Atad et al v. Atad

Filing 41

ORDER granting 34 Motion for Summary Judgment as to the claims for assault, battery, and false imprisonment. The trial in this matter, currently set for this court's January 26, 2015 term, will be held as to liability and damages for lA' s claim of intentional infliction of emotional distress, as well as the issue of damages for the lA's claims of assault, battery, and false imprisonment. The parties are reminded to read the order in its entirety for further information. Signed by Senior Judge James C. Fox on 1/12/2015. Certified copy of order sent to Jeffrey Basil Atad, 1148 N. Pershing Ave., Stockton, CA 95203-2144 by US Mail on 10/23/2014. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-416-F
ROSANNA DEE ATAD, a/k/a,
ROSANNA DEE GRANADOS,
and
IA, a minor child,
by her mother ROSANNA DEE ATAD,
Plaintiffs,

v.
JEFFREY BASIL AT AD,
Defendant.

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ORDER

This matter is before the court on PlaintiffiA's Motion for Summary Judgment [DE-34].
The defendant has failed to respond and the matter is ripe for resolution. For the reasons stated
herein, the motion is ALLOWED IN PART and DENIED IN PART.

PROCEDURALANDFACTUALBACKGROUND
IA brings claims for assault, battery, false imprisonment, and intentional infliction of
emotional distress. These claims arise out of a domestic assault in which the defendant attacked
his wife, Plaintiff Rosanna Atad ("Mrs. Atad"), and daughter, IA. The defendant failed to
respond to any of the plaintiffs' requests for admissions and the court treats those facts as
admitted. Mrs. Atad has also filed a declaration in support ofiA's motion for summary
judgment. See Declaration of Rosanna Dee Atad [DE-34-2]. Those facts show the following.

The defendant is a special forces operator in the United States Army and is trained in
hand-to-hand combat. See Requests for Admission [DE-21-2] at 5. On June 10,2010, the
defendant used these skills to brutally attack his wife and infant daughter. See Decl. [DE-34-2] at
2. Mrs. Atad had just picked up lA after informing the defendant that she was going to leave
him. Id. The defendant blocked their exit with clenched fists, at which point Mrs. Atad asked the
defendant, "[W]hat are you going to do?" ld. The defendant replied, "I'm going to kill you," and
lunged forward, grabbing Mrs. Atad by the head and slamming it to the ground. ld. lA, who had
been in her mother's arms, fell to the ground and struck her head. ld. at 3. She rolled out of her
mother's arms and began "screaming and crying in pain." ld.
Mrs. Atad repeatedly tried to escape, but the defendant viciously punched his wife,
slammed her head against a wall, bound and gagged her, and nearly strangled her to death. Id. at
3-4. The defendant also verbally threatened to kill Mrs. Atad before and throughout the physical
attack, including telling her that "lA will grow up without a Mother and a Father." See id.; see
also Reqs. Admis. [DE-21-2] at 6. After feigning death, Mrs. Atad heard an unknown voice at
the door. Decl. [DE-34-2] at 4. She ran to the door and found a police officer there. Id. Mrs. Atad
suffered severe physical and emotional injuries as a result of the attack. See id. at 5.
lA was diagnosed with a concussion and contusion below her eye. ld. at 4. Following the
attack, she "bled from her nose, vomited on two occasions, and awoke in the middle of the night
screaming." ld. Following the attack, lA manifiested such symptoms as "loss of balance and
coordination to the point of colliding into walls or falling," as well as "anxiety and ... night
terrors." Id. at 5. According to the briefs for this and the previous motion for summary judgment,
Mrs. Atad and lA have had to relocate out of fear that the defendant will attack them again.

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After the defendant failed to respond to written discovery requests, the plaintiffs filed a
motion for summary judgment on all their claims. The court has sent the defendant two Roseboro
notices specifically advising him that failure to respond to the motions may result in judgment
being entered against him. See Roseboro Letter [DE-22, -39]; see also Roseboro v. Garrison, 528
F.2d 309 (4th Cir. 1975). The defendant did not respond to the original motion for summary
judgment [DE-21] nor to this motion for summary judgment. The court allowed in part and
denied in part the original motion for summary judgment, allowing the motion as to Mrs. Atad's
intentional tort claims while denying the remaining portions of the motion. See Order of August
26, 2014 [DE-26].
DISCUSSION

Summary judgment is appropriate when (1) no genuine issues of material fact exist and
(2) the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the initial burden of
coming forward and demonstrating the absence of a genuine issue of material fact. See Celotex

Corp. v. Catrett, 477 U.S. 317,323 (1986). When making a summary judgment determination,
the court must view the facts and make all reasonable inferences in the light most favorable to
the non-movant. Liberty Lobby, 477 U.S. at 255. Once the moving party has met its burden, the
non-moving party must then come forward and demonstrate that an issue of fact does indeed
exist. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Where a party fails to respond to requests for admissions under Rule 36 of the Federal
Rules of Civil Procedure, the facts contained in the requests for admissions are deemed admitted.
Fed. R. Civ. P. 36(a)(3); Carney v. IRS, 258 F.3d 415,418-19 (5th Cir. 2001). These admissions

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can support entry of summary judgment. Adventis, Inc. v. Consol. Prop. Holdings, Inc., 124 F.
App'x 169, 173 (4th Cir. 2005) ("Rule 36 admissions are conclusive for purposes ofthe
litigation and are sufficient to support summary judgment.") (quoting Langer v. Monarch Life
Ins. Co., 966 F.2d 786, 803 (3d. Cir. 1992)). A party moving for summary judgment may also

support its motion using affidavits or declarations. See Fed. R. Civ. P. 56(c)(1)(A).
Here, the court finds that the facts contained in the admissions and Atad declaration
establish liability for lA's claims of assault, battery, and false imprisonment. Counsel's brief
explains why the defendant's admissions, along with the Atad declaration, support liability as to
each of those three intentional tort claims under North Carolina law and the court adopts that
reasoning herein. See Memorandum in Support ofiA's Motion for Summary Judgment [DE-341] at 7-10.
As to lA' s claim for intentional infliction of emotional distress, that claim requires a
showing of three elements: "(1) extreme and outrageous conduct, (2) which is intended to cause
and does cause (3) severe emotional distress to another." Dickens v. Puryear, 302 N.C. 437, 452,
276 S.E.2d 325, 335 (1981 ). "The tort may also exist where defendant's actions indicate a
reckless indifference to the likelihood that they will cause severe emotional distress." Id. The
defendant's actions were certainly extreme and outrageous. Those actions may have also risen to
the level of reckless indifference discussed in Dickens. However, the court is unable to determine
at this time whether lA, an infant of twenty-two months at the time of the attack, was able to
experience severe emotional distress as opposed to mere fear. Because of this, the court reserves
for trial the issue of liability as to lA' s claim for intentional infliction of emotional distress. The
parties should be prepared to present evidence on this matter, particularly as it concerns an

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infant's ability to experience severe emotional distress. Such a showing may require the
testimony of opinion or expert witnesses.
CONCLUSION

For the foregoing reasons, lA's motion for summary judgment is ALLOWED as to her
claims for assault, battery, and false imprisonment. The trial in this matter, currently set for this
court's January 26, 20 15 term, will be held as to liability and damages for lA' s claim of
intentional infliction of emotional distress, as well as the issue of damages for the lA's claims of
assault, battery, and false imprisonment.
SO ORDERED.
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This, theg day of January, 2015.

nior United States District Judge

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