WEATHERS v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL

Filing 37

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR., on 9/30/2013, that Defendants' Motion to Dismiss First Amended Complaint (Doc. 27 ) is GRANTED.⁹ FURTHER that Defendants' Motion to Dismiss (Doc. 18 ) is DENIED as MOOT. A judgment dismissing this action will be entered contemporaneously with this Memorandum Opinion and Order. (Lloyd, Donna)

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

ANDREA C. WEATHERS,
Plaintiff,
v.
UNIVERSITY OF NORTH CAROLINA
AT CHAPEL HILL, HERBERT B.
PETERSON, in his individual
and official capacity,
JONATHAN KOTCH, in his
individual and official
capacity, BARBARA K. RIMER,
in her individual and official
capacity, EDWARD M. FOSTER, in
his individual and official
capacity, and SANDRA L.
MARTIN, in her individual and
Official capacity,
Defendants.

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1:12CV1059

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is Defendants‟ Motion to
Dismiss First Amended Complaint (Doc. 27).

Defendants have

filed a memorandum in support of their motion (Doc. 28),1
Plaintiff has filed a response in opposition (Doc. 30), and
Defendants have filed their reply (Doc. 33).

1

Defendants‟ motion

Defendants have also incorporated the statement of facts
and arguments from their memorandum in support of their motion
to dismiss the original complaint (Doc. 19).

is now ripe for adjudication, and for the reasons that follow,
this court will grant the motion.
I.

BACKGROUND
In November 2008, Dr. Andrea C. Weathers (“Plaintiff”)

filed suit in this court alleging that she was denied
reappointment and tenure in 2007 as a result of Defendants‟
racially discriminatory conduct (civil case number 1:08CV847 “Weathers I”).

On November 18, 2010, this court granted

Defendants‟ motion for summary judgment on all claims.

That

decision was affirmed by the Fourth Circuit on appeal.

Weathers

v. Univ. of N.C. at Chapel Hill, 447 F. App‟x 508 (4th Cir.
2011), aff‟g, No. 1:08CV847, 2010 WL 4791809 (M.D.N.C. Nov. 18,
2010).
In December 2011, Plaintiff discovered four documents among
her files related to her reappointment process in 2004.

(First

Amended Complaint (“First Am. Compl.”) (Doc. 24) ¶ 35.)

Those

documents include: (1) a letter from Defendant Kotch, who was
the department chair at the time, addressed to Plaintiff and
dated January 16, 2004, regarding her reappointment for a second
term and stating that “a copy of the departmental review
procedures that were approved and distributed October 30, 1996,”
was attached; (2) an enclosure titled “Memorandum” and dated
October 30, 1996, that states “Please find enclosed the revised
-2-

reviewed procedures for faculty promotion which will be used in
the department”; (3) a document titled “Department of Maternal
and Child Health Revised Review Procedures for Faculty Promotion
October 1996” (“1996 Departmental Policy”); and (4) an email
dated February 4, 2004, from Sharon Bowers to Defendant Kotch,
with a carbon copy to Ms. Bowers and Plaintiff, forwarding an
email between Defendant Kotch and Ms. Bowers which references
the 1996 Departmental Policy.

(Id.)

According to the First Amended Complaint, these documents
contradict statements made by Defendants in Weathers I regarding
whether the 1996 Departmental Policy was an established policy
governing applications for faculty promotion in the Department
of Maternal and Child Health during Plaintiff‟s employment at
Defendant UNC.

(Id. ¶ 36.)

Specifically, Defendants‟ reply

brief in support of their motion for summary judgment stated
that “there is no evidence that [the 1996 Departmental Policy]
ever had any official status in [the Department of Maternal and
Child Health], that the procedures described therein were ever
followed or that [Plaintiff] would have complied with the
procedures if they had been policy.”

(Defs.‟ Reply to Pl.‟s

Mem. in Opp‟n to Defs.‟ Mot. for Summ. J. (“Defs.‟ Reply Br.”)

