Ford v. Exelis Systems Corporation et al

Filing 18

ORDER granting 12 Motion to Dismiss. Plaintiff's wrongful discharge claim, tortious interference claim, and equal protection claim are DISMISSED. Signed by Chief Judge James C. Dever III on 10/4/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-328-D

ANTOINETTE L. FORD,

)
}
Plaintiff,

v.

)
}

)

ORDER

}
EXELIS SYSTEMS CORPORATION,
)
SCOTT MEIER, GREGORY ARRINGTON )
and JEFFREY GRAZER,
)
)
Defendants.
)

On July 24, 2017, Exelis Systems Corporation, Scott Meier, Gregory Arrington,_and Jeffrey
Grazer, ("defendants") moved to dismiss Antoinette L. Ford's ("Ford" or ''plaintiff'') tortious
interference with contract claim, equal protection claim, and wrongful discharge in violation of
North Carolina public policy claim [D.E. 12] and filed a memorandum in support [D.E. 13]. See
Fed. R. Civ. P. 12(b)(6). On August 16, 2017, Ford responded in opposition and argued that the
court should. not .dismiss her wrongful discharge in violation ofNorth Carolina public policy claim
[D.E. 15]. Ford did not address defendants' arguments concerning her tortious interference with
contract claim or her equal protection claim. ld. On August 30, 2017, defendants replied [D.E. 17].
As explained below, the court grants defendants' motion to dismiss and dismisses the three claims.
A motion to dismiss under Rule 12(b)(6) tests the legal and factual sufficiency of the
complaint. See Fed. R. Civ. P.12(b)(6);Ashcroftv. Iqbal, 556U.S. 662,678 (2009);Be11Atl. Corp.
v. Twombly, 550 U.S. 544,570 (2007); Coleman v. Md. Court of Appeals, 626F.3d 187, 190 (4th
Cir. 2010),

aff'g, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008);

accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). The court "accepts all well-pled
facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal
sufficiency of the complaint." Nemet Chevrolet. Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250,
255 (4th Cir. 2009); see Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401,405--06
(4th Cir. 2002). The court need not, however, accept as true a complaint's "legal conclusions,
elements of a cause of action, and bare assertions devoid of :further factual enhancement." Nemet
Chevrolet Ltd., 591 F.3d at 255. Moreover, this court can consider documents relied on by the
parties in their briefing if they are integral to and explicitly relied on in the complaint, and their
authenticity is undisputed. See E.l duPont de Nemours and Co. v. Kolon Industries, Inc., 637 F.3d
435, 448 (4th Cir. 2011).
A motion to dismiss under Rule 12(b)(6) "generally cannot reach the merits of an _affirmative
defense, such as the defense that the plaintiff's claim is time-barred." Goodman v. Praxair, Inc., 494
F.3d 458, 464 (4th Cir. 2007) (en bane). Nevertheless, a district court may reach the merits of an
affirmative defense "if all facts necessary to the affirmative defense clearly appear on the face ofthe
complaint." ld. (emphasis omitted). "A complaint showing that the statute of limitations has run
on the claim is the most common situation in which the affirmative defense appears on the face of
the pleading, rendering dismissal appropriate." Brooks v. City ofWinston-Salem, N.C., 85 F.3d 178,
181 (4th Cir. 1996) (quotation omitted). Thus, failure to comply with the statute of limitations is
"a recognized basis for dismissal" under Rule 12(b)(6). Evans v. Trinity Indus., Inc., 137 F. Supp.
3d 877, 881 (E.D. Va 2015); see Brooks, 85 F.3d at 181; West v. ITT Cont'l Baking Co., 683 F.2d
845, 846 (4th Cir. 1982).
Defendants' motion to dismiss requires the court to consider the Ford's two state-law claims,
which both arise under North Carolina law. Accordingly, the court must predict how the Supreme
2

Court of North Carolina would rule on any disputed state-law issue. See Twin Ciey Fire Ins. Co. v.
Ben Arnold-Sunbelt Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005). In doing so, the court
must look first to opinions of the Supreme Court of North Carolina. See Stahle v. CTS Corp., 817
F.3d 96, 100 (4th Cir. 2016). If there are no governing opinions from the Supreme Court ofNorth
Carolina, this court ''may consider lower court opinions[,] ... treatises, and the practices of other
states." Twin Ciey Fire Ins. Co., 433 F.3d at 369 (quotation omitted). 1 In doing so, a federal court
"should not create or expand [a] [s]tate's public policy." Time Warner Entm't-Advance/Newhouse
P'ship v. Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007) (first
alteration in original) (quotation omitted); Wade v. Danek Med.• Inc., 182 F.3d 281,286 (4th Cir.
1999). Moreover, in predicting how the highest court of a state would address an issue, this court
must ''follow the decision of an intermediate state appellate court unless there is persuasive data that
the highest court would decide differently." Toloczko, 728 F.3d at 398 (quotation omitted).
Ford's tortious interference with contract claims arose on May 31, 2013. See Compl. [D.E.
1-1] mf 36-51. Ford did not :file suit until May 31,2017. See [D.E. 1] ~ 1. North Carolina's threeyear statute of limitations bars this claim. See N.C. Gen. Stat. § 1-52(1); Scott v. Town of
Tay1orto~ No.

