CLARK v. RUSSELL, et al

Filing 33

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 2/23/2012; that the Motion to Dismiss Pursuant to 12(b)(1) and 12(b)(6) filed by Defendants the Law Firm of Plummer, Belo & Russell, PA and Vernon Russell (Docket Entry 12 ) be granted in part, in that the Court should dismiss this action for lack of subject matter jurisdiction. FURTHER, that, in the alternative, Defendant Foot Locker, Inc.'s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) for Failure to State a Claim Upon Which Relief Can be Granted and Memorandum in Support Thereof (Docket Entry 8 ) be granted and the Motion to Dismiss Pursuant to 12(b)(1) and 12(b)(6) filed by Defendants the Law Firm of Plummer, B elo & Russell, PA and Vernon Russell (Docket Entry 12 ) be granted in part, in that the Court should dismiss this action for failure to state a claim upon which relief can be granted. FURTHER, that Plaintiff's Motion to Strike Defendant's Motion to Dismiss & Brief in Support (Docket Entry 18 ), Motion to Compel Each Party to Have Separate Counsel to Avoid Conflict of Interest; Brief in Support (Docket Entry 19 ), and Motion to Dismiss Defendants [sic] Motion to Dismiss (Docket Entry 20 ) be denied as moot. (Lloyd, Donna)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOHN R. CLARK,

)
)
Plaintiff,
)
)
v.
)
)
VERNON RUSSELL, Individually
)
and as an attorney, LAW FIRM
)
OF PLUMMER, BELO & RUSSELL, PA, )
and FOOT LOCKER INC.,
)
)
Defendants.
)

1:11CV526

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

matter

comes

before

the

undersigned

United

States

Magistrate Judge for a recommendation on (1) Defendant Foot Locker,
Inc.’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) for
Failure to State a Claim upon which Relief can be Granted and
Memorandum in Support Thereof (Docket Entry 8); (2) the Motion to
Dismiss Pursuant to 12(b)(1) and 12(b)(6) (Docket Entry 12) filed
by Defendants the Law Firm of Plummer, Belo & Russell, PA and
Vernon Russell; (3) the Motion to Strike Defendant’s Motion to
Dismiss & Brief in Support (Docket Entry 18) filed by Plaintiff;
(4) the Motion to Compel Each Party to have Separate Counsel to
Avoid Conflict of Interest; Brief in Support (Docket Entry 19)
filed by Plaintiff; and (5) the Motion to Dismiss Defendants [sic]

Motion to Dismiss (Docket Entry 20) filed by Plaintiff.1

For the

reasons that follow, Defendants the Law Firm of Plummer, Belo &
Russell, PA (“Plummer, Belo & Russell, PA”) and Vernon Russell’s
(“Russell’s”) motion to dismiss should be granted in part in that
the Court should dismiss this action for lack of subject matter
jurisdiction.
(“Foot

In the alternative, Defendant Foot Locker Inc.’s

Locker’s”)

motion

to

dismiss

should

be

granted

and

Defendants Plummer, Belo & Russell, PA and Russell’s motion to
dismiss should be granted in part in that the Court should dismiss
this action for failure to state a claim upon which relief can be
granted. In addition, the Court should deny Plaintiff’s motions as
moot.2
Background
Plaintiff, proceeding pro se, alleges that he “was in a
criminal proceeding in Cabarrus County Courthouse on November 6th,
2001,” in which Plaintiff “was blamed for approximately $30,000
worth of inventory that was stolen” from a Foot Locker store.
(Docket Entry 1 at 1, 3.)

At that time, Plaintiff hired Defendant

Russell of Plummer, Belo & Russell, PA as defense counsel.

(See

1

For ease of reading, in citing Plaintiff’s filings, the
undersigned utilizes standard capitalization conventions.
2

Plaintiff’s Motion to Strike Defendant’s Motion to Dismiss
& Brief in Support (Docket Entry 18) and Motion to Dismiss
Defendants [sic] Motion to Dismiss (Docket Entry 20) actually
constitute responses to Defendants’ motions to dismiss.
-2-

id. at 1.)

Plaintiff alleges that Russell “[took] sides against

[Plaintiff] by giving false information to the courthouse which
[led] to the wrongful conviction on the [P]laintiff.”

(Id.)

Plaintiff

false

also

asserts

that

Foot

Locker

“submitt[ed]

information about the [P]laintiff to the authorities.”

(Id.)

