Sirsi Corporation v. Craven-Pamlico-Carteret Regional Library System

Filing 15

RESPONSE in Opposition re 7 First MOTION to Dismiss Pursuant to Rule 12 (b)(6)First MOTION to Dismiss Pursuant to Rule 12 (b)(6) filed by Sirsi Corporation. (Attachments: # 1 Exhibit Master Agreement, # 2 Exhibit Unpublished Cases) (Numbers, Robert)

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Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court, E.D. North Carolina,
Western Division.
Charles Michael CASSELL, III, Plaintiff,
v.
Officer MONROE, et al., Defendants.
Charles Michael Cassell, III, Plaintiff,
v.
Officer Monroe, et al., Defendants.
Nos. 5:10-CT-3023-BO, 5:10-CT-3094-BO.
Dec. 7, 2010.
Charles M. Cassell, III, Taylorsville, NC, pro se.
ORDER
TERRENCE W. BOYLE, District Judge.
*1 On March 1, 2010, Charles Michael Cassell,
III (“plaintiff”) filed a civil rights suit in this district, Cassell v. Monroe, et al., No.
5:10-CT-3023-BO (hereinafter “Cassell # 1”). On
June 10, 2010, the clerk's office received a filing,
docketed it as a separate civil rights suit, and
opened a second case, Casselll v. Monroe,
5:10-CT-3094-BO (hereinafter “Cassell # 2”). Cassell # 2 did not included an Application to Proceed
without Prepayment of Fees and Affidavit. Therefore, on June 15, 2010, an order of deficiency was
entered in the matter. (Cassell # 2, D.E. # 2) On
June 24, 2010, the Clerk of Court entered an order
directing remittance of the $350.00 filing fee as set
out and required under 28 U.S.C. § 1915(b)(1).
(Cassell # 2, D.E. # 4) Prior to that, on March 9,
2010, the Clerk had entered the same order directing remittance of the $350.00 filing fee in Cassell #
1. (Cassell # 1, D .E. 5)
To begin, it appears that a clerical mistake was
made in filing two separate suits. Both cases in-

volve the same defendants, the same dates, and the
same allegations. Filings in Cassell # 2 appear to
have been made to clarify filings made in Cassell #
1, not to open a second case. Supportive of this
conclusion, is the fact Cassell did not file a second
Application to Proceed without Prepayment of Fees
and Affidavit along with the filing construed as a
separate complaint until instructed by the court to
do so. Furthermore, Cassell wrote letters indicating
his confusion about what was pending before this
court. Under Rule 60(a) clerical mistakes in any
part of the record may be corrected by the court sua
sponte so long as no appeal is pending.
Fed.R.Civ.P. 60(a). As of the date of this order, no
dispositive motions have been filed in either case,
no dispositive orders have been entered in either
case, and no appeal has been docketed in the United
States Court of Appeals for the Fourth Circuit in
either case, and the district court may correct the
mistake. Id. The Clerk is DIRECTED to void and
vacate Cassell # 2 in its entirety and incorporate the
filings in Cassell # 2 into Cassell # 1 in chronological order. Thereafter, one case shall remain. Cassell v. Monroe, No. 5:10-CT-3023-BO.
Given this posture, the court now reviews the
matter for a frivolity determination and ruling on
FN1
the pending motions.
28 U.S.C. § 1915(e)(2).
In reviewing this complaint, a court “shall dismiss”
any case that is “frivolous or malicious,” that “fails
to state a claim on which relief can be granted,” or
that “seeks monetary relief against a defendant who
is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). A case is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104
L.Ed.2d 338 (1989).
FN1. Prior to conducting this frivolity review, plaintiff made a filing docketed as a
Motion to Amend (Cassell # 2, D.E. # 5).
A party may amend his pleading once as a
matter of course within 21 days after
serving it. Fed.R.Civ.P. 15(a)(1)(A). The

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court shall allow the July 1, 2010, Motion
to Amend (Cassell # 2, D.E. # 5). Therefore, the court conducts the frivolity review as to both the original complaint and
the Motion to Amend.
The action, while difficult to understand, arises
out of the alleged beating of plaintiff by defendant
Officer Monroe on January 22, 2008, and February
22, 2008. Plaintiff further alleges deliberate indifference to his medical care and intentional interference with his mail. It appears that the named defendants are Officer Monroe, Dr. Owens, P.A. Williams, P.A. Leggett, Officer Gragainis, Officer
Conner, Officer Hinson, Officer Blow, Sergeant
FN2
Sutton, J. Winebarger, and P. Jackson.
The
court shall allow these claims to proceed against
these defendants. However, before proceeding,
plaintiff must provide the addresses of defendants.
Without addresses the Marshal will be unable to effect service upon defendants due to the insufficient
address information. Therefore, plaintiff is allowed
14 days to comply with this order.
FN2. There are additional defendants appearing on the docket (Cassell # 1) identified only as “Doctor,” “All Officers,” and
“Disciplinary Hearing Officer,” however,
these parties are DISMISSED as they appear to be named in other filings.
*2 There are also two motions for discovery
before the court filed by Cassell (Cassell # 1, D.E.
# 7 and # 8). The motions fail to comply with Local
Rule 7.1(c) of the Local Rules of Practice and Procedure, which states that “[c]ounsel must ... certify
that there has been a good faith effort to resolve
discovery disputes prior to the filing of any discovery motions.” Cassell's motions also fail to comply
with Local Civil Rule 7.1(d), E.D.N.C, which requires that his motion be accompanied by a supporting memorandum. Further, it is likely defendants will serve him with the relevant prison and
medical records when they serve their dispositive
motions. If, after pursuing the proper avenues to
obtain the information as well as receiving the re-

cords within defendants filings, Cassell seeks additional relevant information, he may properly resubmit his motion to compel for the court's consideration. Cassell's motions for discovery are denied.
Accordingly, the Clerk is DIRECTED to correct the clerical mistake. Thus, the Clerk is DIRECTED to VOID and VACATE Cassell v. Monroe,
5:10-CT-3094-BO, in its entirety. In doing so the
June 24, 2010, order (Cassell # 2, D.E. # 4) is VACATED and the monies collected must be returned
to Cassell's trust fund account. The Clerk is DIRECTED to notify the Department of Corrections to
cease drafting funds from Cassell's trust account for
case number 5:10-CT-3094-BO. Further, the Clerk
is DIRECTED to incorporate all filings made in
Cassell v. Monroe, 5:10-CT3094-BO in chronological
order
into
Cassell
v.
Monroe,
5:10-CT-3023-BO which remains open and active.
The matter is ALLOWED to proceed against Officer Monroe, Dr. Owens, P.A. Williams, P.A. Leggett, Officer Gragainis, Officer Conner, Officer
Hinson, Officer Blow, Sergeant Sutton, J. Winebarger, and P. Jackson. All other defendants appearing in the docket are DISMISSED. However,
the matter cannot proceed until Cassell provides the
court with addresses for the 11 remaining named
defendants. He is given 14 days to provide the addresses, of the 11 defendants. The motions for discovery are DENIED (Cassell # 1, D.E. # 7 and # 8)
and the motion to amend is ALLOWED (Cassell #
2, D.E. # 5).
Cassell is NOTIFIED that he has one active
case pending in this district. The case is Cassell v.
Monroe, No. 5:10-CT-3023-BO. All filings made in
the case referenced as Cassell v. Monroe, No.
5:10-CT-3094-BO have been placed into Cassell v.
Monroe, No. 5:10-CT-3023-BO. Cassell is DIRECTED to include the correct case name and number,
Cassell v. Monroe, 5:10-CT-3023-BO, on all future
filings he wishes to make in this specific case. He is
notified that 5:10-CT-3094-BO has been vacated as
a separate case. When making filings Cassell
MUST include the proper case number. Cassell is

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also ORDERED to provide the addresses of the 11
remaining named defendants above. He is
WARNED that his failure to comply with this order
may result in the dismissal of the case.
*3 SO ORDERED.
E.D.N.C.,2010.
Cassell v. Monroe
Slip Copy, 2010 WL 5125339 (E.D.N.C.)
END OF DOCUMENT

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Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court, E.D. North Carolina,
Western Division.
Daniel L. SAGER, Plaintiff,
v.
STANDARD INSURANCE COMPANY, Defendant.
No. 5:08-CV-628-D.
July 12, 2010.
David A. Bryant, Daley, Debofsky & Bryant,
Chicago, IL, Norris A. Adams, II, Essex Richards,
PA, Charlotte, NC, for Plaintiff.
Andrew A. Vanore, III, Brown, Crump, Vanore &
Tierney, LLP, Raleigh, NC, W. Sebastian Von
Schleicher, Jacqueline J. Herring, Smith, Von
Schleicher & Associates, Chicago, IL, for Defendant.
ORDER
DAVID W. DANIEL, United States Magistrate
Judge.
*1 This matter is before the Court on Plaintiff's
Motion to Compel Discovery and Motion for Hearing. [DE-22 & 27.] Defendant has responded
[DE-25], and this matter is ripe for review.
After careful consideration, the Court concludes that Plaintiff's motion is fatally defective and
that these deficiencies are not merely technical: (1)
Plaintiff failed to file a supporting memorandum of
law, as required by Local Civil Rule 7.1(d); (2) The
motion is not signed by local counsel, as required
by Local Civil Rule 83.1(d); and (3) The motion
was filed after the close of fact discovery and no
motion to extend the fact discovery deadline has
been filed. See April 13, 2010 Order (establishing

fact discovery deadline of March 31, 2010)
[DE-21].
Plaintiff claims Defendant breached its contract
with Plaintiff by failing to pay him disability benefits. Plaintiff seeks documents related to the
“bonus, performance and compensation” of Defendant's employees, which Plaintiff asserts is relevant to show bias and incentive to deny claims.
Pl.'s Mot. ¶ 9. Defendant contests Plaintiff's assertion that the type of information sought is relevant
and has cited case law contrary to Plaintiff's position, while Plaintiff has failed to file a memorandum of law or to cite any case law in support of
its position that the documents sought are relevant.
One party's failure to file a memorandum of law
hinders the opposing party's ability to adequately
respond and prevents the court from properly adjudicating the motion.
It is also significant that the motion appears to
be untimely, as it was filed after the close of fact
discovery. See PCS Phosphate Co., Inc. v. Norfolk
Southern
Corp.,
238
F.R.D.
555,
558
(E.D.N.C.2006) (“Generally, absent a specific directive in the scheduling order, motions to compel
discovery filed prior to the discovery deadline have
been held timely.”) By letter of February 25, 2010,
Defendant's counsel informed Plaintiff's counsel
that Defendant did not believe further supplementation of its discovery responses was necessary.
Def.'s Resp. Ex. A [ DE-26 ]. After some further
discussion between counsel for the parties,
Plaintiff's counsel, via email letter on March 22,
2010, asked Defendant to produce certain documents in response to its previous discovery requests. Pl.'s Mot. Ex. D. Despite Defendant's failure
to respond, Plaintiff did not promptly file his motion to compel or ask the Court to extend fact discovery. Instead, Plaintiff waited three weeks after
the close of fact discovery to file the instant motion. Plaintiff has provided no reason for his delay
in the filing of this motion and has failed to show
good cause for the Court to essentially amend its