-3-

(Doc. 75) at 3 in civil case 1:08CV847.)2

In addition, the reply

brief noted that Defendant Peterson “did testify [in a
deposition] that he never implemented procedures and does not
know if they ever were implemented in [the Department of
Maternal and Child Health].”

(Id. at 2.)

Plaintiff contends

that the procedures used for her promotion application process
were at the heart of her prima facie case in Weathers I.
Am. Compl. (Doc. 24) ¶ 37.)

(First

Based on the foregoing, Plaintiff

alleges that Defendant UNC has “engaged in fraud on the court,
fraud and/or a material misstatement of the evidence in its
discovery materials, its evidentiary disclosure, and its court
filings.”

(Id. ¶ 40.)

Plaintiff‟s First Amended Complaint includes seven claims
for relief.

In her first two claims, Plaintiff seeks to set

aside the judgment in Weathers I pursuant to Federal Rule of
Civil Procedure 60(d) for fraud on the court and through an
independent action in equity.

Plaintiff also alleges new claims

against Defendant UNC and Defendants Peterson, Kotch, Rimer, and
Martin (collectively the “Individual Defendants”) under the
following legal theories: (1) fraud, (2) negligent
misrepresentation, (3) civil conspiracy, (4) violations of 42
2

All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
-4-

U.S.C. §§ 1981 and 1983, and (5) violations of her due process
rights under the United States and North Carolina Constitutions.
II.

LEGAL STANDARD
Defendants move to dismiss Plaintiff‟s First Amended

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
To survive a Rule 12(b)(6) motion, a plaintiff must allege
“sufficient factual matter, accepted as true, to „state a claim
to relief that is plausible on its face.‟”

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).

For a claim to be facially

plausible, a plaintiff must “plead[] factual content that allows
the court to draw the reasonable inference that the defendant is
liable” and must demonstrate “more than a sheer possibility that
a defendant has acted unlawfully.”
U.S. at 556).

Id. (citing Twombly, 550

When ruling on a Rule 12(b)(6) motion, a court

must accept the complaint‟s factual allegations as true.

Id.

However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions,” and “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”

Id. (citing Twombly, 550 U.S. at 555).

-5-

III. ANALYSIS
Federal Rule of Civil Procedure 60(d)
Plaintiff first contends that she is entitled to equitable
relief from the judgment in Weathers I under both a fraud on the
court theory and through an independent action in equity.
Federal Rule of Civil Procedure 60(d) recognizes the authority
of federal courts to “entertain an independent action to relieve
a party from a judgment, order, or proceeding,” and to “set
aside a judgment for fraud on the court.”

For the reasons that

follow, this court finds that Plaintiff‟s claims for equitable
relief should be dismissed.
“Not all fraud is „fraud on the court.‟”
Express, Inc. v. Int‟l
(4th Cir. 1982).

Great Coastal

Bhd. of Teamsters, 675 F.2d 1349, 1356

Fraud on the court “should be construed very

narrowly,” and “is typically confined to the most egregious
cases, such as bribery of a judge or juror, or improper
influence exerted on the court by an attorney, in which the
integrity of the court and its ability to function impartially
is directly impinged.”

Id.

“By contrast, perjury and

fabricated evidence alone, being evils which can be exposed by
the normal adversary process, do not constitute grounds for
relief as „fraud on the court.‟”

Rainwater v. Mallas, No.

94-1122, 1994 WL 712570, at *2 (4th Cir. Dec. 23, 1994) (per
-6-

curiam) (citing Great Coastal Express, 675 F.2d at 1357); see
also In re Genesys Data Techs., Inc., 204 F.3d 124, 130-31 (4th
Cir. 2000).
Similarly, independent actions are “reserved for those
cases of „injustices which, in certain instances, are deemed
sufficiently gross to demand a departure‟ from rigid adherence
to the doctrine of res judicata.”

