McGill v. Town of Coats, et al
ORDER granting in part and denying in part 65 Motion to Substitute Elizabeth Sue Davis, Adminstratrix of Estate of Mark McGill, for plaintiff Mark McGill - The motion to substitute is DENIED in part with respect to counts one and six, whi ch abate pursuant to North Carolina law. The motion is GRANTED in remaining part as to counts four, nine, eleven, twelve, thirteen, fourteen, sixteen, seventeen, eighteen, nineteen, and twenty. Decedent's mother Elizabeth Sue Davis is hereby SUB STITUTED as the recorded plaintiff in the above captioned action. The court further ORDERS that a joint report from the parties be filed within twenty-one (21) days from date of entry of this order. Signed by District Judge Louise Wood Flanagan on 03/11/2013. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
MARK E. McGILL
THE TOWN OF COATS,
DUNCAN EDWARD JAGGERS,
KELLY W. FIELDS, and ANDY C. LEE,
This matter is before the court on the motion of deceased plaintiff's mother and administratix
of his estate Elizabeth Sue Davis ("Davis") to substitute party pursuant to Federal Rule of Civil
Procedure 25(a) (DE# 65). Defendants have responded in opposition and plaintiff has replied. For
the reasons stated below, Davis' motion is granted in part and denied in part.
STATEMENT OF THE CASE
The instant matter has its genesis in a complaint filed October 1, 2011, by Derek Ballentine
("Ballentine"), David Strickland, and Connie Strickland ("the Stricklands") against the Town of
Coats ("Coats"), Duncan Edward Jaggers ("Jaggers"), Kelly W. Fields ("Fields"), Kenneth M.
Storichs ("Storichs"), Andy C. Lee ("Lee"), and Michael Blackman ("Blackman") (collectively "preseverance defendants") (DE # 1). Ballentine and the Stricklands asserted twenty claims related to
their separate respective arrests and institutions of criminal proceedings against them.
On January 19, 2012, an amended complaint was filed, adding as a plaintiff Mark E. McGill
("plaintiff') (DE# 40). Plaintiffmade thirteen state and federal claims against Coats, Jaggers, Fields
and Lee (collectively "defendants") also arising out of arrests and the institution of criminal
proceedings against him. His state law claims were individual and official capacity state law claims
for false arrest I false imprisonment (counts one and six), and malicious prosecution (counts four and
nine), an alternative official capacity direct claim under the North Carolina Constitution (count
eleven), an individual capacity state law punitive damages claim (count twelve), and an official
capacity negligent hiring, retention, and supervision claim (count thirteen). Plaintiffs federal claims,
made pursuant to 42 U.S.C. § 1983, were for retaliation for engaging in protected speech (count
fourteen), unlawful arrest, detention, and initiation of criminal proceedings (count sixteen),
conspiracy to deprive plaintiff of his civil rights (count seventeen), supervisory liability (count
eighteen), and municipal liability claims for violation of constitutional rights by a decision maker
and for failure to train and supervise (counts nineteen and twenty)
On March 7, 2012, pre-severance defendants moved to sever Ballentine's claims, the
Stricklands' claims, and plaintiffs claims into three separate actions (DE # 52). During the
pendency of said motion, on July 18, 2012, plaintiff died. On August 9, 2012, Davis filed a
suggestion of death (DE# 61), which was served upon all parties and upon Davis that day. Shortly
thereafter, on August 16, 2012, Davis, along with Ballentine and the Stricklands, filed a motion to
substitute Davis for plaintiff (DE # 65). A response in opposition was filed (DE # 72), to which
Davis, Ballentine, and the Stricklands replied.
On September 26, 2012, the court entered order granting the pre-severance defendants'
motion to sever (DE # 75). Said order stayed further progress in this case pending a ruling on the
instant motion to substitute Davis for plaintiff. Issues being ripe for ruling, the court takes up the
motion at this time.
Standard of Review
Federal Rule of Civil Procedure 25(a) governs the substitution of a party in case of death
where the case is already pending before the court. It provides:
(1) Substitution if the Claim Is Not Extinguished. If a party dies and the
claim is not extinguished, the court may order substitution of the proper
party. A motion for substitution may be made by any party or by the
decedent's successor or representative. If the motion is not made within 90
days after service of a statement noting the death, the action by or against the
decedent must be dismissed.