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Scheduling Order to reopen fact discovery. See
Fed.R.Civ.P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge's consent.”).
Based on Plaintiff's failure to comply with the
Local Rules of this Court and with the Court's
Scheduling Order, the motion to compel [DE-22] is
DENIED. Plaintiff's motion for hearing [DE-27] is
DENIED, as the Court finds, in its discretion pursuant to Local Civil Rule 7.1(i), that a hearing
would not aid the Court in the determination of this
motion.
E.D.N.C.,2010.
Sager v. Standard Ins. Co.
Slip Copy, 2010 WL 2772433 (E.D.N.C.)
END OF DOCUMENT

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Only the Westlaw citation is currently available.
United States District Court, E.D. North Carolina,
Western Division.
Larry JOHN, Plaintiff,
v.
Donnie HARRISON, Defendant.
No. 5:09–CV–315–FL.
Jan. 5, 2010.
West KeySummaryConstitutional Law 92
967
92 Constitutional Law
92VI Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional
Questions
92VI(C)1 In General
92k964 Form and Sufficiency of Objection, Allegation, or Pleading
92k967 k. Particular claims. Most
Cited Cases
(Formerly 78k1395(5))
Resident failed to allege any violation of his
constitutional rights by the county sheriff. Thus, the
sheriff was entitled to summary judgment on the
resident's claims. The resident alleged the sheriff,
who was responsible for serving and executing
either personally or through deputy sheriffs, civil
process under the laws of the state, made false
claims against him and “made a nuisance or threatening presentment” to the resident. The resident
failed to allege with any specificity that the sheriff's
actions in the course serving civil process resulted
in a violation of his rights.
Larry John, Raleigh, NC, pro se.
John A. Maxfield, Raleigh, NC, for Defendant.
ORDER
LOUISE W. FLANAGAN, Chief Judge.

*1 This matter is before the court on the
Memorandum and Recommendation (“M & R”) of
United States Magistrate Judge William A. Webb
(DE # 17), regarding plaintiff's motion for default
judgment (DE # 11) and defendant's motion for
summary judgment (DE # 12). No objections to the
M & R have been filed, and the time within which
FN1
to make any objection has expired.
This matter
is ripe for ruling.
FN1. Plaintiff returned the M & R to the
magistrate judge with “Refusal for Cause”
written across the face of each page, and
filed copy of the same with the clerk. This
response does not conform with the requirement to file “specific, written objections to the proposed findings and recommendations.” See Fed.R.Civ.P. 72(b)(2).
In his complaint filed July 9, 2009, plaintiff appears to allege that he is his own sovereign nation.
Invoking international law and the Bible, he contends that he may not be served with civil process
by defendant, “an agent of a foreign principal.”
Plaintiff seeks “immediate exclusive original cognizance of the United States” as well as “injunctive
relief from any future presentments and theft or
kidnap actions from any foreign agents or principals.” (Compl.7 .) Finding it difficult to determine
the precise nature of the cause of action, the magistrate judge construed this prayer for relief as seeking to prevent service of civil process upon him.
Defendant answered on August 3, 2009, raising
a number of defenses under the Federal Rules of
Civil Procedure. Specifically, defendant argued that
the complaint failed to state a claim for which relief
could be granted; was not well grounded in fact,
was not supported by existing law, was interposed
to improperly harass and delay defendant's performance of his lawful duty, and was signed in violation of Rule 11; and was barred by sovereign,
governmental, and individual qualified immunity.
Defendant admitted attempting to serve civil pro-

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cess on plaintiff and denied violating any clearly
established rights of plaintiff under the United
States Constitution.
On September 25, 2009, plaintiff filed a motion
for default judgment. As the magistrate judge
noted, the motion was little more than a proposed
order. Additionally, the court notes that plaintiff's
assertion that defendant “failed to serve timely any
claim, or answer, or defense” is not supported by
FN2
the record in this case.
The magistrate judge recommended denying any requested relief for failure
to comply with Local Civil Rules 7.1 and 10.1.
FN2. Defendant's answer contains a certificate of service upon plaintiff. Defendant
advises that plaintiff returned the answer to
defendant with the same “Refusal for
Cause” notation. (Mem.Supp.Summ. J. 2.)
On October 23, 2009, defendant moved for
summary judgment pursuant to Federal Rule of
Civil Procedure 56. In supporting affidavit filed
contemporaneously therewith, defendant stated
that, as elected Sheriff for Wake County, he is
charged with a duty under state law to duly serve
and execute all civil process directed to his office
by the North Carolina Court of Justice. In furtherance of that office and in accordance with state law,
defendant states that he served a civil summons and
complaint upon plaintiff by and through Deputy
Sheriff Kim Garey. Defendant argues that summary
judgment is appropriate on the basis of these undisputed facts.
In his M & R, entered December 11, 2009, the
magistrate judge recommends granting the summary judgment motion on a number of grounds.
First, the magistrate judge notes that plaintiff did
not file response to the motion, which is therefore
uncontested. Second, the magistrate judge notes
that the complaint was not properly signed as required by Local Civil Rule 10.1. Finally, the magistrate judge stated that the complaint fails to present
any claim for relief which could be granted by the
court. To the extent plaintiff has named defendant

in his official capacity, plaintiff fails to allege an
injury, or that such injury resulted from an official
policy or custom of defendant's office. See Belcher
v. Oliver, 898 F.2d 32, 36 (4th Cir.1990) (
“Because it is clear that there was no constitutional
violation we need not reach the question of whether
a municipal policy was responsible for the officers'
actions .”). To the extent defendant is named in an
individual capacity, he is entitled to qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)
(holding that government officials are entitled to
immunity “insofar as their conduct does not violate
clearly established statutory or constitutional rights
of which a reasonable person would have known”).
*2 After careful review, the court agrees with
the magistrate judge. The conclusions reached in
the M & R are supported by controlling case law as
applied to the facts of this case. Consequently, the
court hereby ADOPTS the recommendation of the
magistrate judge. For the reasons stated therein,
plaintiff's motion is DENIED and defendant's motion is GRANTED. The clerk of court is DIRECTED to close the case.
SO ORDERED,
MEMORANDUM & RECOMMENDATION
WILLIAM A. WEBB, United States Magistrate
Judge.
This cause comes before the Court upon Defendant's Motion for Summary Judgment (DE–12).
Plaintiff has failed to respond to this motion and the
time for doing so has expired. Accordingly, the motion is now ripe for adjudication. Pursuant to 28
U.S.C. 636(b)(1) this matter is before the undersigned for the entry of a Memorandum and Recommendation. For the following reasons, it is
HEREBY RECOMMENDED that Defendant's Motion for Summary Judgment (DE–12) be GRANTED.
As an initial matter, Plaintiff's “motion for default judgment” (DE–11) has also been referred to
the undersigned. Although it has been docketed as a

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motion, the filing is little more than a proposed order. No motion in accordance with Local Civil
Rules 7.1 and 10.1 has been attached to the proposed order. Nor has a memorandum in support of
the requested relief been filed. See, Local Civil
Rule 7.1(d). For these reasons, it is HEREBY RECOMMENDED that any relief requested in
Plaintiff's September 25, 2009 filing (DE–11) be
DENIED.
I. Background
Defendant Donnie Harrison is the Sheriff for
Wake County (DE–13, pg.2). In this capacity, he is
charged under the laws of the State of North Carolina to serve and execute, either personally or
through deputy sheriffs, civil process. (DE–13,
pg.2).
On or about July 24, 2009, a Civil Summons
and Complaint issued by the North Carolina General Court of Justice to the Sheriff of Wake County
for service was personally served upon the Plaintiff
(the Defendant in Wake County Superior Court
case number 08 CVS 22477) by Deputy Sheriff
Kim Garey (DE–13, pg.2).
Plaintiff filed the Complaint in this matter on
July 9, 2009 (DE–1). The Complaint is entitled
“Libel of Review–Common Law Claim in Admiralty—Notice Lis Pendens and—Verified Statement
of Right—Re False Claim in Assumpsit to Rights in
the Original Estate—Article III; Constitution”
(DE–1, pg.1). In his Complaint, Plaintiff appears to
claim that he is his own sovereign nation and cannot be served with civil process issued by the North
Carolina General Court of Justice and seeks to prevent service of civil process upon him by the Sheriff of Wake County.
Specifically, Plaintiff asserts that “[m]unicipal
agent Donnie Harrison has been making false
claims and this counterclaim and notice lis pendens
are now in the ‘original exclusive cognizance’ of
the United States through the district court (DE–1,
pg.1). Plaintiff also contends that “[i]n international
law and according to the law of the land, agents of

a foreign principal are required to file any pretended claim in the appropriate district court prior to
exercising rights to that claim” (DE–1, pg.1). Likewise, Plaintiff indicates that “Donnie Harrison, acting as ‘City Metro officer agent of the United Nation's International Monetary Fund and reserve
banker’, City of Washington, District of Columbia
has made a nuisance or threatening presentment to
Larry John. Donnie HARRISON is an agent of a
foreign principal, a ‘foreign state’ “ (DE–1, pg.2).
Finally, Plaintiff argues that “Donnie Harrison, reserve bank agent, has served Larry John with nuisance court papers in an effort to execute inland
seizure of Larry John's property” (DE–1, pg.5).
*3 Beyond this, it is difficult to ascertain the
precise nature of Plaintiff's claims or the relief he
seeks.
II. Analysis
Under Rule 56 of the Federal Rules of Civil
Procedure, summary judgment shall be granted:
against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial ...
since a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.
Celotex Corporation v. Catrett, 477 U.S. 317,
322–323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)
“[S]ummary judgment is appropriate when
there exists no genuine issue of material fact and
the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). The party seeking summary
judgment bears the burden of initially coming forward and demonstrating the absence of a genuine
issue of material fact. Celotex, 477 U.S. at 317;
Ross v. Communications Satellite Corp., 759 F.2d
355, 364 (4th Cir.1985). Specifically, the moving
party bears the burden of identifying those portions