United States v. Beggerly,

524 U.S. 38, 46 (1998) (quoting Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 244 (1944)); see also id. at
47 (“[A]n independent action should be available only to prevent
a grave miscarriage of justice.”).

Accordingly, independent

actions are subject to a “demanding standard,” id., and “perjury
and false testimony are not grounds for relief in an independent
action in the Fourth Circuit for many of the same reasons that
apply to fraud on the court.”

Great Coastal Express, 675 F.2d

at 1358.
In support of her request to set aside the Weathers I
judgment, Plaintiff contends that the 1996 Departmental Policy
was produced late in discovery and only “after numerous
depositions and interrogatories denied time and again that this
document was ever adopted by Defendant UNC and that the
Department did not have a separate written policy on promotion
and tenure.”

(Pl.‟s Resp. in Opp‟n to Defs.‟ Mot. to Dismiss
-7-

(“Pl.‟s Br.”) (Doc. 30) at 2.)

However, Plaintiff has not

directed this court to any of the “numerous depositions and
interrogatories” denying that the document had ever been
adopted.3

Instead, she relies on the statements in Defendants‟

summary judgment reply brief that there was no evidence the
policy had ever been adopted and that Defendant Peterson
testified that he did not know if the policy had ever been
implemented.
For the following reasons, this court finds that the
allegations in the First Amended Complaint do not satisfy the
demanding standard for setting aside a judgment for fraud on the
court or through an independent action.

First, allegations that

an opposing party committed perjury or fabricated evidence in an
earlier proceeding are generally insufficient to satisfy the
requirements for fraud on the court or an independent action in

3

Only Sue Cotcamp, the department‟s human resources
administrator, and Defendant Peterson were asked about the 1996
Departmental Policy in their depositions. There is no evidence
that either Ms. Cotcamp or Defendant Peterson lied during these
depositions. Defendant Peterson testified that he recognized
the document “as of a couple of weeks” before he was deposed.
(Defs.‟ Reply Br., Deposition of Herbert B. Peterson, MD (Doc.
75-5) at 6-7 in civil case 1:08CV847.) According to Defendant
Peterson, he did not implement the 1996 Departmental Policy and
he did not know if it had ever been implemented. (Id. at 7.)
When asked if he had any evidence that the policy had not been
implemented, Defendant Peterson responded that he did not have
any evidence either that it had or had not been implemented and
that he “never understood it as policy and ha[d] never used it
as policy.” (Id. at 8.)
-8-

equity.

Great Coastal Express, 675 F.2d at 1358; see also

George P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44, 49
(1st Cir. 1995) (“In sum, perjury alone, absent allegation of
involvement by an officer of the court . . . , has never been
sufficient.”); cf. Hazel-Atlas Glass Co., 322 U.S. at 245 (“This
is not simply a case of a judgment obtained with the aid of a
witness who, on the basis of after-discovered evidence, is
believed possibly to have been guilty of perjury.”).

Although

“[i]nvolvement of an attorney, as an officer of the court, in a
scheme to suborn perjury would certainly be considered fraud on
the court,” Great Coastal Express, 675 F.2d at 1357, the First
Amended Complaint does not allege that Defendants‟ counsel knew
whether the statements in the reply brief were false or that
counsel in any way sought to suborn the alleged perjurious
statements.
Second, this court finds that the allegations in the First
Amended Complaint do not show that it would be a “grave
miscarriage of justice” to allow the judgment to stand.
Beggerly, 524 U.S. at 47.

See

To establish a prima facie case of

discrimination in the denial of promotion and tenure, a
plaintiff must present evidence that: (1) she is a member of a
protected group, (2) she applied for promotion and tenure, (3)
she was qualified for promotion and tenure, and (4) she was
-9-

rejected under circumstances giving rise to an inference of
unlawful discrimination.