(2) Continuation Among the Remaining Parties. After a party's death, if the
right sought to be enforced survives only to or against the remaining parties,
the action does not abate, but proceeds in favor of or against the remaining
parties. The death should be noted on the record.
(3) Service. A motion to substitute, together with a notice of hearing, must
be served on the parties as provided in Rule 5 and on nonparties as provided
in Rule 4. A statement noting death must be served in the same manner.
Service may be made in any judicial district.
Fed. R. Civ. P. 25(a). The use of federal or state law to determine the survival of a claim
depends on the nature of the claim. Where a federal question is presented federal law governs
survival; where a claim is made under state law, state law governs survival. Fariss v.
Founchy, 769 F.2d 958, 962 n.3 (4th Cir. 1985).
Survival of claims made pursuant to 42 U.S.C. § 1983 are governed by 42 U.S.C. § 1988,
which in turn provides the applicable law is that of the forum state, as long as that law is "not
inconsistent with the Constitution and laws of the United States." See Robertson v. We~mann, 436
U.S. 584,588-89 (1978); see also Dean v. Shirer, 547 F.2d227, 229 (4th Cir. 1976) (Looking to the
law of South Carolina, the forum state, to determine if decedent plaintiffs cause of action under §
1983 survived). Thus, whether a§ 1983 cause of action survives turns on whether an analogous state
law cause of action survives under forum state law. See Dean, 54 7 F .2d at 229-30 (examining which
cause of action plaintiffs § 1983 claim was most analogous to in order to determine if the claim
survived); see also Bass ex rel. Lewis v. Wallenstein, 769 F.2d 1173, 1188 (7th Cir. 1985) ("[T]he
court is to look to the most closely analogous state law to determine survivability."); Jones v.
Geor~e, 533 F. Supp. 1293, 1300 (S.D. W.Va. 1982) ("[t]he survivability of a§ 1983 cause of action
must be determined by deciding whether an identical or analogous cause of action would survive
under state law.").
In this case, no party contests the fact that Davis is a proper party to be substituted. See
Fariss, 769 F.2d at 961-62 (noting administratrix of estate was proper party to move for substitution
under Rule 25(a)( 1)). Nor is there any dispute that the motion to substitute was properly made and
served within 90 days of the suggestion of plaintiffs death. Which, if any, of plaintiffs claims
survived his death, however, is hotly contested by the parties.
Defendants contend that all claims abated with plaintiffs death. Davis maintains all claims,
in some fashion, survive plaintiffs death. As Rule 25(a)( 1) provides that substitution is only proper
for claims that are not extinguished, defendants argue that substitution of Davis is improper as they
argue that all of plaintiffs claims abated with his death.
N.C. Gen. Stat. § 28A-18-1, which governs the survival of state law claims, provides as
(a) Upon the death of any person, all demands whatsoever, and rights to prosecute or
defend any action or special proceeding, existing in favor of or against such person,
except as provided in subsection (b) hereof, shall survive to and against the personal
representative or collector of the person's estate.
(b) The following rights of action in favor of a decedent do not survive:
(1) Causes of action for libel and for slander, except slander oftitle;
(2) Causes of action for false imprisonment;
(3) Causes of action where the relief sought could not be enjoyed, or granting
it would be nugatory after death.
Where all of plaintiffs claims were made under either North Carolina law or§ 1983, § 28A-18-1
controls the survival or abatement of his claims.
Plaintiffs false arrest I false imprisonment and direct North Carolina constitutional
claims (counts one, six, eleven, and sixteen)
N.C. Gen. Stat. § 28A-18-l(b)(2) specifically provides that claims for false imprisonment
do not survive a plaintiffs death. Moreover, "[f]alse arrest is a form offalse imprisonment." Fowler
v. Valencourt334N.C. 345,348,435 S.E.2d 530,532 (1993). Thus,plaintiffsfirstandsixthcounts
abated with his death and are properly dismissed. Davis does not dispute this.