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of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” that the moving party believes demonstrate an absence of any genuine issues of material
fact. Celotex, 477 U.S. at 323. Once the moving
party has met its burden, the non-moving party
must then affirmatively demonstrate that there is a
genuine issue which requires trial.
Matsushita
Electrical Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). As a general rule, the nonmovant must respond to a motion for summary
judgment with affidavits, or other verified evidence, rather than relying on his complaint or other
pleadings. Celotex, 477 U.S. at 324. See also, Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991).
Defendant's motion for summary judgment
should be granted for a number of reasons. First, as
noted above, because Plaintiff has not responded to
the instant motion, summary judgment could be
granted on that basis alone.
Furthermore, Plaintiff's complaint has not been
properly signed. See Local Civil Rule 10.1. Specifically, in lieu of a signature, a fingerprint appears
above the signature line of Plaintiff's Complaint
(DE–1, pg.10).
In addition, Plaintiff's Complaint on its face
fails to present any claim for relief which could be
granted by this Court. See generally, F.R. Civ. P. 8.
Generally, Plaintiff must present sufficient evidence for a reasonable fact finder to conclude that
his injury, if any, resulted from an official policy or
custom of the Sheriff's Office in order to survive
summary judgment. See Collins v. City of Harker
Heights, 503 U.S. 115, 120–121, 112 S.Ct. 1061,
117 L.Ed.2d 261 (1992). Plaintiff has failed to allege with any specificity that Defendant's actions in
the course serving civil process resulted in a violation of his rights. Thus, Plaintiff has failed in the
first instance to even allege an injury. Assuming arguendo, Plaintiff had sufficiently alleged a violation of his rights, he has further failed to properly
allege that his injury resulted from an official

policy or custom of the Sheriff's Office. See Hinkle
v. City of Clarksburg, 81 F.3d 416, 420 (4th
Cir.1996)(explaining that before a governmental
entity can be held liable under § 1983 in its official
capacity, there must be a deprivation of a federal
right).
*4 Finally, while it is difficult to precisely ascertain Plaintiff's claim, it is appears that that Defendant is being sued in his official capacity as the
Wake County Sheriff. Regardless, to the extent Defendant is being sued in his individual capacity he
is entitled to qualified immunity. Qualified immunity shields public officials from liability for
civil damages to the extent their conduct does not
violate “clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This
determination is based on the information actually
known or reasonably available to the officer at the
time, and is subject to any “exigencies of time and
circumstance that reasonably may have affected the
officer's perceptions.” Pritchett v. Alford, 973 F.2d
307, 312–313 (4th Cir.1992)(stating that qualified
immunity protects “all but the plainly incompetent
or those who knowingly violate the law”). Even if
officers “of reasonable competence” could disagree, qualified immunity will apply. Malley v.
Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89
L.Ed.2d 271 (1986). Moreover, this entitlement “is
an immunity from suit rather than a mere defense to
liability” Mitchell v. Forsyth, 472 U.S. 511, 105
S.Ct. 2806, 86 L.Ed.2d 411 (1985); Harlow v.
Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982). Given that Plaintiff has failed
to clearly articulate that Defendant has violated any
of his rights, Defendant is also entitled to the defense of qualified immunity.
III. Conclusion
For the foregoing reasons, it is HEREBY RECOMMENDED that Defendant's Motion for Summary Judgment (DE–12) be GRANTED.
SO

RECOMMENDED

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in

Chambers

at

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Raleigh, North Carolina this 11th day of December,
2009.
E.D.N.C.,2010.
John v. Harrison
Not Reported in F.Supp.2d, 2010 WL 28657
(E.D.N.C.)
END OF DOCUMENT

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a motion for summary judgment is denied as moot.
Only the Westlaw citation is currently available.
United States District Court, E.D. North Carolina,
Western Division.
Dawn J. HIGGINS, Plaintiff,
v.
SPENCE & SPENCE, PA., et al., Defendants.
No. 5:07-CV-33-D(1).
March 3, 2009.
Belinda Keller Sukeena, Sukeena Law Firm, P.C.,
Holly Springs, NC, for Plaintiff.
Richard Keith Shackleford, Sheryl T. Friedrichs,
Warren Perry Narron Shackleford & Mackay,
PLLC, Wake Forest, NC, Alan Bryant Hewett,
Hewett & Wood, PA, Selma, NC, for Defendants.
Annetha Dunn, Knightdale, NC, pro se.
ORDER
JAMES C. DEVER III, District Judge.
*1 Defendants Gregory A. Johnson, Elizabeth
L. Johnson, Homes by Greg Johnson, Inc.
(“HBGJ”), and Carol Grice Daniels (collectively,
“defendants”) filed a motion to renew their motions
to dismiss for failure to state a claim [D.E. 124].
Plaintiff responded with a motion to convert the
motion to dismiss into a motion for summary judgment [D.E. 134]. As explained below, defendants
failed to comply with Local Civil Rule 7.1(d) when
they initially moved for dismissal under Rule
12(b)(6) of the Federal Rules of Civil Procedure.
As such, when defendants sought to renew their
motions, they had nothing to renew. Construing
their renewed motion as an initial motion to dismiss
under Rule 12(b)(6)-given the motion's compliance
with Local Civil Rule 7.1(d)-the motion is not
timely filed. See Fed.R.Civ.P. 12(a)(1)(A)(i), (b).
Accordingly, as explained below, the court denies
defendants' motion to dismiss. Further, plaintiff's
motion to convert defendants' motion to dismiss to

I.
Dawn J. Higgins (“plaintiff”) filed a complaint
in this court on January 30, 2007, against several
individuals and corporations allegedly involved in a
real estate scheme involving ten closings with
plaintiff in Johnson County, North Carolina [D.E.
1]. Plaintiff amended her complaint on March 9,
2007 [D.E. 17]. Plaintiff alleges that in 2003 several named defendants solicited her to purchase real
property in Johnston County. Am. Compl. ¶¶ 3, 4,
20. The solicitors allegedly made numerous false
representations to plaintiff concerning the investment properties, which induced her to provide personal financial information to the solicitors. Id. ¶¶
22-25. The solicitors then wrongfully used
plaintiff's personal information and forged powers
of attorney to purchase ten homes in plaintiff's
name-five without plaintiff's knowledge. Id. ¶¶
26-27.
According to the amended complaint, defendants Gregory A. Johnson, Elizabeth L. Johnson,
HBGJ, and Carol Grice Daniels were the sellers of
six of the ten properties listed in the complaint. See
FN1
id. ¶¶ 27, 30, 31.
Plaintiff's amended complaint
contains twelve causes of action against defendants:
(1) negligence per se; (2) negligence; (3) fraud; (4)
breach of fiduciary duty; (5) civil conspiracy; (6)
negligent misrepresentation; (7) constructive fraud;
(8) legal malpractice/breach of standard of care; (9)
violation of the North Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”), N.C. Gen.Stat.
§ 75-1.1 et seq.; (10) violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
18 U.S.C. § 1962(c); (11) violation of the Real Estate Settlement Procedures Act (“RESPA”), 12
U.S.C. § 2607, for receipt of illegal kickbacks; and
(12) violation of RESPA, 12 U.S.C. § 2603, for execution of false settlement statements. In conjunction with the eight non-statutory claims, plaintiff
seeks punitive damages. See Am. Compl. ¶¶ 71, 77,
83, 91, 97, 111, 122, 137. Each claim incorporates

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by reference all other allegations in the amended
complaint. See id. ¶ 64, 72, 78, 84, 92, 98, 112,
123, 138, 150, 160, 166.

R's recommendation that the other defendants' motion to dismiss the amended complaint be granted
FN2
in part and denied in part.

FN1. Defendants state that they were the
sellers of seven properties (1, 2, 3, 6, 7, 8,
and 9), but the amended complaint only alleges that they collectively sold six (1, 2,
3, 6, 7, and 8). Compare Defs.' Mem. in
Supp. of Mot. to Dismiss 2 [hereinafter
“Defs.' Mem.”], with Am. Compl. ¶¶
30-31.

FN2. On February 5, 2008, plaintiff voluntarily dismissed (without prejudice) the
following claims against the other defendants: negligence per se, fraud, violation of
UDTPA, violation of RICO, and violation
of the kickback and settlement statement
provisions of RESPA. Plaintiff also voluntarily dismissed the civil conspiracy claim
against attorney Spence. Consequently, the
court vacated as moot the M & R's analysis
of these claims [D.E. 114].