Rowe v. N.C. Agric. & Technical State

Univ., 630 F. Supp. 2d 601, 607 (M.D.N.C. 2009) (citing Alvarado
v. Bd. of Trs. of Montgomery Cmty. Coll., 928 F.2d 118, 121 (4th
Cir. 1991)).
Despite Plaintiff‟s protests to the contrary, the 1996
Departmental Policy was not key to this court‟s resolution of
the claims in Weathers I.

In Weathers I, this court held that

Plaintiff failed to establish all but the first element of a
prima facie case.

Even if the 1996 Departmental Policy was in

effect during Plaintiff‟s 2007 reappointment and promotion
application process, this court would still find Plaintiff
failed to produce evidence that she applied for4 and was
qualified for promotion and tenure.

In opposing this

conclusion, Plaintiff argues that an admission that the policy
was in effect would have established her prima facie case for
discrimination because Defendants‟ “proffered reason for not
providing [Plaintiff] with two faculty advisors for her
promotion process and definite dates and requirements for the
promotion process, that is, that no policy required it, would

4

This court held in Weathers I that Plaintiff did not
submit an application for tenure in accordance with University
requirements (1:08CV847, Mem. Op. & Order (Doc. 80) at 38). The
Fourth Circuit affirmed that holding. (See 1:08CV847, Fourth
Cir. Op. (Doc. 85) at 4-5.)
-10-

have been shown to be false, and a presumption would have arisen
of unlawful discrimination.”

(Pl.‟s Br. (Doc. 30) at 4-5.)

However, this argument miscomprehends the McDonnell-Douglas
framework.

Had she had such an admission, Plaintiff would have

been able to establish, at most, the first and fourth elements
of her prima facie case.

Accordingly, despite the alleged

fraud, Plaintiff would not have prevailed on her prior claims
even with evidence that the 1996 Departmental Policy had been in
effect in 2007.
This court also notes the following additional factors
militating against the request for equitable relief in this
case: (1) the four documents on which Plaintiff relies have been
in her possession since 2004; (2) those documents show, at most,
that the 1996 Departmental Policy was in effect in 2004, which
was prior to Defendant Peterson‟s tenure as department chair;
and (3) Plaintiff was already able to argue in her response to
Defendants‟ motion for summary judgment in Weathers I that “the
most disturbing aspect” of the case was that “there was a
written Department policy that was purposely withheld from
Plaintiff that would have provided Plaintiff with two mentors
for her application process and provided her advance warning of
the Department‟s deadlines, along with other information.”

-11-

(Pl.‟s Mem. in Opp‟n to Defs.‟ Mot. for Summ. J. (Doc. 72) at 9
in civil case 1:08CV847.)
Accordingly, Plaintiff has not made a colorable claim of
fraud, and this court will dismiss her claims for Rule 60(d)
relief.
New Claims
Plaintiff also alleges new claims against Defendant UNC and
the Individual Defendants5 under the following legal theories:
(1) fraud, (2) negligent misrepresentation, (3) civil
conspiracy, (4) violations of 42 U.S.C. §§ 1981 and 1983, and
(5) violations of her due process rights under the United States
and North Carolina Constitutions.

These claims arise from

several alleged fraudulent statements, misrepresentations, and
nondisclosures, some of which occurred while Plaintiff was still
employed by Defendant UNC and others which occurred during the
Weathers I litigation.

First, Plaintiff alleges that Defendant

UNC and the Individual Defendants failed to inform her of the
1996 Departmental Policy during her 2007 promotion application
process and wrongfully claimed to use some other policy that had
not been adopted by the Department of Maternal and Child Health.
(First Am. Compl. (Doc. 24) ¶¶ 66, 70, 72; see also ¶¶ 91, 95.)
Second, she contends that Defendant UNC and the Individual
5

The Individual Defendants are sued in both their official
and individual capacities.
-12-

Defendants fraudulently claimed in discovery and during
depositions that the 1996 Departmental Policy was not in effect
during Plaintiff‟s 2007 reappointment application process.
¶ 66.)

(Id.

