VONFELDT v. GRAPSY
Filing
22
MEMORANUMD OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD, signed on 02/14/2017, recommending that the Court deny 6 Defendant's Motion to Dismiss. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
THEODORE P. VONFELDT,
Plaintiff,
v.
MARK A. GRAPSY,
Defendant.
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1:16cv1179
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge for a recommended ruling on Defendant’s Motion to
Dismiss (Docket Entry 6; see also Docket Entry 7 (Brief in Support
of Motion to Dismiss (“Defendant’s Brief”)).
dated Dec. 15, 2016.)
(See Docket Entry
For the reasons that follow, the Court
should deny the instant Motion.1
1
Defendant’s counsel electronically filed the instant Motion
(via the Court’s CM/ECF system) on October 6, 2016, and indicated
on the Certificate of Service that, as a result of that manner of
filing, “the CM/EFC [sic] system . . . will send notification of
such filing to [Plaintiff’s] counsel of record: Ronald Dean Ingle,
Jr.” (Docket Entry 6 at 3.) In fact, at that time, Mr. Ingle had
not yet made an appearance in this Court, as he had filed the
action on Plaintiff’s behalf in state court and Defendant only
recently had removed the action to this Court (see Docket Entry 1;
see also Docket Entry 2 (Letter dated Sept. 27, 2016, from Clerk to
Mr. Ingle, advising him of his obligation to obtain admission to
this Court (or to appear specially with an admitted attorney) and
giving him 30 days to comply with the registration requirements of
the Court’s CM/ECF system). Consistent with that state of affairs,
the receipt generated by Defendant’s filing of the instant Motion
(continued...)
BACKGROUND
Plaintiff’s
affection
and
Complaint
criminal
alleges
conversation
claims
of
and
seeks
alienation
an
award
compensatory and punitive damages, as well as attorney fees.
Docket
Entry
3.)
Under
North
Carolina
common
of
law,
of
(See
for
an
alienation of affection claim, “a plaintiff must prove (1) that
[the plaintiff] and [his or her spouse] were happily married, and
1
(...continued)
reflected that Mr. Ingle would not receive electronic service of
the instant Motion. (See Notice of Elec. Filing, Docket Entry 6.)
Plaintiff, however, did not remain unrepresented in this Court for
long; on October 14, 2016, Harvey W. Barbee, Jr. appeared on
Plaintiff’s behalf (Docket Entry 8) and, in so doing, noted that
Mr. Ingle also had registered with the Court’s CM/ECF system (see
id. at 2), a fact confirmed by the receipt for that filing (see
Notice of Elec. Filing, Docket Entry 8). Despite having secured
representation (from two attorneys with electronic access to the
Docket and all filings) well before the deadline for any response
to the instant Motion, see M.D.N.C. LR 7.3(f) (allowing 21 days to
respond to motions to dismiss), Plaintiff did not respond to the
instant Motion until November 22, 2016 (see Docket Entry 12).
Neither in that response (see id. at 1-15), nor in any other filing
(see Docket Entries dated Oct. 6, 2016, to present), has Plaintiff
requested leave to respond to the instant Motion out of time.
Under these circumstances, the undersigned Magistrate Judge has not
considered Plaintiff’s belated response to the instant Motion. See
M.D.N.C. LR 7.3(k). Nonetheless, the Court must assess the merits
of the instant Motion, whether or not Plaintiff timely opposed it.
See Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 416 n.3
(4th Cir. 2014) (explaining that, “[e]ven though [the plaintiff]
did not challenge the motions to dismiss, . . . the district court
nevertheless ha[d] an obligation to review the motions to ensure
that dismissal [wa]s proper”); Gardendance, Inc. v. Woodstock
Copperworks, Ltd., 230 F.R.D. 438, 449 (M.D.N.C. 2005) (“As with
summary judgment motions, a court does not grant a motion for
dismissal merely because it is uncontested. Rather, a district
court should review a motion to dismiss on its merits to determine
whether the pleadings are sufficient.”).