*2 On April 24, 2007, Daniels, HBGJ, and the
Johnsons each filed an answer to the amended complaint [D.E. 49, 50, 51]. They did not include separate motions or supporting memoranda with these
answers. Other defendants in this litigation did file
separate motions to dismiss [D.E. 52, 62, 74], including memoranda in support of their motions
[D.E. 53, 63, 75]. Plaintiff responded to each of
these motions and memoranda [D.E. 87, 88, 89],
and these other defendants replied to plaintiff's responses [D.E. 93, 94, 95, 96]. The court referred
these motions to Magistrate Judge James E. Gates.
Plaintiff did not respond to Daniels, HBGJ, and the
Johnsons' answers. Additionally, the court did not
refer Daniels, HBGJ, and the Johnsons' answers
with their purportedly embedded motions to dismiss
to Judge Gates.
On January 7, 2008, Judge Gates recommended
that the other defendants' motions be granted in part
and denied in part [D.E. 103]. The court entertained
objections from the other defendants [D.E. 107]
and, on February 21, 2008, issued an order granting
in part and denying in part the other defendants'
motion to dismiss [D.E. 114]. Specifically, the
court overruled the other defendants' objections regarding the statute of limitations and Rule 9(b) of
the Federal Rules of Civil Procedure, sustained in
part the other defendants' objection regarding
plaintiff's request for punitive damages as to the
negligent misrepresentation and civil conspiracy
claims, and overruled the objection as to the remaining claims. Then, the court affirmed the M &

On May 5, 2008, HBGJ, Daniels, and the Johnsons jointly filed a renewal of their motions to dismiss [D.E. 124]. On June 17, 2008, plaintiff responded and moved to convert defendants' motion to
one for summary judgment [D.E. 134].
II.
Local Civil Rule 7.1(d) of the Eastern District
of North Carolina states:
Except for motions which the clerk may grant as
specified in Local Civil Rule 77.2, all motions
made other than in a hearing or trial shall be filed
with an accompanying supporting memorandum
in the manner prescribed by Local Civil Rule
7.2(a). Where appropriate, motions shall be accompanied by affidavits or other supporting documents.
Local Civil Rule 7.1(d), EDNC. When a party
fails to comply with Local Civil Rule 7.1, a court
may deny its motion. See, e.g., Williams v. Black,
No. 5:07-CT-3170-D, at *2 (E.D.N.C. Oct. 10,
2008) (unpublished); Thomas v. Smith, No.
5:07-CT-3159-FL, at *1 (E.D.N.C. July 22, 2008)
(unpublished); Masinick v. Am. Craftsmen, Inc.,
No. 5:07-CV-461-BR, 2008 WL 483456, at *2
(E.D.N.C. Feb. 19, 2008) (unpublished); ESA, Inc.
v. Walton Constr. Co., No. 7:04-CV-75-F(3), at
*1-2 (E.D.N.C. June 8, 2005) (unpublished); Na-

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tionwide Mut. Ins. Co. v. McMahon, 365 F.Supp.2d
671, 673 (E .D.N.C.2005); cf. Fayetteville, Cumberland County Black Democratic Caucus v. Cumberland County, No. 90-2029, 1991 WL 23590, at
*2-3 (4th Cir. Feb. 28, 1991) (per curiam)
(unpublished) (affirming district court's denial of
motion based on party's violation of predecessor to
Local Civil Rule 7.1).
*3 When defendants filed their answers to the
amended complaint on April 24, 2007, they moved
to dismiss plaintiff's claims under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. However,
they did not file separate motions or supporting
memoranda. Defendants assume that because they
filed a supporting memorandum with their renewed
motion that they have complied with Local Civil
Rule 7.1. See Renewal of Defs.' Mots. to Dismiss 1.
FN3
Rule 7.1, however, clearly states that a motion
“shall be filed with an accompanying supporting
memorandum.” Local Civil Rule 7.1(d), EDNC
(emphasis added). Filing a supporting memorandum over a year after their original answers does
not meet this contemporaneous requirement. Consequently, defendants failed to comply with Local
Civil Rule 7.1(d), and the court denies defendants'
original motions contained within their answers.
Moreover, when defendants sought to renew their
motions, they had nothing to renew. Construing
their renewal as an initial motion to dismiss under
Rule 12(b)(6)-given the motion's compliance with
Rule 7.1(d)-their motion is not timely filed. See
Fed.R.Civ.P. 12(a)(1)(A)(i), (b). Accordingly, the
court denies defendants' renewed motion to dismiss
[D.E. 124].

court denies defendants' motion to dismiss as untimely, the court denies plaintiff's motion to convert
as moot.
III.
As explained above, the court DENIES defendants' renewed motion to dismiss [D.E. 124] and
DENIES plaintiff's motion to convert [D.E. 134] as
moot.
SO ORDERED.
E.D.N.C.,2009.
Higgins v. Spence & Spence, PA
Slip Copy, 2009 WL 536069 (E.D.N.C.)
END OF DOCUMENT

FN3. Defendants' motion incorrectly cites
Local Civil Rule 7.2, instead of Rule 7.1.
Rule 7.2 sets forth the formatting and citation requirements for supporting memoranda. Rule 7.1(d) actually requires memoranda in support of motions.
Plaintiff's response includes a motion to convert defendant's renewed motion to dismiss to one
for summary judgment [D.E. 134]. Because the

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Only the Westlaw citation is currently available.
United States District Court, E.D. North Carolina,
Western Division.
Luke MASINICK, Plaintiff,
v.
AMERICAN CRAFTSMEN, INC., ACI Superwalls, Inc., and Edward Rubio, Defendants.
No. 5:07-CV-461-BR.
Feb. 19, 2008.
Adam Mitchell Neijna, The Law Offices of Adam
Neijna, PLLC, Raleigh, NC, for Plaintiff.
James P. Laurie, III, The Law Office of James P.
Laurie III, PLLC, Raleigh, NC, for Defendants.
ORDER
W. EARL BRITT, Senior District Judge.
*1 This matter is before the court on defendants' motion to dismiss plaintiff's fifth claim for relief and plaintiff's motion for a more definite statement. Plaintiff did not file a response to defendants'
motion, and defendants responded in opposition to
plaintiff's motion.
Defendants contend that plaintiff has failed to
state a claim pursuant to Fed.R.Civ.P. 12(b)(6) as to
his claim seeking declaratory judgment. This claim
concerns provisions in the employment agreement
between plaintiff and defendants which address
non-competition, non-solicitation, confidential information, and future patents. (Compl.¶¶ 105-108.)
Plaintiff alleges:
The parties have an actual, justiciable controversy as to the rights and obligations of each in
accordance with the respective Agreements and
desire that the court declare the rights and obligations as to the following issue:
a. What, if any, obligation(s) does Plaintiff

have with regard to the non-compete and/or
“Protection of Employer's Business” provision(s) contained in the Employment Agreement?
b. What, if any, obligation(s) does Plaintiff
have with regard to the confidentiality and/or
“Confidential Information” provision(s) contained in the Employment Agreement?
c. What, if any, obligation(s) does Plaintiff
have with regard to the patent/trademark and/or
“Ideas and Concepts” provision(s) contained in
the Employment Agreement?
d. What, if any, obligation(s) does Plaintiff
have with regard to the Non-Disclosure Agreement?
(Id. ¶ 111.)
Plaintiff asserts this claim pursuant to the
North Carolina Declaratory Judgment Act, N.C.
Gen.Stat. § 1-253, which provides
Courts of record within their respective jurisdictions shall have power to declare rights, status,
and other legal relations, whether or not further
relief is or could be claimed. No action or proceeding shall be open to objection on the ground
that a declaratory judgment or decree is prayed
for. The declaration may be either affirmative or
negative in form and effect; and such declarations
shall have the force and effect of a final judgment
or decree.
As the North Carolina Court of Appeals has recognized,
Although the North Carolina Declaratory Judgment Act does not state specifically that an actual
controversy between the parties is a jurisdictional
prerequisite to an action thereunder, our case law
does impose such a requirement. [T]he existence
of an actual controversy is necessary to the
court's subject matter jurisdiction. For there to be

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an “actual controversy,” there must be more than
a mere disagreement between the parties and litigation must “appear unavoidable.”

(E.D.N.C.)
END OF DOCUMENT

Bueltel v. Lumber Mut. Ins. Co., 134 N.C.App.
626, 628, 518 S.E.2d 205 (quotations and citations
omitted) (alteration in original), review denied, 351
N.C. 186, 541 S.E.2d 709 (1999).
Defendants argue that no controversy exists because plaintiff has not “allege [d] facts showing any
controversy beyond the mere existence of the post
employment covenants.” (Defs.' Br. at 2.) The court
agrees. The court also notes that plaintiff has only
alleged defendants intend to enforce the provisions
at issue. (Compl.¶ 110.) Defendants have not counterclaimed against him for breach of those provisions nor do they seek injunctive relief to enforce
those provisions. Cf. Bueltel, 134 N.C.App. at 629,
518 S.E.2d 205 (finding an actual controversy existed because former employer had communicated to
former employee that employee was violating his
employment agreement and that legal action may
be taken against him, and because employee sought
judgment as to whether his past and present conduct violated the agreement; “the parties were not
asking the court to interpret the document in anticipation of future acts”). The motion to dismiss is
ALLOWED, and plaintiff's fifth claim is DISMISSED.
*2 In his answer to defendants' counterclaims,
plaintiff brings a motion for a more definite statement of some of defendants' affirmative defenses.
Aside from not being proper on the merits for the
reasons set forth in defendants' response, the motion also violates the court's local rules in that it is
not accompanied by a supporting memorandum nor
it is double-spaced, see Local Civil Rules 7.1(d),
10.1(a), EDNC. The motion for a more definite
statement is DENIED.
E.D.N.C.,2008.
Masinick v. American Craftsmen, Inc.
Not Reported in F.Supp.2d, 2008 WL 483456

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United States District Court, E.D. North Carolina,
Western Division.
PACIFIC AG GROUP and Alliance Farm Group,
Inc., Plaintiffs,
v.
H. GHESQUIERE FARMS, INC., Ghesquiere Plant
Farms Limited, and Strawberry Hill, Inc., Defendants.
No. 5:05-CV-809-FL.
Aug. 21, 2007.
Paige Chandler Kurtz, Sprouse & Kurtz, PLLC,
Raleigh, NC, for Plaintiffs.
John Rudy Wallace, Joseph A. Newsome, Wallace
Nordan & Sarda, LLP, Raleigh, NC, for Defendants.
MEMORANDUM AND RECOMMENDATION
JAMES E. GATES, United States Magistrate
Judge.
*1 This case comes before the court on the motions for summary judgment filed by defendants H.
Ghesquiere Farms, Inc. (“Ghesquiere Farms”),
Ghesquiere Plant Farms Limited, and Strawberry
Hill, Inc. (“Strawberry Hill”) (collectively
“defendants”) (DE # 37) and by plaintiffs Pacific
AG Group and Alliance Farm Group, Inc.
FN1
(collectively “plaintiffs”) (DE # 39).
The motions were referred to the undersigned Magistrate
Judge for review and recommendation, pursuant to
28 U.S.C. § 636(b)(1)(B). For the reasons set forth
below, it is recommended that both defendants' and
plaintiffs' motions for summary judgment be
denied.
FN1. Plaintiffs re-filed their motion for
summary judgment and memorandum in
support of their motion for summary judgment with corrected signatures at docket
entry # 43 and # 42, respectively.