Third, Plaintiff alleges that Defendant UNC and the

Individual Defendants conspired to commit an unspecified
unlawful act, presumably fraud.6

For the reasons that follow,

this court finds that each of these claims should be dismissed.
Res Judicata
Defendants assert the affirmative defense of res judicata
based on the judgment in Weathers I.

To the extent Plaintiff‟s

new claims arise from alleged actions or inactions during her
promotion application process, those claims are barred by the
doctrine of res judicata.

“A party invoking res judicata must

establish three elements: (1) a previous final judgment on the
merits, (2) an identity of the cause of action in both the
earlier and the later suit, and (3) an identity of parties or
their privies in the two suits.”

Union Carbide Corp. v.

Richards, 721 F.3d 307, 314-15 (4th Cir. 2013).
“[W]hen entertaining a motion to dismiss on the ground of
res judicata, a court may take judicial notice of facts from a
prior judicial proceeding when the res judicata defense raises

6

The conspiracy claim does not reallege or incorporate the
allegations in Plaintiff‟s statutory and constitutional claims,
which appear later in the First Amended Complaint.
-13-

no disputed issue of fact.”
n.1 (4th Cir. 2000).

Andrews v. Daw, 201 F.3d 521, 524

Although she disagrees with this court‟s

decision in Weathers I, Plaintiff has not disputed the accuracy
of the record in that case.

Accordingly, where relevant, this

court takes judicial notice of those proceedings.
It is undisputed that the first and third elements for res
judicata are present in this case.

Thus, the only issue is

whether there is “an identity of the cause of action.”

“The

determination of whether two suits arise out of the same cause
of action . . . turns on whether the suits and claims asserted
therein „arise out of the same transaction or series of
transactions or the same core of operative facts.‟”

Pueschel v.

United States, 369 F.3d 345, 355 (4th Cir. 2004) (quoting In re
Varat Enters., Inc., 81 F.3d 1310, 1316 (4th Cir. 1996)).
Claims may satisfy this standard “even if they involve different
harms or different theories or measures of relief.”
Billman, 800 F.2d 1308, 1314 (4th Cir. 1986).

Harnett v.

“Among the

factors to be considered in deciding whether the facts of the
current and prior claims „are so woven together‟ that they
constitute a single claim „are their relatedness in time, space,
origin, or motivation, and whether, taken together, they form a
convenient unit for trial purposes.‟”

-14-

Pittston Co. v. United

States, 199 F.3d 694, 704 (4th Cir. 1999) (quoting Restatement
(Second) of Judgments § 24 cmt. b (1982)).
Plaintiff contends that the allegations underlying her new
claims are “different in time and nature” than those alleged in
Weathers I and that she “did not have a fair opportunity to
litigate” those issues because she “was not aware of them” at
the time of Weathers I.

(Pl.‟s Br. (Doc. 30) at 6.)

However,

this court finds that the alleged misrepresentations and
nondisclosures during Plaintiff‟s promotion application process
are “so woven together” with the claims in Weathers I that “they
form a convenient unit for trial purposes.”

In Weathers I,

Plaintiff alleged that she was denied reappointment and tenure
as a result of Defendants‟ racially discriminatory conduct.

Her

new claims based on the alleged misconduct of Defendant UNC and
the Individual Defendants during that process are clearly based
on the same core of operative facts as her claims in Weathers I.
This court also rejects Plaintiff‟s argument that res
judicata cannot bar her new claims because she did not become
aware of them until after the judgment in Weathers I.

“For

purposes of res judicata, it is not necessary to ask if the
plaintiff knew of his present claim at the time of the former
judgment, for it is the existence of the present claim, not
party awareness of it, that controls.”
-15-

Harnett, 800 F.2d at

1313; see also Keith v. Aldridge, 900 F.2d 736, 740 n.5 (4th
Cir. 1990).
However, Plaintiff‟s new claims are not barred by res
judicata to the extent they are based on alleged post-complaint
conduct.

“The federal rule is that claim preclusion generally

does not bar a subsequent lawsuit for issues that arise after
the operative complaint is filed.”