In July 2011, Plaintiff filed the instant action alleging
three claims for “Defamation of Character and Slander” (id. at 2),
as well as claims for “Intentional affliction [sic] of emotional
distress, mental abuse and verbal abuse” (id.); “Neglectant [sic]
Hiring” (id. at 3); “Conflict of Interest, Malpractice and Abuse of
authority” (id.); “Negligence and Gross Negligence” (id.); and
“Malicious Prosecution and Violation of Right to a Fair Trial”
(id.) against Defendants Russell and Plummer, Belo & Russell, PA.
Against Defendant Foot Locker, Plaintiff asserts two claims for
“Defamation of Character and Slander” (id. at 3-4), as well as
claims for “Intentional Affliction [sic] of emotional distress,
mental abuse and verbal abuse” (id. at 4); “Malicious Prosecution
and Violation of Right to a fair trial” (id.); “Violation of Right
to earn a fair wage” (id.); “Negligence and Gross Negligence”
(id.); and “Mental Anguish and Outrageous Conduct” (id.).
Although all of Plaintiff’s claims constitute state law tort
causes of action, Plaintiff contends that this Court has federal
question jurisdiction because his action is brought “under 42
[U.S.C. §§] 1981, 1983, and 1985” (id. at 1) and because “[t]his
-3-

Complaint is based off” the 13th, 14th, 15th and 16th Amendments of
the United States Constitution (id.).
Defendants

filed

motions

to

dismiss

contending

that

Plaintiff’s Complaint fails to state a claim upon which relief can
be granted as Plaintiff’s claims are either not recognized causes
of action or, for those that are recognized causes of action, the
applicable statute of limitations period has run.
Entry 12 at 1; see also Docket Entry 8 at 1.)

(See Docket

Defendants Russell

and Plummer, Belo & Russell, PA further contend that the Court
lacks subject matter jurisdiction.

(See Docket Entry 12 at 1.)

Existence of Subject Matter Jurisdiction
Because subject matter jurisdiction constitutes a threshold
question, see Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94 (1998), the Court should address that issue first.
I.

Standard
United States District Courts exercise two primary types of

subject matter jurisdiction: federal question jurisdiction under 28
U.S.C. § 1331 and diversity of citizenship jurisdiction under 28
U.S.C. § 1332.

Federal courts may also preside over state law

claims in conjunction with federal law claims if said state law
claims are “so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy
. . . .”

28 U.S.C. § 1367(a).

A district court must dismiss an

-4-

action if it lacks subject-matter jurisdiction. See Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006) (“[W]hen a federal court concludes
that it lacks subject matter jurisdiction, the court must dismiss
the complaint in its entirety.”).
“[T]he party invoking federal jurisdiction bears the burden of
establishing its existence.” Citizens for a Better Env’t, 523 U.S.
at 103-04.

Moreover, “[i]t is not sufficient . . . to merely

assert a constitutional violation.”
650

(4th

Cir.

1988)

(citation

Davis v. Pak, 856 F.2d 648,

omitted).

Rather,

“[f]ederal

jurisdiction requires that a party assert a substantial federal
claim.”

Id.

determination

Accordingly,
of

subject

a

district

matter

court

jurisdiction

may

address

a

by

“find[ing]

insufficient allegations in the pleadings, viewing the alleged
facts in the light most favorable to the plaintiff, similar to an
evaluation pursuant to Rule 12(b)(6).” Lovern v. Edwards, 190 F.3d
648, 654 (4th Cir. 1999) (citing Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982)).

Furthermore, “[w]hen a defendant challenges

subject matter jurisdiction pursuant to Rule 12(b)(1), the district
court is to regard the pleadings as mere evidence on the issue, and
may consider evidence outside the pleadings without converting the
proceedings to one for summary judgment.”

Evans v. B.F. Perkins,

Co., 166 F.3d 642, 647 (4th Cir. 1999).
In construing Plaintiff’s Complaint in a context similar to an
evaluation under Fed. R. Civ. P. 12(b)(6) as outlined above, the
-5-

undersigned notes the Supreme Court has reiterated that “[a]
document filed pro se is to be liberally construed, and a pro se
complaint,

however

inartfully

pleaded,

must

be

held

to

less

stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and
quotation marks omitted).