BACKGROUND
Parties
Plaintiffs, both California corporations, are engaged in the business of propagating infant strawberry plants, termed strawberry runner tips, for resale to customers in the strawberry market. (Compl.
(DE # 1), ¶¶ 1, 2, 8). Ghesquiere Farms, a Canadian
corporation, is engaged in the business of growing,
maintaining, and selling strawberry plants, which
are purportedly distributed by Ghesquiere Plant
Farms Limited, a Canadian corporation, and Strawberry Hill, an administratively dissolved North CarFN2
olina corporation.
(Id., ¶¶ 3-5, 9).
FN2. The administrative dissolution of
Strawberry Hill does not prevent it from
asserting counterclaims or being sued in
this action. N.C.G.S. § 55-14-05(b)(5)
(dissolution does not “prevent commencement of a proceeding by or against the corporation in its corporate name”); N.C.G.S.
§
55-14-21
(making
N.C.G.S.
§
55-14-05(b)(5) applicable to administratively dissolved corporations).
2003 Shipments and Resulting July 2004 Settlement Agreement.
In 2003, plaintiffs purchased strawberry runner
tips from Ghesquiere Farms and Strawberry Hill. (
Id., ¶ 10). Plaintiffs contend that these plants were
infected with a disease, resulting in damages to
plaintiffs. (Id., ¶¶ 13-16). On 29 September 2003,
as result of disputes over these plants, Ghesquiere
Farms and Strawberry Hill sued plaintiffs and one
other party in Wake County Superior Court. (Id., ¶
17). The action (“2003 action”) was removed to this
FN3
court
and in July 2004 a settlement was
reached between plaintiffs and defendants. (Id., ¶
22). The handwritten settlement agreement
(“agreement” or “settlement agreement”) was negotiated and signed by Frank Sances (“Sances”), on
behalf of plaintiffs, and Carl Ghesquiere
(“Ghesquiere”), on behalf of defendants. (Id., Ex.
FN4
A, p. 3).
Under the agreement, defendants were

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required to provide a certain amount of strawberry
runner tips to plaintiffs in 2004 without charge and
to sell additional strawberry runner tips to plaintiffs
at specified discounts 2004, 2005, and 2006. (Id., ¶
25, Ex. A). The agreement also provided for defendants to pay the specified discounts in cash to
plaintiffs in lieu of the plants under certain circumstances. (Id., ¶ 26, Ex. A, ¶ 8). The 2003 action was
to be dismissed after the 2004 shipments provided
for in the agreement had been made. (Id., ¶ 24, Ex.
A, ¶ 6).
FN3. Strawberry Hill, Inc., et al. v. Alliance Farm Group, Inc., et al., No.
5:03-CV-795-FL (E.D.N.C).
FN4. The citations in this Memorandum
and Recommendation are to the copy of
the handwritten agreement attached as an
exhibit to the complaint. A typed version
of the agreement, although not fully
signed, is attached as exhibit A to the answer and counterclaims (DE # 6-2).
2004 Shipments and Resulting November 2004
Addendum
Defendants shipped plants to plaintiffs in late
July and early August 2004. (6 Aug 2004 Letter
(DE # 38-7, 41-5), p. 1). Plaintiffs claimed that the
plants did not meet the quality standards in the
agreement. (Id., p. 1 ¶¶ 1-4). To resolve the issue,
in November 2004 the parties, again through Sances and Ghesquiere, entered into an addendum to the
agreement. (Addendum (DE # 38-5, 41-3), p. ¶ 2).
FN5
It provided for defendants to ship additional
plants to plaintiffs free of charge in 2005. (Id., p. 1
¶ 3). The addendum also provided for the immediate dismissal of the 2003 action, which occurred. (
Id., ¶ 6).
FN5. Although all the parties to this action
entered into the agreement, it appears that
Ghesquiere Plant Farms Limited, was left
out of the addendum. However, because
the addendum incorporated the agreement
by reference, the court concludes that all

plaintiffs and all defendant to this action
were parties to both the agreement and addendum.
Dispute Over Purchases to be Made in 2005
*2 A dispute subsequently arose between
plaintiffs and defendants over the terms of the plant
shipments to be made in 2005 under the agreement
as amended by the addendum and the payment of
cash discounts by defendants in lieu of the plants.
(Sances' Depo. (DE # 38-13), p. 59). As a result, on
30 November 2005, plaintiffs brought this action
alleging that defendants had breached the agreement. Defendants have filed an answer and counterclaims (DE # 6), in which they deny liability to
plaintiffs and allege that plaintiffs breached the
agreement. Defendants did not ship plaintiffs any
plants in 2005 or 2006. (See Ghes.'s Aff. (DE #
37-2), ¶ 28).
Parties' Claims and Summary Judgment Motions
Plaintiffs assert claims for several breaches by
defendants of their obligations under the agreement
and the addendum, including: failure to provide
conforming plants in the 2004 shipments, for which
plaintiffs seek consequential damages; anticipatory
repudiation by defendants of their obligation to
provide plaintiffs plants in 2005; and failure to pay
plaintiffs cash discounts in lieu of plants in 2005
and 2006. Defendants assert a counterclaim for
plaintiffs' breach of their purported obligation to
buy plants in 2005.
In their motion for summary judgment,
plaintiffs seek entry of judgment in their favor on
each of their foregoing claims. Defendants seek
summary judgment denying plaintiffs' claim for
consequential damages for the 2004 shipments and
upholding their own claim for breach by plaintiffs
regarding purchases in 2005.
DISCUSSION
I. STANDARD ON MOTION FOR SUMMARY
JUDGMENT AND CHOICE OF LAW
Before turning to an analysis of each of the

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claims at issue, the court will review the standard
for determination of summary judgment motions
and the substantive law applicable to the parties'
claims.
A. Summary Judgment Standard
It is well established that a motion for summary
judgment pursuant to Rule 56 of the Federal Rules
of Civil Procedure should be granted only “if the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). In analyzing whether there is a genuine issue of material fact, all facts and inferences drawn
from the facts must be viewed in the light most favorable to the nonmoving party. Evans v. Techs.
Applications & Serv. Co., 80 F .3d 954, 958 (4th
Cir.1996).
The burden is on the moving party to establish
the absence of genuine issues of material fact and
“a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily
renders all other facts immaterial.” Celotex Corp.,
477 U.S. at 323; Teamsters Joint Council No. 83 v.
Centra, Inc., 947 F.2d 115, 119 (4th Cir.1991)
(“[W]here the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, disposition by summary judgment is
appropriate.”). If the movant meets its burden, then
the non-moving party must provide the court with
specific facts demonstrating a genuine issue for trial in order to survive summary judgment. Celotex,
477 U.S. at 323. The non-moving party is not permitted to rest on conclusory allegations or denials
and a “mere scintilla of evidence” will not be considered sufficient to defeat a summary judgment
motion. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
B. Choice of Law
*3 This case is before the court pursuant to its
diversity jurisdiction, 28 U.S.C. § 1332. In the ad-

dendum, the parties state that North Carolina law
will govern the addendum and agreement.
(Addendum, p. 1 ¶ 5). In the memoranda in support
of their respective motions for summary judgment,
the parties reaffirm their agreement to this choice of
law provision. (Plfs.' Mem. in Supp. (DE # 40-1), p.
10; Defs.' Mem. in Supp. (DE # 38-1), p. 12). The
court shall accordingly apply the substantive law of
North Carolina in deciding the instant motions.
II. PLAINTIFFS' CLAIM FOR CONSEQUENTIAL DAMAGES FOR THE 2004 SHIPMENTS
As indicated, plaintiffs seek summary judgment on their claim for consequential damages purportedly caused by defendants' shipment of substandard plants to them in 2004. The consequential
damages claimed are primarily for additional labor
costs associated with disposal of purportedly unhealthy plants. Defendants seek summary judgment
denying the claim on the grounds that all disputes
arising from the 2004 shipments were resolved by
the parties' entry into the addendum to the agreement. Defendants contend that plaintiffs' claim is
also barred by the dismissal of the 2003 action.
The court will analyze this aspect of the parties'
summary judgment motions by first reviewing additional facts relevant to plaintiffs' claim regarding
the 2004 shipments. The court will then address the
pertinent provisions of the addendum and the effect
of dismissal of the 2003 action on plaintiffs' claim.
A. Additional Factual Background
Plaintiffs received the shipments at issue from
defendants between late July and early August
2004. (6 Aug. 2004 Letter (DE # 38-7, 41-5), p. 1).
After inspection, plaintiffs estimated that approximately 200,000 of the 2 million strawberry plants received were unable to be planted due to disease and
other health issues. (Id., p. 2 ¶ 9). Sances, acting on
behalf of plaintiffs, notified Ghesquiere, acting on
behalf of defendants, of these problems (see 6 Aug.
2004 Letter), and on 17 November 2004 the parties
entered into the addendum. The addendum provided
that defendants would ship an additional 200,000
plants to plaintiffs free of charge during the 2005