-2-
that a genuine love and affection existed between them; (2) that
the love and affection so existing was alienated and destroyed; and
(3) that the wrongful and malicious acts of the defendant produced
and
brought
affection.”
about
the
loss
and
alienation
of
such
love
and
McCutchen v. McCutchen, 360 N.C. 280, 283, 624 S.E.2d
620, 623 (2006) (internal brackets and quotation marks omitted).
For a criminal conversation claim, North Carolina’s common law
requires proof that “the plaintiff was lawfully married . . . and
that during the existence of such marriage . . . the defendant []
had sexual intercourse with [the] plaintiff’s [spouse] . . . .”
Bryant v. Carrier, 214 N.C. 191, 194-95, 198 S.E. 619, 621 (1938).
Effective October 1, 2009, North Carolina statutorily limited
alienation of affection and criminal conversation claims from their
full reach under the common law, by exempting from liability
conduct that (although at a time when the plaintiff and the
plaintiff’s spouse remained married) “occurs after the plaintiff
and the plaintiff’s spouse physically separate with the intent of
either the plaintiff or [the] plaintiff’s spouse that the physical
separation remain permanent.”
N.C. Gen. Stat. § 52-13(a).
To support alienation of affection and criminal conversation
claims in this case, the Complaint alleges:
1) “Plaintiff and his wife . . . were lawfully married to each
other on May 27, 1995” (Docket Entry 3 at 1) and they remained
“happily married from the date of their marriage until on or before
-3-
Sunday, April 26, 2015, when [] Defendant and Plaintiff’s wife
engaged in sexual intimacy” (id. (emphasis added); see also id.
(“[P]rior to Sunday, April 26, 2015, a genuine love and affection
existed between Plaintiff and his wife.”));
2) “on or before Sunday, April 26, 2015, and then following
until [Plaintiff and his wife] separated on September 7, 2015, []
Defendant destroyed and alienated the love and affection existing
between Plaintiff and his wife with multiple daily phone calls,
visiting
[]
Plaintiff’s
wife,
having
sexual
intercourse
with
Plaintiff’s wife, arranging overnight business meetings with []
Plaintiff’s wife, and purposely interfering with [] Plaintiff’s
marriage” (id. at 2 (emphasis added); see also id. (“Plaintiff and
his wife separated on September 7, 2015, as a result of Defendant’s
wrongful and malicious conduct.”));
3) “Plaintiff expressed to [] Defendant [Plaintiff’s] outrage
and disapproval of the continued sexual intercourse, contact, and
meetings between Defendant and Plaintiff’s wife” (id. (emphasis
added); see also id. (“Defendant was well aware that Plaintiff and
Plaintiff’s wife were lawfully married at the time of Defendant’s
wrongful and malicious acts.”)); and
4) “the love and affection that Plaintiff and his wife enjoyed
was destroyed and alienated by the blatant refusal of Defendant to
cease
seeing,
visiting,
having
sexual
intercourse
with,
and
communicating with Plaintiff’s wife” (id. (emphasis added); see
-4-
also id. (“Defendant’s wrongful and malicious conduct is the cause
of the alienation of the love and affection that once existed
between Plaintiff and his wife.”)).
DISCUSSION
Defendant has “move[d] the Court to dismiss the criminal
conversation, alienation of affections, and [related] attorney fees
claims for relief filed against him and to invalidate the common
law torts of criminal conversation and alienation of affections
pursuant to [Federal] Rule [of Civil Procedure] 12(b)(1) and
12(b)(6) . . . .”
(Docket Entry 6 at 1.)2
More specifically,
Defendant’s instant Motion asserts that:
2
“A 12(b)(1) motion addresses whether [the plaintiff] has a
right to be in the district court at all and whether the court has
the power to hear and dispose of his [or her] claim, and a 12(b)(6)
motion addresses whether [the plaintiff] has stated a cognizable
claim, a challenge to the sufficiency of the complaint.” Holloway
v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir.