As Davis points out, however, plaintiff pleaded an alternative direct claim under the North
Carolina Constitution for all alleged unconstitutional deprivations of liberty and imprisonment
(count eleven). "In the absence of an adequate state remedy, one whose state constitutional rights
have been abridged has a direct claim against the State under our Constitution." Craig ex rei. Craig
v. New Hanover County. Bd. ofEduc., 363 N.C. 334, 338, 678 S.E.2d 351, 354 (2009) (quotations
omitted). Plaintiffs claims for false arrest and false imprisonment did not survive his death, leaving
no adequate remedy at state law for alleged deprivations of his constitutional rights. Therefore,
plaintiffs estate has a viable direct claim under the North Carolina Constitution for these
deprivations. See Estate of Fennell v. Stephenson, 137 N.C. App. 430, 437, 528 S.E.2d 911, 916
(2000) rev'd on other grounds, 354 N.C. 327,554 S.E.2d 629 (2001) (deceased plaintiffs claim for
unlawful detention and seizure survived as a direct claim under the North Carolina Constitution since
his common law false imprisonment claim statutorily abated). Thus, as counts one and six abated
with plaintiffs death, he has an appropriate direct state constitutional claim in count eleven.
Plaintiffs count sixteen - made under § 1983 and the Fourth and Fourteenth Amendments
for arrest without probable cause, unlawful detention, and unlawful initiation ofcriminal proceedings
- is somewhat analogous to his first and sixth counts, and so would typically abate under
§ 28A-18-1. C.f. Dean, 547 F.2d at 229-30 (holding plaintiffs claim did not abate where it was
analogous to the kinds of claims that survived under the law of South Carolina, the forum state).
However, as plaintiff has viable direct claims for false arrest I false imprisonment under the North
Carolina Constitution under count eleven, count sixteen is most analogous to count eleven and
therefore survives. See State v. Vestal, 278 N.C. 561, 577, 180 S.E.2d. 755, 766 (1971), cert.
denied, 414 U.S. 874 (1973) ("[T]here is no variance between the law of this State as declared by
the decisions of this Court, above cited, and the requirements of the Fourth Amendment as
interpreted by the Supreme Court of the United States.")
Thus plaintiffs counts one and six abate, but his false arrest I false imprisonment claims
survive as a direct claims against the state under the North Carolina Constitution. Because plaintiffs
count sixteen is most analogous to count eleven, it also survives.
Plaintiffs remaining causes of action (counts four, nine, thirteen, fourteen, seventeen,
eighteen, nineteen, twenty)
By its plain language, N.C. Gen. Stat.§ 28A-18-1 allows survival of all but a very specific
set of claims. § 28A-18-1(a) provides that "all demands whatsoever ... except as provided in
subsection (b) hereof, shall survive." Thus, unless a cause of action is specified in § 28A-18-1 (b),
it does not abate with a plaintiffs death. See Mcintyre v. Josey, 239 N.C. 109, 110-11, 79 S.E.2d
202,203, (1953) (interpreting similar language of predecessor statute G.S. § 28-172 and holding that
"all causes of action survive the death of the person in whose favor or against whom they have
accrued, except the causes of action specified."); Brown v. Town ofCazy, 706 F.3d 294,299 (4th
Cir. 2013), (§ 28A-18-1 "prescribes a default rule of survival for all claims.").
In this case, other than the claims for false arrest or false imprisonment discussed above,
plaintiffs state law causes of action are for malicious prosecution and for negligent hiring, retention,
and supervision. Thus, under the plain language of § 28-18-1 and the caselaw interpreting it to
broadly allow for survival of claims, these claims survive plaintiffs death. Plaintiffs federal claims
- other than count sixteen, considered above - are for retaliation for engaging in protected speech,
conspiracy to deprive plaintiff of his civil rights, and failure to train and other supervisory and
municipal liability claims. These claims are not identical or analogous to counts one and six, thus
they too survive plaintiffs death.
Defendants nonetheless argue that under Cloaninier v. McDevitt, 555 F.3d 324 (4th Cir.
2009), these claims abate. In Cloaninier, the Fourth Circuit ruled that under North Carolina law the
plaintiffs claims for false arrest, false imprisonment, and assault and battery abated with his death.
Defendants reliance on Cloaninier is misplaced. The Cloaninier plaintiffs sole basis for his assault
and battery claim was that under North Carolina law "with every false imprisonment allegation, there
is necessarily an allegation of assault." Id. at 335 (citing Hoffman v. Clinic Hosp. Inc., 213 N.C.
669, 197 S.E. 161 (1938)). The Fourth Circuit held that "because Cloaninger presents his assault
and battery claim as nothing more than the necessary implication, under state law, of his false
imprisonment claim, we consider it to be included in the false imprisonment claim abated by his
By contrast, plaintiffs remaining causes of action in this case, while related to his claims in
counts one and six for false imprisonment I false arrest, involve facts and elements that are not
completely encompassed by counts one and six. The remaining causes of action are more than just
"the necessary implication" ofhis false imprisonment claims. Thus Cloaninier does not necessitate
the abatement of plaintiffs other causes of action.