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growing season. (Addendum, p. 1 ¶ 3). The addendum also provided that the parties would file a
stipulation of dismissal in the then-pending 2003
action and that the dismissal would be with prejudice. (Id., ¶ 6). The parties filed the stipulation of
dismissal on 24 November 2004, terminating the
2003 action. (See Stipulation (DE # 38-6)).
B. Interpretation of the Addendum
A settlement agreement is recognized in North
Carolina as “a valid contract between the settling
parties which is ‘governed by general principles of
contract law.’ “ McClure Lumber Co. v. Helmsman
Construction, Inc., 585 S.E.2d 234, 238, 160
N.C.App. 190, 197 (2003) (quoting Chappell v.
Roth, 548 S.E.2d 499, 500, 353 N.C. 690, 692
(2001)). In analyzing the agreement, the court must
first determine the intention of the parties. Int'l Paper Co. v. Corporex Constructors, Inc., 385 S.E.2d
553, 556, 96 N.C.App. 312, 317 (1989). The language in the agreement will be given its plain and
ordinary meaning.
Internet East, Inc. v. Duro
Commc'ns, Inc., 553 S.E.2d 84, 87, 146 N.C.App.
401, 405 (2001); see also Crawford v. Potter, No.
1:04CV00303, 2005 U.S. Dist. LEXIS 23423, at
*12 (M.D.N.C.2005) (in a breach of contract action
applying North Carolina law, the court stated that
“a settlement agreement, like all contracts must be
interpreted according to its plain meaning”). If the
contract is unambiguous on its face, the court is
permitted to interpret the contract as a question of
law; however, if any part of the contract is ambiguous or the intent of the parties is unclear, ambiguities must be resolved and the contract interpreted
by the fact finder. Int'l Paper Co., 385 S.E.2d at
556, 96 N.C.App. at 317.
*4 Here, the pertinent language of the addendum unambiguously indicates that it was
entered into as a consequence of plaintiffs' complaints about the plants in 2004 shipments. It states
in relevant part:
[C]ertain plants which have been shipped to Alliance and Pacific AG [in 2004], have in the view
of Alliance and Pacific AG, not met the appropri-

ate standards. For that reason, the parties agree to
amend and modify the Settlement Agreement.
(Addendum, p. 1 ¶ 2). In addition, there appears to be no dispute that defendants were to
provide plaintiffs the 200,000 free plants as substitutes for the 200,000 plants about which plaintiffs
complained. (Plfs.' Mem. in Supp., p. 5; Defs.'
Mem. in Opp. (DE # 45), p. 5). Indeed, the limitation of plaintiffs' claim to consequential damages
for the 2004 shipments reflects their view that the
consideration they received under the addendum
compensated them for the plants themselves. (See
Plfs.' Mem. in Supp., p. 6, 13).
However, the addendum is ambiguous as to
whether it was intended to resolve claims by
plaintiffs for any other damages they potentially incurred as a result of the 2004 shipments, including
any claims for consequential damages. There is no
express provision in the addendum whether consequential damages or any other particular type of
damages are included. In addition, the person who
negotiated the addendum on behalf of plaintiffs,
Sances, states in an affidavit that consequential
damages were not discussed. (Sances' 1 Mar. 2007
Aff. (DE # 39-2), ¶¶ 58, 59). These facts tend to
show that consequential damages are not covered
by the addendum.
At the same time, the addendum does not conFN6
tain an integration clause.
Without an integration clause, there is no presumption that the parties
intended the documents to be their complete agreeFN7
ment.
See Melvin v. Principi, No.
5:03-CV-968-FL, 2004 U.S. Dist. LEXIS 28464, at
*18 (E.D.N.C. 2 Dec. 2004) (under North Carolina
law, an integration or merger clause “creates a rebuttable presumption that the writing is a complete
and exclusive statement of the contract terms.”)
(quoting Smith v. Central Soya of Athens, Inc., 604
F.Supp. 518, 525 (E.D.N.C.1985)). The record does
not establish definitively that the addendum
(including the agreement which was incorporated
by reference into it) was intended to be the complete agreement of the parties regarding the 2004

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shipments. The court therefore cannot rule out the
possibility that, although not stated in the addendum, parol evidence at trial would establish that
the addendum was intended to apply to consequential damages, as defendants contend.
FN6. The court notes that in the agreement
the parties included a provision, unusual
for a commercial contract, that upon the
death of either Sances or Ghesquiere all
obligations under the agreement would
cease. (Compl., Ex. A, ¶ 7). The parties do
not address the purpose of this provision
and the court makes no finding on its purpose. Nevertheless, the provision could indicate that only these two persons had a
full understanding of the agreement and
that there were unwritten terms personally
known only to them. If that is so, the provision would tend to establish that the
agreement was not fully integrated.
FN7. If the agreement is determined to be
fully integrated but ambiguous, then the
court can look to parol evidence only to
determine the parties' intent. Rowe v.
Rowe, 287 S.E.2d 840, 845, 305 N.C. 177,
185 (1982). In the absence of a fully integrated agreement, the court would be permitted to look to parol evidence not only to
determine the parties' intent, but also to
supplement or add provisions to the agreement. Id.
Also seemingly supportive of defendants' position is the overall structure of the addendum, which
is suggestive of an intent to resolve all claims by
plaintiffs arising from the 2004 shipments. It would
not appear to have been in defendants' interest to
replace the complained-of plants free of charge but
leave themselves exposed to a future claim for consequential damages arising from the same allegedly
defective shipment. This consideration is not dispositive of the parties' intent, however, because,
among other reasons, it is conceivable that businesses in the position of defendants would deem the

risk of a future claim worth taking.
*5 If the addendum did not resolve plaintiffs'
claim for consequential damages, the degree to
which the 2004 shipments conformed to the requirements established in the agreement would become an issue. Plaintiffs have presented both argument and evidence in support of their position that
the shipments were nonconforming. (Plfs.' Mem. in
FN8
Supp., p. 4-5; Compl., ¶¶ 40-42;
Sances' 1
Mar. 2007 Aff., ¶¶ 36-56). While defendants deny
in argument and their answer that the shipments
were nonconforming, it is less clear that they have
forecasted evidence supporting this denial. (Defs.'
Mem. in Opp., p. 5; Ans. (DE # 6), ¶¶ 40-42). The
court need not resolve that issue, however, given
the uncertainty over whether the addendum encompasses consequential damages. The presence of this
and the other disputes regarding facts material to
plaintiffs' claim regarding the 2004 shipments precludes summary judgment for any party with respect to it.
FN8. The complaint is verified and therefore serves as evidence and not simply as a
pleading.
C. Effect of Dismissal of the 2003 Action
Defendants are correct that the stipulation of
dismissal with prejudice is an absolute bar to relitigation of any of the dismissed claims. Harrison
v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530,
534 (4th Cir.1991). However, the dismissed claims
dealt solely with the disputes between the parties in
2003. (See Compl., pp. 7-27, Strawberry Hill, Inc.,
No. 5:03-CV-795-FL). Accordingly, the stipulation
of dismissal bars only recovery for damages resulting from the 2003 shipments. The dismissal therefore does not apply to plaintiffs' claim arising from
the 2004 shipment. Its inapplicability is an additional reason for denial of summary judgment for
defendants on this claim by plaintiffs.
III. PARTIES' CLAIMS REGARDING 2005
SHIPMENTS PROVIDED FOR IN THE
AGREEMENT

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As indicated, both plaintiffs and defendants assert claims with respect to the shipment of plants in
2005 that are provided for in the agreement but
never occurred. Plaintiffs claim anticipatory repudiation by defendants and, alternatively, failure by
defendants to pay discounts in cash. Defendants
claim breach by plaintiffs based on their failure to
make purchases as purportedly required. Each of
these claims is discussed below, following a more
detailed factual background pertaining to the 2005
shipments.
A. Additional Factual Background
On 9 March 2005, Sances telephoned
Ghesquiere and expressed a desire to purchase
strawberry plants that year. (Plfs.' Mem. in Supp.,
p. 7; Defs.' Mem. in Supp., p. 9; Sances' 1 Mar.
2007 Aff., ¶ 67; Ghes.'s Depo. (DE # 41-18), pp.
134-35). Subsequent to this conversation, Sances
sent an email letter to Ghesquiere on 17 March
2005 (“17 March letter”) setting out the terms for
purchase of strawberry plants. (17 Mar. 2005 Letter
(DE # 38-9, 41-6); Ghes. Depo, p. 136). The email
began with a note from Sances' assistant, stating:
“Following is our Strawberry agreement for the
2005 growing season. Please sign and return two
copies with original signatures. We will sign and
return a signed copy for your records.” (17 Mar.
2005 Letter). In the body of the letter, Sances requested 2.5 million Ventana tips at a price of $78
per thousand, with a $40 per thousand discount, as
set forth in the agreement. (Id., p. 1 ¶¶ 2, 3, 5).
Sances also requested 200,000 strawberry runner
tips free of charge as reimbursement for the unhealthy tips shipped in 2004 and in accordance with
the addendum. (Id., ¶ 1). Quoting language from
the agreement, Sances requested that Ghesquiere
ship the plants to California, where Sances would
inspect them and, if accepted, send Ghesquiere a
check for payment. (Id., ¶ 6). Ghesquiere did not
print out and sign the 17 March letter or return it to
Sances. (Plfs.' Mem. in Supp., p. 15, 16; Defs.'
Resp. to Adm. (DE # 41-10), ¶ 12; Ghes.'s Depo.,
p. 137)).