2012). The instant Motion disputes neither Plaintiff’s right to
proceed in this Court nor the Court’s power to adjudicate
Plaintiff’s claims; to the contrary, Defendant (not Plaintiff)
brought this action into this forum (see Docket Entry 1) and the
instant Motion explicitly asks the Court to exercise its authority
to deny Plaintiff’s claims on the ground that the portion of North
Carolina’s common law undergirding them contravenes the United
States Constitution (see Docket Entry 6 at 1-2).
Defendant’s
argument for dismissal thus falls under Federal Rule of Civil
Procedure 12(b)(6), not 12(b)(1). See generally Nesbit v. Gears
Unlimited, Inc., 347 F.3d 72, 82 (3d Cir. 2003) (“When disposing of
a claim brought under an unconstitutional statute, courts
ordinarily deny the claim on the merits, on the ground that the
statute under which relief is sought is unconstitutional, rather
than for lack of subject matter jurisdiction.”).
-5-
1) “[c]riminal conversation is unconstitutional both facially
and as applied to the facts set out in [] Plaintiff’s [C]omplaint
as a violation of: due process liberty and privacy interests[ and]
equal protection rights guaranteed by the Fourteenth Amendment to
the United States Constitution” (id. (emphasis added)); and
2) “[a]lienation of [a]ffections is unconstitutional both
facially and as applied to the facts set out in [] Plaintiff’s
[C]omplaint as a violation of due process liberty and privacy
interests[ and] the equal protection rights guaranteed by the
Fourteenth Amendment to the United States Constitution, [as well
as] freedom of speech rights guaranteed by the First Amendment to
the United States Constitution” (id. at 1-2 (emphasis added)).3
3
As quoted above, the instant Motion refers to due process
and equal protection rights under the Fourteenth Amendment (see
Docket Entry 6 at 1-2); however, Defendant’s Brief does not mention
(much less develop) an Equal Protection Clause argument (see Docket
Entry 7 at 1-17), but instead (as concerns the Fourteenth
Amendment) relies only on the Due Process Clause (see id. at 2-13).
As a result, this Recommendation will not address equal protection
principles. See Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 152
n.4 (4th Cir. 2012) (“This issue is waived because [the plaintiff]
fails to develop this argument to any extent in its brief.”);
Nickelson v. Astrue, No. 1:07CV783, 2009 WL 2243626, at *2 n.1
(M.D.N.C. July 27, 2009) (unpublished) (“[A]s [the plaintiff]
failed to develop these arguments in his [b]rief, the court will
not address them.”), recommendation adopted, slip op. (M.D.N.C.
Sept. 21, 2009). Defendant’s instant Motion also seeks dismissal
of the Complaint based on the North Carolina Constitution (see
Docket Entry 6 at 1-2); however, Defendant’s Brief does not argue
(even in a conclusory, let alone reasoned, manner) that any state
constitutional provision establishes any right beyond the rights
established by the United States Constitution (see Docket Entry 7
at 16-17). Accordingly, this Recommendation discusses only the
(continued...)
-6-
Fourteenth Amendment Due Process
Defendant’s Fourteenth Amendment due process challenge to
North Carolina’s torts of alienation of affection and criminal
conversation relies on Lawrence v. Texas, 539 U.S. 558 (2003).
(See Docket Entry 7 at 3-13.)
In that case, the United States
Supreme Court reversed the convictions of two men for violating a
Texas statute that criminalized homosexual conduct, concluding that
“[t]heir right to liberty under the Due Process Clause gives them
the full right to engage in their conduct [i.e., sexual practices
common to a homosexual lifestyle] without intervention of the
government.”
Lawrence, 539 U.S. at 578.