Ellis v. CCA of Tenn. LLC,

650 F.3d 640, 652 (7th Cir. 2011); see also Rawe v. Liberty Mut.
Fire Ins. Co., 462 F.3d 521, 530 (6th Cir. 2006); Mitchell v.
City of Moore, Okla., 218 F.3d 1190, 1202 (10th Cir. 2000)
(“[W]e agree with those courts holding the doctrine of claim
preclusion does not necessarily bar plaintiffs from litigating
claims based on conduct that occurred after the initial
complaint was filed.”); Manning v. City of Auburn, 953 F.2d
1355, 1360 (11th Cir. 1992); 18 Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure § 4409
(2d ed. 2002) (“Most cases rule that an action need include only
the portions of the claim due at the time of commencing that
action, frequently observing that the opportunity to file a
supplemental complaint is not an obligation.”).

In Weathers I,

the operative complaint was filed on February 2, 2009.
Verified Second Am. Civil Compl. (Doc. 29) in civil case

-16-

(See

1:08CV847.)

Accordingly, res judicata does not bar any claims

that were not ripe as of that date.
Based on the foregoing, each of Plaintiff‟s new claims
should be dismissed to the extent it is based on alleged
misconduct during Plaintiff‟s reappointment and tenure
application process.

Because the misrepresentation claim is

based on the allegation that Defendant UNC and the Individual
Defendants negligently provided information to Plaintiff in
preparation for her promotion application process, it will be
dismissed in whole.

The other claims will be dismissed only in

part on res judicata grounds.
Fraud and Civil Conspiracy Claims
This court will also dismiss the remainder of the fraud
claim and the civil conspiracy claim.

It is “well established

in North Carolina that neither perjury nor subornation of
perjury may form the basis for a civil action.”

Gilmore v.

Gilmore, No. COA12-1426, 2013 WL 4714331 (N.C. App. Sept. 3,
2013); see also Gillikin v. Springle, 254 N.C. 240, 243, 118
S.E.2d 611, 614 (1961) (“Perjured testimony and the subornation
of perjured testimony are criminal offenses, but neither are
torts supporting a civil action for damages.” (citations
omitted)); Brewer v. Carolina Coach Co., 253 N.C. 257, 262, 116
S.E.2d 725, 728 (1960); Godette v. Gaskill, 151 N.C. 52, 65 S.E.
-17-

612 (1909); Hawkins v. Webster, 78 N.C. App. 589, 592, 337
S.E.2d 682, 684 (1985) (“A civil action may not be maintained
for a conspiracy to give false testimony.”).

Accordingly,

Plaintiff‟s claims for fraud and civil conspiracy based on the
alleged litigation misconduct of Defendant UNC and the
Individual Defendants will be dismissed.
42 U.S.C. §§ 1981 and 1983
This court also dismisses Plaintiff‟s Sixth Cause of
Action.

In that claim, which is pursued under 42 U.S.C. §§ 1981

and 1983, Plaintiff alleges that the actions of Defendant UNC
and the Individual Defendants were “done as retaliation against
[Plaintiff] for filing her Second Amended Complaint [in Weathers
I], as further acts of unlawful racially discriminatory conduct,
and/or for some other unlawful purpose.”
(Doc. 24) ¶ 83.)

(First Am. Compl.

Section 1981 “prohibits racial discrimination

in the making and enforcement of contracts.”

Runyon v. McCrary,

427 U.S. 160, 168 (1976); Aleman v. Chugach Support Servs.,
Inc., 485 F.3d 206, 208 (4th Cir. 2007).

Plaintiff‟s basis for

her Sixth Cause of Action is not entirely clear, but the First
Amended Complaint recognizes that § 1981 “prohibits all forms of
racial discrimination in employment, including discrimination in
hiring and firing, promotions and demotions, transfers, unequal
pay, racial harassment, and other discrimination in the terms
-18-

and conditions of employment.”
¶ 85.)