*6 Following receipt of the 17 March letter, on
23 March 2005, Ghesquiere flew to California and
met with Sances. (Plfs.' Mem. in Supp., p. 7-8;
Defs.' Mem. in Supp., p. 9; Ghes.'s Depo. p. 137).
The parties had dinner at a hotel restaurant in
Solvang, California and discussed the terms of
Sances' 17 March letter. (Plfs.' Mem. in Supp., p.
7-8; Defs.' Mem. in Supp., p. 9). During the discussion, the parties argued about the terms presented in
the letter. (Id.; Sances' 1 Mar. 2007 Aff, ¶¶ 83, 84).
Specifically, Ghesquiere wanted Sances to inspect
and pay for the plants in Canada prior to shipment
but Sances refused to accept these terms. (Plfs.'
Mem. in Supp., p. 8; Defs.' Resp. to Adm., ¶ 11;
Ghes.'s Depo., p. 143; Sances' 1 Mar. 2007 Aff, ¶
88). Plaintiffs allege that Sances and Ghesquiere
parted company that evening without resolving the
dispute and without coming to an agreement. (Plfs.'
Mem. in Supp ., p. 8; Sances' 1 Mar. 2007 Aff., ¶
91). Defendants admit that the parties disagree
about what was said during the discussion. (Defs.'
Mem. in Supp., p. 9). Specifically, Ghesquiere
states the issues of pricing, inspection, and payment
were not serious disputes (Ghes.'s Depo., p. 143)
and he understood their conversation to mean that
Sances still intended to place an order with him.
(Ghes.'s Aff., ¶ 22).
On 24 March 2005, Ghesquiere purchased
$15,950 in Ventana plants in an effort to fulfill
FN9
Sances' alleged order in his 17 March letter .
(Defs.' Mem. in Supp., p. 9; Ghes.'s Aff., ¶ 23).
Subsequently, on 28 March 2005, Sances emailed
Ghesquiere again setting out the terms of his alleged order, which were identical to the terms described in the 17 March letter. (28 Mar. 2005 Letter
(DE # 38-10, 41-8)). Sances also again requested
that Ghesquiere print out the letter, sign where indicated, and return the signed document to Sances.
(Id.). There is no evidence that Ghesquiere printed
out and signed the letter or returned it to Sances, as
requested. (Plfs.' Mem. in Supp., p. 20; Sances' 1
Mar. 2007 Aff., ¶ 94).
FN9. Plaintiffs allege that Ghesquiere did

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not fly to California solely to meet with
Sances, but that he already had the trip
planned to facilitate purchase of the
Ventana plants. (Plfs.' Mem. in Opp. (DE #
47-1), p. 14). Accordingly, plaintiffs contend that Ghesquiere did not purchase the
plants in sole reliance on what transpired
during the parties' 23 March 2005 meeting.
(Id.).
Subsequently, on 19 April 2005, Sances telephoned Ghesquiere and cancelled his order for
plants, including the 200,000 free plants. (Sances'
22 Mar. 2007 Aff. (DE # 47-3), ¶ 12). The next
day, 20 April 2005, Sances spoke with Ghesquiere
again and reiterated his cancellation. (Plfs.' Mem.
in Supp., p. 21; Defs.' Mem. in Supp., p. 10; Ghes.'s
Aff., ¶ 24). On 1 June 2005, Sances memorialized
this cancellation in a letter and demanded payment
of the discount amounts in lieu of plants. (1 Jun.
2005 Letter (DE # 38-11, 41-9)). However, by the
time Ghesquiere received the telephone call on 20
April, defendants allege that they had already purchased the plant material for plaintiffs' order and
begun planting. (Defs.' Mem. in Supp., p. 10-11;
Ghes.'s Aff., ¶ 24). Plaintiffs allege that, as of 20
April, Ghesquiere told Sances that he had not yet
begun planting. (Sances' 22 Mar. 2007 Aff., ¶ 13).
*7 Plaintiffs also allege that defendants have
refused to pay the discounts as demanded (Compl.,
¶ 59). Although defendants deny this allegation in
their answer (Ans., ¶ 60), it appears from their
memorandum that they have not paid plaintiffs the
discounts (see Defs.' Mem. in Supp., pp. 17-19).
B. Plaintiffs' Claim for Anticipatory Repudiation
Plaintiffs argue that Ghesquiere's alleged insistence on altering the terms of the agreement to require inspection and payment prior to shipment
constitutes anticipatory repudiation and therefore a
breach of the agreement. North Carolina case law
defines an anticipatory breach as a “positive, distinct, unequivocal, and absolute refusal to perform
the contract.” Messer v. Laurel Hill Assoc, 378

S.E.2d 220, 223, 93 N.C.App. 439, 443 (1989). The
question of anticipatory repudiation is clearly factspecific. Central to the determination are the discussions that took place between the parties on 23
March in Solvang, California. Whether Ghesquiere
was merely requesting different terms, or insisting
on different terms such that he was refusing to perform on the contract, is subject to dispute and therefore must be determined by the fact finder. Accordingly, plaintiffs' motion should be denied with respect to this issue.
C. Plaintiffs' Claim for Cash Discounts
As indicated, plaintiffs claim that defendants'
failure to pay the discounts after plaintiffs' demand
for them constitutes a breach of the agreement. Defendants contend that because they did not cease
growing strawberry runner tips for plaintiffs and
were ready, willing, and able to provide such plants
to plaintiffs, they were not required to pay the discounts.
The pertinent provision of the agreement reads:
“If Ghesquiere Plant Farms ceases growing strawberry runner tips for Alliance Farm Group, the full
amount of promised discounts will be paid by
Ghesquiere to Alliance Farm Group” (“discount
provision”) (Compl., Ex. A, ¶ 8). When interpreting
this language, the court, as noted, must give the
words their plain meaning. Internet East, Inc., 553
S.E.2d at 87, 146 N.C.App. at 405. The plain meaning of the discount provision appears to be clear.
However, the court cannot view this provision in a
vacuum; it must consider the entire agreement and
ascertain the intent of the parties with respect to the
agreement as a whole. Int'l Paper Co., 385 S.E.2d
at 555, 96 N.C.App. at 316. Viewed in this manner,
the discount provision is manifestly ambiguous, as
the conflicting evidence of the parties indicates.
The principal source of the ambiguity is lack of
any specification as to which parties-plaintiffs or
defendants-have the right to decide whether defendants cease growing plants for plaintiffs. Plaintiffs'
position, reflected in the testimony of Sances, is
that the agreement gives them the prerogative to de-

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termine whether or not defendants cease growing
the plants. (Sances' 1 Mar. 2007 Aff., ¶ 28; Sances'
Depo., pp. 69, 70 (DE # 41-15)). Under this interpretation, plaintiffs could direct defendants not to
grow plants and, instead, take the discounts in cash.
Plaintiffs' position views as irrelevant defendants'
purported readiness to provide plants in 2005 since
plaintiffs had chosen to receive cash discounts instead.
*8 Plaintiffs argue that this interpretation is
consistent with the purpose of the agreement to
compensate them for defendants' provision of unhealthy plants to them in 2003. Plaintiffs contend
that they, as the parties who are to be made whole,
should logically have the right to determine how
that can best be accomplished. This compensatory
purpose is referenced in the agreement itself, which
states: “In consideration of business losses from infected plant material during the 2003 season, and
Alliance Farm's request for reimbursement for over
$500,000 U.S. in expenses from their plug crop ...
[t]he following consideration will be provided by
Ghesquiere Farms....” (Compl., Ex. A, p. 1; see also
id., ¶ 5 (“to further compensate [plaintiffs] for
[their] 2003 losses from infected runner tips”).
Defendants, relying on the testimony of
Ghesquiere, contend that the discount provision
gives them the right to decide whether to grow
plants or pay cash discounts in response to an order
from plaintiffs. (Ghes.'s Depo., pp. 57-58 (DE #
41-16)). Under this interpretation, if defendants
choose to grow and supply plants, plaintiffs are not
entitled to receive cash payment for the discounts
instead. In 2005, defendants represent that they
chose to provide plaintiffs plants in response to
their order and took steps to grow them, and that
plaintiffs' claim for cash discounts is therefore unfounded.
The ambiguity of the discount provision is obviously material to plaintiffs' claim for cash discounts. Plaintiffs' motion for summary judgment
should accordingly be denied with respect to this issue.

D. Defendants' Counterclaim for Plaintiffs' NonPurchase of Plants in 2005
In their counterclaim, defendants allege that,
based on their correspondence with plaintiffs, they
reasonably relied on plaintiffs' order to purchase
strawberry runner tips. When plaintiffs cancelled
their order, defendants had already incurred substantial expense and had ordered and planted the
tips for plaintiffs. Therefore, defendants contend
that plaintiffs breached their agreement to buy from
defendants in 2005 by inducing defendants' performance and then refusing to pay for the plants
that defendants were ready, willing, and able to
FN10
provide.
Plaintiffs deny that any such agreement to buy was formed or that defendants acted
reasonably in proceeding to grow plants for
plaintiffs.
FN10. Defendants' theory assumes that the
settlement agreement did not impose on
plaintiffs an obligation to buy from defendants in 2005 (or 2006), but simply the
right to buy. Under this rationale, a separate agreement would be needed to bind
plaintiffs to making a purchase in 2005 (or
2006). This interpretation appears to be
consistent with the language of the settlement agreement, which speaks only in
terms of defendants' obligation to sell to
plaintiffs in those years. (Compl., Ex. A, ¶
5).
The principal issues presented by defendants'
counterclaim are governed by Article 2 of the North
Carolina Uniform Commercial Code (“UCC”),
N.C.G.S. §§ 25-2-101, et seq., which, of course, applies to contracts for the sale of goods. A contract
for the sale of crops yet to be planted is considered
a future contract for the sale of goods which also
falls within the ambit of UCC Article 2. See
N.C.G.S. §§ 25-2-105(1) (crops included in the
definition of goods), 25-2-105(2) (“present sale of
future goods ... operates as a contract to sell”).
Therefore, any contract between defendants and
plaintiffs for the sale of strawberry plants would be