According to Defendant,
“[t]he present case is controlled by Lawrence in that the State is
regulating the personal lives of two consenting adults [i.e.,
Defendant and Plaintiff’s spouse] by permitting private rights of
action [by Plaintiff] to impose punishment in the form of monetary
liability and a civil fine in the form of punitive damages.”
3
(...continued)
federal constitutional rights at issue. See Sauers v. WinstonSalem/Forsyth Cty. Bd. of Educ., 179 F. Supp. 3d 544, 559 (M.D.N.C.
2016) (“It is not the role of a federal district court to recognize
or create new rights under a state constitution.”).
Finally,
Defendant’s instant Motion states that “[a]ny award of punitive
damages would be an unconstitutional violation of [his] Due Process
Rights under the 5th and 14th Amendments to the United States
Constitution and corresponding provisions contained within the
Constitution of North Carolina.”
(Docket Entry 6 at 2.)
Defendant’s Brief, however, does not address that matter at all
(see Docket Entry 7 at 1-17) and thus neither need the Court, see
Belk, 679 F.3d at 152 n.4; Nickelson, 2009 WL 2243626, at *2 n.1.
-7-
(Docket Entry 7 at 5; see also id. at 7 (“The intimate conduct
between Defendant [] and [Plaintiff’s spouse] falls within the
fundamental right of privacy and autonomy protected by the U.S.
Constitution as held in Lawrence.”), 11 (“[T]he right implicated
[here] is the right outlined in Lawrence for an individual to
engage in private, consensual, sexual conduct.”).)
Lawrence
does
not
invalidate
North
Carolina’s
In fact,
alienation
of
affection and criminal conversation torts for at least two reasons.
First, the Lawrence Court expressly delimited its decision to
“attempts by the State, or a court, to define the meaning of the
relationship [between individuals] or to set its boundaries [A]
absent injury to a person or [B] abuse of an institution the law
protects.”
Lawrence, 539 U.S. at 567 (emphasis added); see also
id. at 578 (“[This case] does not involve persons who might be
injured . . . .”); Muth v. Frank, 412 F.3d 808, 818 (7th Cir. 2005)
(“Lawrence did not announce a fundamental right of adults to engage
in all forms of private consensual sexual conduct.”); Nebraska v.
Van, 268 Neb. 814, 826, 688 N.W.2d 600, 615 (2004) (“The Lawrence
Court did not extend constitutional protection to any conduct which
occurs in the context of a consensual sexual relationship. Rather,
the [Supreme] Court indicated that State regulation of such conduct
was inappropriate ‘absent injury to a person or abuse of an
institution the law protects.’
In addition, it specifically noted
-8-
that the case it was deciding did not involve ‘persons who might be
injured.’”
(emphasis
in
original)
(internal
(quoting Lawrence, 539 U.S. at 567, 578)).
Carolina’s
torts
of
alienation
of
citation
omitted)
In contrast, North
affection
and
criminal
conversation directly address conduct which:
A) injures a person (the victim spouse), see Misenheimer v.
Burris, 360 N.C. 620, 624, 637 S.E.2d 173, 176 (2006) (“[D]amages
for
mental
anguish
conversation.
are
recoverable
in
cases
of
criminal
Wounding a man’s [or woman’s] feelings is as much
actual damages as breaking his [or her] limb.
The difference is
that one is internal and the other external; one mental, the other
physical.
At
common
law
compensatory
damages
include,
upon
principle, and upon authority, salve for wounded feelings. . . .
[The] plaintiff testified that the actions of his wife and [the]
defendant broke his heart very badly.
As Blackstone described the
civil injury in cases of criminal conversation, surely there can be
no greater.” (internal brackets, citation, ellipsis, and quotation
marks omitted)); Cottle v. Johnson, 179 N.C. 426, 429, 102 S.E.