(First Am. Compl. (Doc. 24)

To the extent Plaintiff seeks to recover for alleged

racial discrimination during her employment at Defendant UNC,
her claim is barred by res judicata.

To the extent she seeks to

recover for alleged conduct after her employment, this court is
uncertain, and the Complaint fails to allege, how Defendant UNC
and the Individual Defendants are alleged to have impaired any
of her § 1981 rights.
Due Process Claims
Finally, this court will dismiss Plaintiff‟s Seventh Cause
of Action, which alleges violations of her due process rights
under the United States and North Carolina Constitutions.7

The

Fourteenth Amendment does not create a direct cause of action.
Hughes v. Bedsole, 48 F.3d 1376, 1383 n.6 (4th Cir. 1995).
7

This court notes that direct claims under the North
Carolina Constitution may only be brought against the Individual
Defendants in their official capacities. See Love-Lane v.
Martin, 355 F.3d 766, 789 (4th Cir. 2004). This court leaves
open the question of whether there is an “adequate state remedy”
that would prevent Plaintiff from pursuing a direct claim under
the North Carolina Constitution. See Craig ex rel. Craig v. New
Hanover Cnty. Bd. of Educ., 363 N.C. 334, 338, 678 S.E.2d 351,
354 (2009); Corum v. Univ. of N.C., 330 N.C. 761, 782, 413
S.E.2d 276, 289 (1992).
Defendants have not yet asserted Eleventh Amendment
immunity, and this court will not address the issue sua sponte.
See Wis. Dep‟t of Corr. v. Schacht, 524 U.S. 381, 389 (1998)
(“Unless the State raises the matter, a court can ignore it.”);
Constantine v. Rectors & Visitors of George Mason Univ., 411
F.3d 474, 481 (4th Cir. 2005) (“Eleventh Amendment immunity need
not be raised by a court sua sponte.”).
-19-

“Instead, § 1983 provides a statutory cause of action for all
citizens injured by an abridgment of the protections contained
in the Constitution, including the Equal Protection and Due
Process Clauses of the Fourteenth Amendment.”

Costello v. Univ.

of N.C. at Greensboro, 394 F. Supp. 2d 752, 759 (M.D.N.C. 2005)
(citing Collins v. City of Harker Heights, Tex., 503 U.S. 115,
119-20 (1992)).

Therefore, this court will construe Plaintiff‟s

federal due process claim as a § 1983 claim.
To prevail on a § 1983 claim, plaintiffs “must show that
(1) they were deprived of a federal statutory or constitutional
right; and (2) the deprivation was committed under color of
state law.”

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003).

Here, Plaintiff has alleged that her right to due process was
violated.

The Due Process Clause of the Fourteenth Amendment

prohibits states from “depriv[ing] any person of life, liberty,
or property, without due process of law.”

U.S. Const. amend.

XIV, § 1.
The North Carolina Constitution‟s law of the land clause
guarantees “due process rights separate from, though similar to,
those guaranteed by the federal constitution.”

Ware v. Fort,

124 N.C. App. 613, 616, 478 S.E.2d 218, 220-21 (1996) (citing
N.C. Const. art. I, § 19); see also McNeill v. Harnett Cnty.,
327 N.C. 552, 563, 398 S.E.2d 475, 481 (1990) (decisions
-20-

interpreting the federal Due Process Clause, “although
persuasive, do not control an interpretation . . . of the law of
the land clause”).

The clause states that “[n]o person shall be

. . . deprived of his life, liberty, or property, but by the law
of the land.”

N.C. Const. art. I, § 19.

Plaintiff‟s due process claim is based on the same
allegations of “fraud on the court, fraud, misrepresentation,
and conspiracy” as her other claims.
24) ¶ 95.)

(First Am. Compl. (Doc.