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governed by the provisions of UCC Article 2.
*9 Here, there are multiple material issues of
fact which preclude the court from granting summary judgment on defendants' counterclaim. Principal among these issues are the following: (1)
whether the UCC statute of frauds applies; (2)
whether the parties entered into an oral contract on
9 March 2005; (3) whether the 17 March letter was
an offer or a confirmatory memorandum of the possible 9 March 2005 contract; (4) whether
Ghesquiere's request on 23 March 2005 for different terms constituted a rejection and counteroffer,
or acceptance of the original offer and proposals for
changes to the contract; and (5) whether it was
reasonable for Ghesquiere to rely on Sances' verbal
and written communications and begin planting
strawberry tips for plaintiffs. Each of these issues is
discussed in greater detail below.
Under the UCC statute of frauds, to be enforceable contracts for the sale of goods in excess of
$500 must be in writing and signed by the party
against whom enforcement is sought, with some
limited exceptions. N.C.G.S. § 25-2-201(1). It does
not appear that plaintiffs ever signed any writing or
contract committing it to the 2005 shipments.
However, one or more of the exceptions may apply,
such as when one party sends a confirmatory writing to another party acknowledging the contract or
when the goods are specially manufactured for the
buyer and not suitable for sale to others. See id. §
25-2-201(2), (3). Issues relating to the statute of
frauds were not addressed by either side in their
briefs.
Another related issue in dispute is whether the
parties reached an oral agreement on 9 March 2005,
which was confirmed by the 17 March letter, or
whether the 17 March letter was merely an offer to
purchase plants that year. The language in the letter
is subject to both interpretations. It begins with a
note from Sances' assistant, stating, “Following is
our Strawberry agreement for the 2005 growing
season. Please sign and return two copies with original signatures. We will sign and return a signed

copy for your records.” (17 Mar. 2005 Letter, p. 1).
The first sentence indicates that an agreement has
already been reached, possibly during the 9 March
2005 telephone conversation. However, the second
and third sentences seem to indicate that the 17
March letter was an offer and by signing the docuFN11
ment Ghesquiere could accept the offer.
Of
course, defendants argue that the first interpretation
was intended and plaintiffs argue that the latter interpretation was intended.
FN11. The North Carolina UCC speaks
directly to methods of acceptance in section 25-2-206(l)(b). Although an order to
buy goods can be construed as inviting acceptance by promise to ship the goods or
actual shipment of the goods, this is only
where the order does not otherwise unambiguously specify the manner for acceptance. N.C.G.S. § 25-2-206(l)(b). If the fact
finder determines that Sances unambiguously specified that the only way to accept
the offer was to sign the 17 March letter
and return a copy to Sances, then beginning performance by purchasing strawberry plant material would not constitute
acceptance.
Further, there are disputes about what transpired during the conversation between Sances and
Ghesquiere in Solvang, California on 23 March
2005. If the 17 March letter is determined to be an
offer, then Ghesquiere may have accepted that offer
and merely suggested different terms during the 23
March meeting. Under the UCC, if acceptance was
made conditional on assent to the different terms,
then no contract was formed. N.C.G.S. §
25-2-207(1). However, if the different terms were
merely suggestions or Ghesquiere's attempt to persuade Sances to change his mind, then perhaps
Ghesquiere did accept the 17 March offer (if construed as an offer), and the different terms were not
made part of the contract. If a contract was formed
on 9 March and the 17 March letter was merely a
confirmatory memorandum, then Ghesquiere may

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still have been merely suggesting different terms at
the 23 March meeting. Certainly, the fact finder
must make a determination about what was said
during the 23 March meeting. Finally, the fact finder must determine whether it was reasonable for
Ghesquiere to begin fulfilling Sances' original order
by purchasing plant material on 24 March 2005
while in California, in light of the disagreement
between Sances and Ghesquiere during the 23
March meeting regarding the time and place of inspection and payment. Clearly there are many disputed factual issues that remain for the fact finder
with respect to defendants' counterclaim. Accordingly, defendants' motion for summary judgment on
this claim should be denied.
IV. PLAINTIFFS' CLAIM REGARDING 2006
PURCHASES PROVIDED FOR IN THE
AGREEMENT
*10 In their pleadings and motions, the parties
focus on liability with respect to the 2004 and 2005
shipments provided for in the agreement, and pay
scant attention to plaintiffs' claim relating to shipments to be made in 2006. The court will therefore
address the claim briefly, finding that plaintiffs are
not entitled to summary judgment on it.
Plaintiffs contend that the alleged breaches
which occurred in 2005 entitle them to recover
damages regarding the shipments to be made in
2006 under the agreement, as well as those to be
made in 2005. Plaintiffs seek payment of cash discounts for 2006. (See Compl., ¶ 63). Under this theory, determination of defendants' liability regarding
any 2006 shipments hinges on resolution of the
same material issues of fact underlying defendants'
liability with respect to the 2005 shipments. These
issues preclude summary judgment with respect to
any 2006 purchases just as they preclude summary
judgment with respect to the 2005 shipments.
Defendants deny any liability with respect to
2006 shipments. In addition to denying any breach
of the agreement, they contend that because
plaintiffs did not order any plants from them in
2006 (a fact that does not appear to be disputed),

they were not under any obligation to provide
plants or discounts in lieu of plants and therefore
did not breach the agreement with respect to any
purchases in 2006. The agreement is ambiguous as
to whether defendants have any obligation to either
grow plants or pay discounts in lieu of plants absent
an order from plaintiffs. There is no provision that
expressly addresses this issue. This ambiguity
provides an additional basis for denying summary
judgment with respect to any shipments to be made
in 2006.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that both plaintiffs' and defendants' motions
for summary judgment be DENIED.
The Clerk shall send copies of this Memorandum and Recommendation to counsel for the respective parties, who have ten business days to file
written objections. Failure to file timely written objections bars an aggrieved party from receiving a de
novo review by the District Judge on an issue
covered in the Memorandum and Recommendation
and, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the
District Judge.
ORDER
LOUISE W. FLANAGAN, Chief United States
District Judge.
This matter comes before the court on the
memorandum and recommendation (“M & R”) of
United States Magistrate Judge James E. Gates (DE
# 59), recommending the court deny the motions
for summary judgment filed by plaintiffs (DE # 39,
corrected as to signature at DE # 43) and defendants (DE # 37). Both sides have filed objections to
the M & R, and the matter is ripe for decision. Except as otherwise noted, the court adopts the M & R
as its own, and denies the motions for summary
judgment. Accordingly, this case shall proceed to
trial.
*11 Also before the court is defendants' motion

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in limine as to parol evidence (DE # 67), filed August 1, 2007. Defendants argue therein that the Settlement Agreement and Addendum are unambiguous, and therefore the court cannot and should not
entertain parol evidence of the parties' intent in entering these contracts, or of possible additional
terms governing the contractual relationship. The
court heard argument on the motion at the final pretrial conference, and took it under advisement. Because the court holds on the motions for summary
judgment that the contracts are ambiguous, the motion in limine is denied.
DISCUSSION
The district court conducts a de novo review of
those portions of a magistrate judge's memorandum
and recommendation to which specific objections
are filed. See 28 U.S.C. § 636(b); Local Civil Rule
72.4(b), EDNC. Those portions of the memorandum and recommendation to which only general
or conclusory objections are lodged may be affirmed by the district court unless clearly erroneous
or contrary to law. See Camby v. Davis, 718 F.2d
198, 200 (4th Cir.1983). Upon careful review of the
record, “the court may accept, reject, or modify, in
whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
636(b)(1).
The court adopts defendants' undisputed first
objection, and notes defendant Strawberry Hill, Inc.
was dissolved by corporate action, not administrative action. The court also adopts defendants' undisputed third objection, and notes that defendants
sought summary judgment in their favor on all of
plaintiffs' claims. The court also adopts defendants'
undisputed fourth objection, and notes Sances did
not accurately quote the Settlement Agreement in
the March 17, 2005 letter to Ghesquiere.
The court declines to adopt the other objections
made by the parties, which are all contested, because of the ultimate determination, after review of
the evidence, that key issues of material fact preclude entry of summary judgment. In so ruling, the
court does not engage in factfinding that is binding

at trial. On motions for summary judgment, the
court does not find facts; it instead reviews the
evidence presented to determine if relevant disputes
preclude entry of judgment. While Fed.R.Civ.P.
56(d) does authorize the determination of certain
facts, which would be binding at trial, the court has
not engaged in such a process on the instant motions, except as noted below.
The court has reviewed the Settlement Agreement and Addendum, and concurs with the magistrate judge's conclusion that several ambiguities
preclude entry of summary judgment. The first such
ambiguity is whether the contracts allow for or preclude plaintiffs' claim for consequential damages
arising from the 2004 shipments. The contracts do
not on their faces address the issue, and they do not
contain integration or merger clauses, nor other indication that they are fully integrated. Accordingly,
the parties may present parol evidence in an attempt
to establish or extinguish the claim to these damages. See Smith v. Central Soya of Athens, Inc., 604
F.Supp. 518, 525-26 (E.D.N.C.1985). Second, ambiguity exists as to the proper construction of the
term “ceases,” as it relates to the 2005 and 2006
seasons, and the court will also entertain parol evidence as the parties' intent vis-à-vis this term. Additionally, the court notes ambiguity as to whether the
Settlement Agreement and Addendum contemplated any need for additional writing(s) to bind the
parties for the sale of a particular number of strawberry runner tips in the years covered by the contracts. (See M & R at 17.)
*12 Because ambiguities appear to exist in the
Settlement Agreement and Addendum, defendant's
motion in limine as to parol evidence must be
denied. This evidence is appropriately considered
where a contract is ambiguous, and both parties can
use the evidence to establish their position as to the
parties' intent in forming the contracts, or to establish the existence of consistent additional terms. See
Smith, 604 F.Supp. at 524. Furthermore, the district
court is fully able to assign the proper weight to the
evidence presented, and the introduction of parol

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 12
Not Reported in F.Supp.2d, 2007 WL 2410595 (E.D.N.C.), 63 UCC Rep.Serv.2d 805
(Cite as: 2007 WL 2410595 (E.D.N.C.))

evidence does not necessarily place either side in
jeopardy of losing on the ultimate issues. C.f.
Schultz v. Butcher, 24 F.3d 626, 631-32 (4th
Cir.1994) (holding evidence should not be excluded
under Fed.R.Evid. 403 on the ground that it is unduly prejudicial, in bench trial, because trial judge
can properly weigh evidence); see also Nat'l R.R.
Passenger Corp. v. Catalina Enterprises, Inc. Pension Trust, 147 Fed. Appx. 378, 384-85 (4th
Cir.2005) (Widener., J., dissenting) (discussing
generally the broader admissibility of evidence in
bench trials).
CONCLUSION
After careful consideration, the court adopts
the memorandum and recommendation of Magistrate Judge Gates as its own, and for the reasons
stated therein, except as modified by this order,
plaintiffs' motion for summary judgment (DE # 39,
corrected as to signature at DE # 43) and defendant's motion for summary judgment (DE # 37) are
hereby DENIED. Additionally, defendant's motion
in limine as to parol evidence (DE # 67) is hereby
DENIED.
SO ORDERED,
E.D.N.C.,2007.
Pacific AG Group v. H. Ghesquiere Farms, Inc.
Not Reported in F.Supp.2d, 2007 WL 2410595
(E.D.N.C.), 63 UCC Rep.Serv.2d 805
END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.