769, 770 (1920) (“[T]he finding . . . that the defendant alienated
the affections of the plaintiff’s wife . . . entitled [him] to
recover compensatory damages, which include loss of the society of
his wife, loss of her affection and assistance, as well as for his
humiliation and mental anguish[.]”); and
-9-
B) abuses a legally-protected institution (marriage), see
McCutchen, 360 N.C. at 284, 624 S.E.2d at 624 (noting that “North
Carolina’s public policy favor[s] the protection of marriage”);
Darnell v. Rupplin, 91 N.C. App. 349, 351, 371 S.E.2d 743, 745
(1988) (“A claim for alienation of affections . . . is based on
transactions . . . that harm the marital relationship.”); Sebastian
v. Kluttz, 6 N.C. App. 201, 209, 170 S.E.2d 104, 109 (1969)
(observing that criminal conversation claims vindicate “fundamental
right that flows from the relation of marriage, and one that must
be maintained inviolate for the well-being of society, of one
spouse to have exclusive marital intercourse with the other”).
Second, the Lawrence Court invalidated the Texas homosexual
conduct statute not just because the conduct at issue merited
protection under the Due Process Clause, but also because “[t]he
Texas statute further[ed] no legitimate state interest which can
justify its intrusion into the personal and private life of the
individual.”
Lawrence,
539
U.S.
at
578
(emphasis
added).
Accordingly, even if the Due Process Clause shields to some degree
adulterous conduct of the sort the Complaint alleges against
Defendant (a conclusion which, as explained above, the plain
language of Lawrence does not support), this Court could strike
-10-
down the alienation of affection and criminal conversation torts
only if they did not further a legitimate state interest.4
North Carolina, however, possesses a legitimate interest in:
A) affording recourse for injury, see Gertz v. Robert Welch,
Inc., 418 U.S. 323, 342 (1974) (recognizing states’ “legitimate
interest in redressing wrongful injury”); Lewis v. Lycoming, 73 F.
Supp. 3d 539, 543 (E.D. Pa. 2014) (“[A state] has an interest in
promoting recovery by providing a full measure of damages at least
for its citizens.”); Citibank, N.A. v. Barclays Bank, PLC, 28 F.
Supp. 3d 174, 184 (S.D.N.Y. 2013) (“Compensating injured parties
for their losses is a legitimate state interest . . . .”); and
B) protecting the sanctity of marriages, see Obergefell v.
Hodges, ___ U.S. ___, ___, 135 S. Ct. 2584, 2601 (2015) (“[The
Supreme] Court’s cases and the Nation’s traditions make clear that
marriage is a keystone of our social order.”); In re Bledsoe, 569
F.3d 1106, 1112 (9th Cir. 2009) (citing “[t]he state’s traditional
interest in the regulation of marriage”); Potter v. Murray City,
4
Defendant has argued that, “[b]ecause a fundamental right is
at issue, a strict scrutiny approach is to be applied to analyze
these torts.” (Docket Entry 7 at 8; see also id. (noting that,
under strict scrutiny, a state “regulation must be closely tailored
to promoting a compelling state interest”).) That argument lacks
merit. As an initial matter, as discussed above, “Lawrence did not
announce a fundamental right of adults to engage in all forms of
private consensual sexual conduct.”
Muth, 412 F.3d at 818.
Further, “[t]he Supreme Court in Lawrence also did not apply strict
scrutiny in reviewing the sodomy statute at issue,” id.; instead,
the Supreme Court invalidated the Texas law because it “further[ed]
no legitimate state interest,” Lawrence, 539 U.S. at 578.
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760 F.2d 1065, 1070 (10th Cir. 1985) (“Monogamy is inextricably
woven into the fabric of our society.
It is the bedrock upon which
our culture is built.”); see also Epstein v. Epstein, 843 F.3d
1147, 1153 (7th Cir. 2016) (Posner, J., concurring) (noting “that
adultery remains a crime in 20 of the nation’s 50 states”).