However, the United States Court of

Appeals for the Fourth Circuit has “not read Erickson to undermine
[Bell Atlantic Corp. v.] Twombly’s[, 550 U.S. 544, 570 (2007),]
requirement

that

a

pleading

contain

more

than

labels

and

conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th
Cir. 2008) (internal quotation marks omitted) (applying Twombly
standard in dismissing pro se complaint); accord Atherton v.
District of Columbia Off. of Mayor, 567 F.3d 672, 681–82 (D.C. Cir.
2009) (“A pro se complaint . . . ‘must be held to less stringent
standards than formal pleadings drafted by lawyers.’

But even a

pro se complainant must plead ‘factual matter’ that permits the
court to infer ‘more than the mere possibility of misconduct.’”
(quoting Erickson, 551 U.S. at 94, and Ashcroft v. Iqbal, 556 U.S.
662, ___, 129 S. Ct. 1937, 1950 (2009), respectively)).
II. Discussion
Plaintiff

asserts

that

the

Court

has

federal

question

jurisdiction over the instant matter pursuant to 28 U.S.C. § 1331.

-6-

(See Docket Entry 1 at 1).3

Specifically, Plaintiff contends

initially that the case is brought “under 42 [U.S.C. §§] 1981,
1983, and 1985.”

(See id.)

With respect to 42 U.S.C. § 1981, in order to state a claim,
Plaintiff “must allege that he is a member of a racial minority,
that the defendant intended to discriminate against him on the
basis of race, and that the discrimination concerned one of the
statutorily enumerated rights.”

Emory Utils., Inc. v. Time Warner

Cable, Inc., No. 7:09-CV-169-BO, 2010 WL 2402888, at *2 (E.D.N.C.
June 11, 2010) (unpublished) (citing Spriggs v. Diamond Auto Glass,
165 F.3d 1015, 1018 (4th Cir. 1999)).
any such allegations.

Plaintiff’s Complaint lacks

In fact, the Complaint’s only reference to

race states that “Vernon Russell is an afro American attorney who
practices

law

in

Cabarrus

County.”

(Docket

Entry

1

at

1.)

Moreover, Plaintiff’s other filings with the Court eliminate any
basis to find that the instant action falls under 42 U.S.C. § 1981.
In particular, Plaintiff’s Motion to Strike Defendant’s Motion to
Dismiss & Brief in Support states: “This complaint is not based on
race or discrimination.
as

the

defendant

However, the plaintiff’s race is the same

Vernon

Russell;

3

therefore

the

argument

of

The Complaint does not allege jurisdiction based on
diversity of citizenship and the filings show that Plaintiff,
Plummer, Belo & Russell, PA, and Russell are residents of North
Carolina. (See Docket Entry 1 at 1-2; Docket Entry 3 at 1.)
-7-

discrimination and race is futile in this case.”

(Docket Entry 18

at 1.)
Plaintiff’s Complaint similarly lacks assertions to support a
claim under 42 U.S.C. § 1983.

“To state a claim under § 1983, a

plaintiff must aver that a person acting under color of state law
deprived him of a constitutional right or a right conferred by a
law of the United States.”

Wahi v. Charleston Area Med. Ctr.,

Inc., 562 F.3d 599, 615 (4th Cir. 2009), cert. denied, 130 S. Ct.
1140, 175 L. Ed. 2d 991 (2010). Even reading Plaintiff’s Complaint
liberally in light of Plaintiff’s pro se status, see Erickson, 551
U.S. at 94, no basis exists to infer that any of the Defendants
acted under color of state law, as Plaintiff has alleged in
conclusory fashion (see Docket Entry 1 at 1 (“Both defendants
are/or [sic] acting under color of state law.”)).

Furthermore,

with

Circuit

respect

to

Defendant

Russell,

the

Fourth

has

specifically held that a “private attorney who is retained to
represent a criminal defendant is not acting under color of state
law, and therefore is not amenable to suit under § 1983.”
Potts, 547 F.2d 800, 800 (4th Cir. 1976).

Deas v.

As “the under-color-of-

state-law element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful,”

Mentavlos v.

Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (internal quotation
marks and citations omitted), Plaintiff has failed to allege a
cause of action arising under 42 U.S.C. § 1983.
-8-

Plaintiff also asserts that his Complaint is brought under 42
U.S.C. § 1985.

(See Docket Entry 1 at 1.)

All three subsections

of Section 1985 require proof of a conspiracy.
§ 1985(1), (2) and (3).

See 42 U.S.C.

Plaintiff’s Complaint lacks any factual

assertions that would establish a conspiracy.

(See Docket Entry

1.)
Further,

Section

1985(1)

relates

to

interference

performance of a plaintiff’s official duties.

in

the

See 42 U.S.C.