For several reasons, these allegations fail to state

a due process claim under either the United States Constitution
or the North Carolina Constitution.
First, it is unclear from the First Amended Complaint
whether Plaintiff claims that Defendant UNC and the Individual
Defendants denied her procedural due process, substantive due
process, or both; however, under either theory, Plaintiff must
allege that she was deprived of a protected interest in life,
liberty, or property.

See Sylvia Dev. Corp. v. Calvert Cnty.,

Md., 48 F.3d 810, 826-27 (4th Cir. 1995) (elements of procedural
and substantive due process claims); Kilcoyne v. Morgan, 664
F.2d 940, 942 (4th Cir. 1981) (per curiam) (“Invocation of the
Fourteenth Amendment‟s due process guarantees required [the
plaintiff] to show that the State had deprived him of a
protected liberty or property interest.” (footnote omitted));
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Toomer v. Garrett, 155 N.C. App. 462, 469, 574 S.E.2d 76, 84
(2002) (“In general, substantive due process protects the public
from government action that unreasonably deprives them of a
liberty or property interest.”).

Plaintiff has failed to do so.8

Second, Plaintiff‟s constitutional claim is principally
based on her allegation that Defendant UNC and the Individual
Defendants fraudulently claimed in “discovery and during sworn
depositions that the 1996 Departmental Policy was not in effect
at the time of Plaintiff‟s application for promotion.”
Am. Compl. (Doc. 24) ¶ 66.)

(First

Even assuming she would otherwise

be able to state a claim for relief, Plaintiff has not
identified any allegedly fraudulent statement from either
discovery responses or a deposition other than the summary of
Defendant Peterson‟s deposition testimony included in
Defendants‟ summary judgment reply brief.
Third, even if there were such false statements, this court
did not rely on those statements in ruling on Defendants‟ motion
for summary judgment in Weathers I.
8

As addressed above, this

Plaintiff did not have a protected property interest in
continued employment with Defendant UNC. See Kilcoyne, 664 F.2d
at 942 (“Because he lacked a right to further employment at [the
university], his denial of tenure and further employment without
any procedural safeguards would have been permissible under the
Fourteenth Amendment.”); Ware, 124 N.C. App. at 617, 478 S.E.2d
at 221 (finding that a university professor who was not
reappointed “had no property right in the position of which he
could be constitutionally deprived – under either the North
Carolina or federal constitutions”).
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court‟s ruling was based on its determination that Plaintiff had
failed to establish a prima facie case of discrimination.

The

result would have been the same whether or not the 1996
Departmental Policy was in effect during Plaintiff‟s tenure
application process.

Accordingly, there was no “causal

relationship” between the alleged fraudulent or perjurious
statements and this court‟s ruling in Weathers I.

See Myers v.

Bull, 599 F.2d 863, 866 (8th Cir. 1979) (per curiam) (“Absent
some showing that the alleged perjurious deposition had some
causal relationship to appellant‟s conviction, he has failed to
state a claim upon which relief can be granted.”).

Therefore,

Plaintiff‟s Seventh Cause of Action will be dismissed.
IV.

CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that

Defendants‟ Motion to Dismiss First Amended Complaint (Doc. 27)
is GRANTED.9

IT IS FURTHER ORDERED that Defendants‟ Motion to

Dismiss (Doc. 18) is DENIED as MOOT.

9

This court has addressed Defendants‟ motion and this case
on the merits even though the parties have not addressed or
argued the authority of this court to grant full relief. The
Fourth Circuit in Weathers I affirmed this court‟s judgment and
the mandate was issued. Nevertheless, this court does find it
appropriate to proceed. Similar to the procedure outlined in
Fobian v. Storage Tech. Corp., 164 F.3d 887 (4th Cir. 1999)
(addressing Fed. R. Civ. P. 60(b) motions rather than 60(d)),
this court finds that Plaintiff has not established a claim upon
which this court‟s prior judgment should be set aside.
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A judgment dismissing this action will be entered
contemporaneously with this Memorandum Opinion and Order.
This the 30th day of September, 2013.

____________________________________
United States District Judge

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