DE # 36, at 8; see also Correspondence, DE #
31, at 2.) Plaintiff claims that the sum of $168,000 represented the “full present (2009) value
(PV) of the Butler family 1800SF ranch house of $164,500.00, plus of all of the moving
expenses of $3,5000.00.” (Ex. 1, DE # 29, at 4.) According to plaintiff, this agreement was
documented in Matthews’ will, (id. at 1), as well as a “letter of disinheritance” that was sent to
defendant, (id.; see also Correspondence, DE # 31, at 2). Plaintiff further alleges that he waited
until Matthews’ passing on 2 January 2016, “to request [his] property ($168,000.00)” from
defendant as “trustee” of Matthews’ estate. (Pl.’s Resp., DE # 36, at 1.)
Even reading the allegations in plaintiff’s materials broadly, plaintiff does not allege facts
supporting a claim for trespass. In North Carolina, the elements of a claim for trespass are: (1)
the plaintiff was in possession of the land at the time of the trespass; (2) the defendant made an
unauthorized entry onto the land; and (3) the plaintiff was injured by the invasion of his
possessory rights. Taha v. Thompson, 463 S.E.2d 553, 557 (N.C. Ct. App. 1995). To state a
claim for trespass, a plaintiff is required to plead that defendant intentionally and without
authorization “entered real property actually or constructively possessed by him at the time of
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the entry.” Miller v. Brooks, 472 S.E.2d 350, 355 (N.C. Ct. App. 1996) (emphasis added). In
his materials, plaintiff repeatedly states that the property at issue is the $168,000 that Matthews
promised to pay him if he moved to North Carolina. (See Ex. 1, DE # 29, at 4 (requesting that
defendant “honor [his] covenant” with Matthews by paying him “the sum of $168,000.00”);
Correspondence, DE # 31 at 2 (informing defendant that he “honored Mom and Tom’s wishes,
and waited until the passing of the last one to request my property ($168,000)”.) Plaintiff has not
plead any facts demonstrating that defendant made an unauthorized entry onto any land that he
possesses. Accordingly, plaintiff has failed to allege the required elements for a trespass claim.
Although plaintiff characterizes his claim as one for trespass, it appears that his claim is
one for trespass to chattels. “A successful action for trespass to chattels requires the party
bringing the action to demonstrate that she had either actual or constructive possession of the
personalty or goods in question at the time of the trespass, and that there was an unauthorized,
unlawful interference or dispossession of the property.” Fordham v. Eason, 521 S.E.2d 701, 704
(N.C. 1999) (internal citation omitted). Here, plaintiff claims that defendant committed a “theft”
and “trespass on [his] property” by refusing to honor his agreement with Matthews and pay him
$168,000. (Ex. 1, DE # 29, at 4.) According to plaintiff, his agreement with Matthews was
subject to the condition precedent that plaintiff “come to Gates, NC to live with [his mother and
Matthews] to protect them from harm by [defendant].” (Correspondence, DE # 31, at 2.)
Plaintiff’s complaint does not allege that he ever fulfilled this condition. In fact, the allegations
in plaintiff’s materials indicate that plaintiff is “a citizen of [Virginia]” who continues to “live in
Tennessee.” (Pl.’s Resp., DE # 36, at 9.) Thus, even taken as true, plaintiff’s allegations do not
show that he owned and was entitled to possess the property in question at the time of the
trespass. See Fordham, 521 S.E.2d at 704 (“Constructive possession is a legal fiction existing
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when there is no actual possession, but there is title granting an immediate right to actual
possession.” (emphasis added)). Accordingly, plaintiff’s allegations in this case are insufficient
to state a claim for trespass to chattels. Because has failed to plausibly allege a claim for either
trespass or trespass to chattels, defendant’s motion to dismiss will be granted.
B. Motion to Amend
In his response in opposition, plaintiff requests that should the court determine that
“greater particularity is in order or that the present pleading falls short for some other reasons,
[plaintiff] expressly request leave to replead” pursuant to Rule 15 of the Federal Rules of Civil
Procedure. (DE # 36, at 4.) Rule 15(a) provides that leave to amend should be freely given
“when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, a district court may deny leave to
amend if amending the complaint would be futile. Nourison Rug Corp. v. Parvizian, 535 F.3d
295, 298 (4th Cir. 2008). Amendment of a complaint is futile if the complaint, as amended,
would not withstand a motion to dismiss. U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc.,
525 F.3d 370, 376 (4th Cir. 2008).
Included with the numerous materials that plaintiff has submitted is a document entitled
“Amend (ORDER),” which appears to serve as a proposed amended complaint. (DE # 24.) The
“Amend (ORDER)” includes additional allegations regarding plaintiff’s trespass claim. In the
document, plaintiff states that he “live[s] in Tennessee,” and that he “gave no interest to his
property to no other.” (Id. at 2.) Plaintiff further claims that he “tr[ied] to settle the matter of
controversy on the private side,” and he now “requires immediate restoration of property post
haste.” (Id.) Even with the additional allegations contained in the proposed amended complaint,
plaintiff still fails to set forth sufficient facts to support a claim for trespass or trespass to

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chattels. Because amendment of the complaint would be futile, plaintiff’s request to amend the
complaint will be denied.
III. CONCLUSION
For the reasons stated herein, defendant’s motion to dismiss, (DE # 27), is GRANTED.
Plaintiff’s request for leave to amend the complaint, (DE # 36 ), is DENIED. The Clerk is
DIRECTED to enter judgment in favor of defendant and close this case.
This 1 August 2017.

__________________________________
W. Earl Britt
Senior U.S. District Judge

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