§ 1985(1); Stankowski v. Farley, 251 Fed. Appx. 743, 747 n.1 (3d
Cir. 2007) (“Section 1985(1) prohibits conspiracies to prevent
individuals from holding office or discharging official duties.”).
Again, Plaintiff’s Complaint does not allege such matters.

(See

Docket

acts

Entry

1.)

Similarly,

Section

1985(2)

addresses

involving either “force, intimidation, or threat” to obstruct
justice or obstruction of justice aimed at undermining equal
protection of the law, see 42 U.S.C. § 1985(2); Stankowski, 251
Fed. Appx. at 747 n.1 (“Section 1985(2) prohibits conspiracies to
prevent witnesses from testifying in court, injuring witnesses who
have testified, or attempting to influence or injure grand or petit
jurors.”), but Plaintiff’s Complaint contains no such factual
allegations

(see

Docket

Entry

1).

Finally,

Section

1985(3)

requires proof of “some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’ action.”
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
-9-

Plaintiff’s

Complaint lacks any such factual allegations. (See Docket Entry 1;
see also Docket Entry 18 at 1.)

Section 1985 thus provides no

basis for federal jurisdiction in this case.
Plaintiff goes on to contend that his Complaint “is based off”
the 13th, 14th, 15th and 16th Amendments to the United States
Constitution. (Docket Entry 1 at 1.) Additionally, in Plaintiff’s
Motion to Dismiss Defendants [sic] Motion to Dismiss (Docket Entry
20), Plaintiff provides a somewhat lengthy, but wholly inadequate,
explanation of his various bases for federal jurisdiction:
The Party Injured herein has brought a complaint,
evoking [sic] this court’s jurisdiction pursuant to 28
U.S.C. section 1331. Raising the federal question of
Constitutional Violations including violations of the
4th, 5th, 6th, and 8th Amendments to the United States
Constitution as purviewed [sic] through the 14th
Amendment. He has raised the federal question of
violations of the Speedy Trial Act [as a separate
violation from the 6th Amendment].
The Party Injured has evoked [sic] this court’s
jurisdiction pursuant to 28 U.S.C. section 1343(a)
showing a violation of 42 U.S.C. section 1983, 1985, and
1986 as he has alleged that the defendants herein were
either: 1. Acting under the color of state law, or
2. Were acting in concert with said actors, or
3. Ratified the actions of said actors and maintained a
policy and custom of such acts and that said actions
caused damages to the Party Injured, [sic]. Further the
Party Injured maintains that the actors were acting in
disguise as “persons with delegated authority” to be
doing said acts, or being aware of said wrongful acts
engaged in the furtherance thereof, or neglected to
prevent said acts.
The Party Injured makes reference to 1 U.S.C.A.
section 1, 26 U.S.C. section 7805(a), 27 Code of Federal
Regulations section parts 170, 270, 275, and 285 in
reference to 26 U.S.C. section 7212 to show that said
-10-

acts were
authority.

done

unreasonably

without

delegation

of

(Id. at 2-3.)
In sum, Plaintiff’s filings offer no credible explanation or
factual support for how his state law tort claims fall under the
cited Amendments to the United States Constitution or provisions of
the United States Code.

(See Docket Entries 1, 18, 19, 20.)

Plaintiff’s mere assertions that his claims arise under federal law
do not suffice.

As such, the Court should dismiss Plaintiff’s

action for lack of subject matter jurisdiction.
Failure to State a Claim
Even if the Court found a federal jurisdictional basis for
Plaintiff’s action, Plaintiff has failed to state a claim upon
which relief may be granted.
Plaintiff’s
limitations.
11-12.)

claims

are

Defendants assert specifically that

barred

by

the

applicable

statutes

of

(See Docket Entry 8 at 3-4; Docket Entry 13 at

With the possible exception of Plaintiff’s claims for

intentional infliction of emotional distress, Defendants’ argument
has merit.
A motion to dismiss filed under Fed. R. Civ. P. 12(b)(6)
generally “cannot reach the merits of an affirmative defense, such
as the defense that the plaintiff’s claim is time-barred.

But in

the relatively rare circumstances where facts sufficient to rule on
an affirmative defense are alleged in the complaint, the defense
-11-

may be reached by a motion to dismiss filed under Rule 12(b)(6).
This principle only applies, however, if all facts necessary to the
affirmative

defense

‘clearly

appear[]

on

the

face

of

the

complaint.’” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.
2007) (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4
F.3d 244, 250 (4th Cir. 1993)).
The

instant

action

presents

an

example

of

the

“rare

circumstances where facts sufficient to rule on an affirmative
defense are alleged in the [C]omplaint . . . .”
at 464.