1:13-cv-834, 2014 WL4114313, at *11 (M.D.N.C. Aug. 20, 2014)(unpublished);

Phillips v. Pitt Cty. Mem'l Hosp., Inc., 222 N.C. App. 511, 520, 731 S.E.2d 462, 468-69 (2012).
Thus, the court dismisses the claim.
As for Ford's equal protection claim (Compl.

mf 78-84}, defendants are not state actors.

Thus, the court dismisses the claim. See, e.g., Dowe v. Total Action Against Poveey in Roanoke
Valley, 145 F.3d 653, 658-60 (4th Cir. 1998).

1

North Carolina does not have a mechanism to certify questions of state law to its Supreme
Court. See Town ofNags Head v. Toloczko, 728 F.3d 391, 397-98 (4th Cir. 2013).
3

As for Ford's wrongful discharge claim in violation ofNorth Carolina public policy claim,
Ford relies on N.C. Gen. Stat. § 143-422.2 as the source of North Carolina's public policy and
alleges that defendants terminated her employment due to her race and sex. See Compl. W12-35.
Ford cannot pursue her wrongful discharge claim against defendants Meier, Arrington, and Grayer
because they are individuals and are not considered "employers" under North Carolina law. See
Inglesias v. Wolford, 539 F. Supp. 2d 831, 840 (E.D.N.C. 2008) (collecting cases). Thus, the court
dismisses the claim against those three defendants.
As for defendant Exelis Systems Corporation, Ford's wrongful discharge claim is subject to

a three-year statute of limitations. See, ~' Harris v. Cmty Alts., No. 5: 11-CV-52-D, 2011 WL
2111851, at *2 (E.D.N.C. May26, 2011) (unpublished) (collecting cases). Ford was discharged on
May 31,2013, butdidnotfile suit until May 31,2017. See [D.E. 1-1] 4; Compl. W12-35. Thus,
North Carolina's three-year statute of limitation appears to bar her claim.
In opposition, Ford argues that the North Carolina General Assembly eliminated her wrongful
'

discharge cause of action on March 23, 2016, and restored the cause of ruftion on July 18, 2016. See
[D.E. 13] 3-4. According to Ford, she had one year from July 18, 2016, to file her wrongful
discharge claim. See id. at 3-6. Thus, Ford contends that her wrongful discharge claim is timely.
"[W]hen a statute of limitations is shortened by legislative amendment, a reasonable time is
given for the commencement of an action before the amended statute works a bar." Gannon v.
Champion Residential Servs.• Inc., No. 3:16CV756-RJC-DSC, 2017 WL 780882, at *2 (W.D.N.C.
Feb. 3, 2017) (unpublished) (quotation and alteration omitted). A "[r]easonable time shall be the
balance of the time unexpired according to the law as it stood when the amending act is passed,
provided it shall never exceed the time allowed by the new statute." ld. (quotation and alteration

4

omitted); see Carson v. Norfolk & C.R. Co., 128 N.C. 95, 38 S.E. 287, 288 (1901); Culbreth v.
Dowing, 121 N.C. 205, 28 S.E. 294, 294-95 (1897); Reunion Land Co. v. Vill. ofMarvin, 129 N.C.
App. 249,251,497 S.E.2d446, 448 (1998); Spauldingv. R.J. Reynolds Tobacco Co., 93 N.C. App.
770, 773, 379 S.E.2d 49, 51 (1989), aff'd, 326 N.C. 44, 387 S.E.2d 168 (1990).
The limitations period for Ford's cause of action ran from May 31, 2013, until the General
Assembly eliminated her wrongful discharge cause of action on March 23, 2016, by enacting North
Carolina General Assembly House Bi112, S.L. 2016-3 ("HB2"). At that point, Ford had two months
and eight days of unexpired time remaining before the three-year statute oflimitations would have
run. On July 18, 2016, the North Carolina General Assembly enacted House Bill169, S.L. 2016-9
("HB 169"), which restored Ford's wrongful discharge cause of action, but with a one-year statute
of limitation. Accordingly, on July 18,2016, Ford's wrongful discharge claim was viable, but she
had to file within the shorter of(l) her remaining unexpired time (i.e., two months and eight days)
or (2) the new one-year statute of limitations.
\

See,~'

Ganno!l, 2017 WL 780882, at *2; Reunion

Land Co., 129N.C. App. at251, 497 S.E.2dat448; Spaulding, 93 N.C. App; at 773,379 S.E.2dat
49. Because Ford did not file her wrongful discharge claim by September 26, 2016 (i.e., two months
and eight days after July 18, 2016), her wrongful discharge claim is untimely. Thus, the court
dismisses the claim.
In sum, the court GRANTS defendants partial motion to dismiss [D.E. 12] and DISMISSES

plaintiff's wrongful discharge claim, tortious interference claim, and equal protection claim.
SO ORDERED. This_±_ day of October 2017.

Chiefi.United States District Judge

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