Punitive damages (count twelve)
In North Carolina,"[a] civil action may not be maintained solely for the purpose of collecting
punitive damages but may only be awarded when a cause of action otherwise exists in which at least
nominal damages are recoverable by the plaintiff." Shuiar v. Guill, 304 N.C. 332, 336, 283 S.E.2d
507, 509 (1981 ). Despite the fact that punitive damages are a remedy and not a separate cause of
action, defendants argue that even where underlying causes of action survive the death of a plaintiff,
claims for punitive damages do not. Defendants cite Harrell v. Bowen, 362 N.C. 142, 655 S.E.2d
350, (2008), which held that punitive damages are not available against a deceased defendant.
Harrell is inapposite here. In that case the North Carolina Supreme Court examined N.C.
Gen. Stat. § 1D-1, which provides that the purpose of punitive damages is to "punish a defendant
for egregiously wrongful acts and to deter the defendant and others from committing similar
wrongful acts." Because a decedent defendant "can no longer be punished or deterred for whatever
'egregiously wrongful acts' he may have committed" the court held that a plaintiff may not assert
a claim for punitive damages against that defendant's estate. Harrell362 N.C. at 146.
In this case, all defendants are still alive. Plaintiffs death has no bearing on whether these
living defendants can be punished or deterred. Therefore Harrell's rationale is inapplicable and,
pursuant to North Carolina's "default rule of survival" of claims, plaintiffs claim for punitive
damages has not abated. Brown 706 F.3d at 299.
Nugatoriness of relief sought
Defendants finally urge that any of plaintiffs claims which survive under other provisions
ofN.C. Gen. Stat.§ 28A-18-1 must abate pursuant to§ 28A-18-1(b)(3) as any relief would be
nugatory after death. 1 North Carolina courts have only applied this § 28A-18-1 (b)(3) exception to
prospective remedies. Brown 706 F .3d at 300. The retrospective monetary relief sought in this case
is not nugatory. It can be enjoyed by plaintiffs estate. By contrast, examples of nugatory relief
include an adjudication of incompetence for a deceased person, see In re Higgins, 160 N.C. App.
704, 587 S.E.2d 77 (2003); In re Nebenzabl, 193 N.C. App. 752, 671 S.E.2d 71 (2008), or a divorce
from a deceased party, see Elmore v. Elmore, 67 N.C. App. 661,313 S.E.2d 904 (1984).
Defendants maintain that plaintiffs claims are primarily reputational, personal to him, and
should not survive. Defendants cite no North Carolina law, nor is the court aware of any, holding
that claims for relief for reputational damages are an exception to North Carolina's default rule of
survival of claims. Defendants merely cite Barnes Coal Corp. v. Retail Coal Merchants Ass'n., 128
F .2d 645 (4th Cir. 1942), for the general proposition that "the modem rule as to survivability ... is
Black's Law Dictionary defmes nugatory as "[o]fno force or effect; useless; invalid."
that actions for torts in the nature of personal wrongs, such as slander, libel, malicious prosecution,
etc., die with the person[.]" Id. at 649. Barnes, however, was merely reflecting on the general rule
of survivability at the time, not considering the North Carolina law of survival of claims. Thus, the
relief requested is not nugatory.
Based on the foregoing, the motion to substitute is DENIED in part with respect to counts
one and six, which abate pursuant to North Carolina law. The motion is GRANTED in remaining
part as to counts four, nine, eleven, twelve, thirteen, fourteen, sixteen, seventeen, eighteen, nineteen,
and twenty. Decedent's mother Elizabeth Sue Davis is hereby SUBSTITUTED as the recorded
plaintiff in the above captioned action.
The court further ORDERS that a joint report from the parties be filed within twenty-one (21)
days from date of entry of this order. Said joint report shall be considered with respect to this court's
determination of what changes may be necessary to the current case schedule in order to promote the
just, speedy, and inexpensive determination of the case at issue. Said report may, among other
things, suggest deadlines for conduct of remaining discovery, and other pre-trial events aligned with
those addressed in the case management order.
so ORDERED, this theU...::: day of March, 2013.
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