Goodman, 494 F.3d

A fair, and liberal, reading of Plaintiff’s Complaint

reveals that Plaintiff alleges the following recognized causes of
action:

1)

defamation;

2)

libel;

3)

slander;

4)

intentional

infliction of emotional distress; 5) malicious prosecution; 6)
professional negligence; and 7) negligence/gross negligence.4

The

relevant statutes of limitations periods for each of Plaintiff’s
recognized causes of action, with the exception of Plaintiff’s
claim for intentional infliction of emotional distress, are as
follows:
4

No independent civil causes of action for violation of
right to a fair trial, violation of right to earn a fair wage,
mental abuse, verbal abuse, outrageous conduct or mental anguish
exist to the knowledge of the undersigned.
Accordingly, said
claims should be dismissed.
See, e.g., Clark v. O’Rourke, No.
3:10-cv-527 RJC-DCK, 2011 WL 1399803, at *1 (W.D.N.C. Apr. 13,
2011) (unpublished) (adopting Magistrate Judge’s recommendation of
dismissal as to claims of “co-employment, verbal abuse, violation
of right to earn a fair wage, and outrageous conduct . . . because
they were not cognizable legal claims”).
-12-

•

Defamation, Libel and Slander: The applicable statute of
limitations for defamation, libel, and slander is one year
from the time the cause of action accrues.
§ 1-54(3).

N.C. Gen. Stat.

The cause of action “accrues at the date of the

publication of the defamatory words, regardless of the fact
that the plaintiff may discover the identify of the author
only at a later date.”

Price v. J.C. Penney Co., 26 N.C. App.

249, 252, 216 S.E.2d 154, 156 (1975) (citing Gordon v. Fredle,
206 N.C. 734, 175 S.E. 126 (1934)).
•

Malicious Prosecution:

The applicable statute of limitations

for malicious prosecution is three years.

N.C. Gen. Stat.

§ 1-52(5).
•

Professional Negligence: The applicable statute of limitations
for professional negligence is three years and “shall be
deemed to accrue at the time of occurrence of the last act of
the defendant giving rise to the cause of action . . . .”
N.C. Gen. Stat. § 1-15(c).

Furthermore, though said action

may be brought later if injury is not readily apparent, “in no
event shall an action be commenced more than four years from
the last act of the defendant giving rise to the cause of
action . . . .”
•

Id.

Negligence and Gross Negligence:

The applicable statute of

limitations for a negligence or gross negligence action is
three years from the date of accrual.
-13-

N.C. Gen. Stat.

§ 1-52(5).

“A cause of action based on negligence accrues

when the wrong giving rise to the right to bring suit is
committed, even though the damages at that time be nominal and
the

injuries

cannot

be

discovered

until

a

later

date.”

Harrold v. Dowd, 149 N.C. App. 777, 781, 561 S.E.2d 914, 918
(2002) (citing Pierson v. Buyher, 101 N.C. App. 535, 537, 400
S.E.2d 88, 90 (1991)).
Plaintiff’s alleged federal causes of action under 42 U.S.C.
§§ 1981, 1983 and 1985 would be governed either by the rule “that
in the absence of a federal statute of limitations governing a
federal cause of action, courts look first to the most analogous
state statute of limitations,” Grace v. Thomason Nissan, 76 F.
Supp. 2d 1083, 1090 (D. Or. 1999), or under 28 U.S.C. § 1658, which
states:
Except as otherwise provided by law, a civil action
arising under an Act of Congress enacted after the date
of the enactment of this section may not be commenced
later than 4 years after the cause of action accrues.5
Moreover, “[u]nder federal law a cause of action accrues when the
plaintiff possesses sufficient facts about the harm done to him
5

Whether the applicable statute of limitations for a claim
brought under 42 U.S.C. § 1981 is the most analogous state law
statute of limitations or the four-year statute of limitations
provided in 28 U.S.C. § 1658 depends on whether Plaintiff’s claims
are enabled by the post-1991 amended version of Section 1981. See
James v. Circuit City Stores, Inc., 370 F.3d 417, 420-21 (4th Cir.
2004). As Plaintiff’s claims, brought nearly ten years after the
applicable events took place, would be time-barred under either
interpretation, the undersigned does not belabor this issue.
-14-

that reasonable inquiry will reveal his cause of action.” Nasim v.
Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995)
(citing United States v. Kubrick, 444 U.S. 111, 122-24 (1979)). If
Plaintiff were able to connect one of the above-referenced state
law tort claims to a violation of Section 1981, 1983 or 1985,
“[P]laintiff possess[ed] sufficient facts about the harm done to
him that reasonable inquiry [would have] revealed his cause of
action” id., at the time of Plaintiff’s 2001 court appearance.
Accordingly, as four years represents the longest limitations
period applicable to Plaintiff’s claims, and Plaintiff brought the
instant

claims

nearly

ten

years

after

the

underlying

events

occurred, Plaintiff’s causes of action, as listed above, are timebarred.
Plaintiff’s claims for intentional infliction of emotional
distress require separate analysis.

The applicable statute of

limitations for intentional infliction of emotional distress is
three years.

N.C. Gen. Stat. § 1-52(5).

As Plaintiff’s Complaint

does not specify when his emotional distress manifested itself (see
Docket Entry 1), the Court cannot clearly determine from the face
of the Complaint that the statute of limitations period has run.
See, e.g., Morris v. Lowe’s Home Ctrs., Inc., No. 1:10-cv-388, 2011
WL

2417046,

at

*6

(M.D.N.C.

June

13,

2011)

(Eagles,

J.)

(unpublished) (noting that plaintiff “provides no specific dates
regarding when she allegedly suffered severe emotional distress”
-15-

and therefore finding, “[b]ecause the complaint does not clearly
indicate

that

the

claim

time

barred,

is

intentional-infliction-of-emotional-distress
the

statute

of

limitations

is

not

an

appropriate ground for dismissal”).
Regardless, Plaintiff’s Complaint lacks factual assertions to
support this claim.

The elements of intentional infliction of

emotional distress are: 1) extreme and outrageous conduct; 2) which
was intended to cause and did cause; 3) severe emotional distress
to another.

Chapman v. Byrd, 12 N.C. App. 13, 19, 475 S.E.2d 734,

739 (1996).

Even

applying a

liberal reading

to

Plaintiff’s

Complaint, the allegations contained therein provide insufficient
factual assertions to support Plaintiff’s contentions that the
actions of the Defendants were “extreme and outrageous” id., or
that

they

were

“intended”

emotional distress.

id.,

to

cause

Plaintiff’s

alleged

Accordingly, Plaintiff’s Complaint thus does

not “plead ‘factual matter’ that permits the court to infer ‘more
than the mere possibility of misconduct,’” Atherton, 567 F.3d at
681–82 (quoting Erickson, 551 U.S. at 94, and Iqbal, 129 S. Ct. at
1950 (2009)), and should be dismissed.
Conclusion
Plaintiff’s Complaint lacks factual assertions that would
support

federal

Furthermore,

even

question
if

jurisdiction

Plaintiff

asserted

over
a

basis

his
for

claims.
federal

question jurisdiction, the face of Plaintiff’s Complaint reveals
-16-

that his claims are time-barred by the applicable statutes of
limitations or otherwise lack sufficient factual assertions to
state a claim.
IT

IS

THEREFORE

RECOMMENDED

that

the

Motion

to

Dismiss

Pursuant to 12(b)(1) and 12(b)(6) filed by Defendants the Law Firm
of Plummer, Belo & Russell, PA and Vernon Russell (Docket Entry 12)
be granted in part, in that the Court should dismiss this action
for lack of subject matter jurisdiction.
IT IS FURTHER RECOMMENDED that, in the alternative, Defendant
Foot Locker, Inc.’s Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(6) for Failure to State a Claim Upon Which Relief Can be
Granted and Memorandum in Support Thereof (Docket Entry 8) be
granted and the Motion to Dismiss Pursuant to 12(b)(1) and 12(b)(6)
filed by Defendants the Law Firm of Plummer, Belo & Russell, PA and
Vernon Russell (Docket Entry 12) be granted in part, in that the
Court should dismiss this action for failure to state a claim upon
which relief can be granted.
IT IS FURTHER RECOMMENDED that Plaintiff’s Motion to Strike
Defendant’s Motion to Dismiss & Brief in Support (Docket Entry 18),
Motion to Compel Each Party to Have Separate Counsel to Avoid
Conflict of Interest; Brief in Support (Docket Entry 19), and
Motion to Dismiss Defendants [sic] Motion to Dismiss (Docket Entry
20) be denied as moot.

-17-

This the

23rd

day of February, 2012.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

-18-