Moreover, by allowing alienation of affection and criminal
conversation
claims,
North
Carolina
reasonably
furthers
the
foregoing, legitimate interests, because such tort actions permit
victim spouses to obtain redress and discourage third-parties from
wrongfully
interfering
adulterous conduct).
in
marriages
(particularly
through
See Carlson v. Green, 446 U.S. 14, 21 (1980)
(“It is almost axiomatic that the threat of damages has a deterrent
effect . . . .”); Pavelka v. Carter, 996 F.2d 645, 650 (4th Cir.
1993) (describing “traditional tort system goals [as] compensating
victims and deterring misconduct”); Jones v. Reagan, 696 F.2d 551,
554 (7th Cir. 1983) (“[T]ort law . . . has a deterrent as well as
a compensatory function.”); Awalt v. Marketti, No. 11C6142, 2012 WL
1161500, at *13 (N.D. Ill. Apr. 9, 2012) (unpublished) (“Deterrence
is a well-founded part of our system of tort liability and a proper
objective of bringing suit; the common law being an efficient
system of rules that has evolved to deter negligent, willful, and
reckless conduct . . . .”); Bentzlin v. Hughes Aircraft Co., 833 F.
Supp. 1486, 1493-94 (C.D. Cal. 1993) (“First, tort law is based in
large part on deterrence . . . .
A second purpose of tort law is
-12-
to punish tortfeasors. . . .
Finally, tort law is intended to
provide a remedy to innocent victims.”).5
5
According to Defendant, North Carolina’s adoption of nofault divorce “exposes the irrationality of” alienation of
affection and criminal conversation torts. (Docket Entry 7 at 9.)
Specifically, Defendant’s Brief argues that, “[i]f the state truly
wanted to protect [sic] harm to a marriage caused by infidelity,
the legislation [regulating divorce] could have required, in
addition to a year’s separation, that the person wanting the
divorce must be innocent of any infidelity.” (Id.) The notion
that a state cannot authorize any measure to allow recourse for a
spouse victimized by adultery and/or to deter adultery, unless the
state also forces every person seeking a divorce to prove that he
or she has not committed adultery, appears much less rational than
North Carolina’s legal regime. Defendant further has objected that
alienation of affection and criminal conversation claims proceed
“only when the aggrieved spouse chooses to pursue someone that can
pay a judgment. Essentially, this means that many commit the torts
. . . and never face any punishment or liability. If the State
were truly concerned with marriage and the effects [alienation of
affection] and/or [criminal conversation] had on a marriage, the
State would regulate this conduct through a means in which anyone
found to have committed the torts would be punished.” (Id. at 10.)
The Court should reject that line of reasoning, as it effectively
would require judicial invalidation of all tort law (as an
irrational means of promoting asserted governmental interests).
See generally Animal Sci. Prods., Inc. v. China Nat. Metals &
Minerals Import and Export Corp., 702 F. Supp. 2d 320, 423-24
(D.N.J. 2010) (“[T]he legal might of tort principles is present
through the power of the injured party to act as a ‘private
attorney general’ and to rely on government institutions, i.e., the
courts, to civilly penalize the wrongdoer; this is so regardless of
the fact that certain victims of tortious conduct might — and in
fact do — elect not to enforce their rights.”), vacated and
remanded on other grounds, 654 F.3d 462 (3d Cir. 2011).
Next,
Defendant’s Brief complains that alienation of affection and
criminal conversation torts “provide no deterrent effect because
the spouse who engaged in the alleged wrongful conduct (and in many
instances may have initiated the conduct) is free to go about his
or her life without facing punishment for his or her actions. This
disconnect makes plain the lack of rational relationship between
[these torts] and any purported interest in protecting marriage.”
(Docket Entry 7 at 12 (emphasis added).) This argument ignores the
(continued...)
-13-
In sum, the Due Process Clause (as construed in Lawrence) does
not
invalidate
North
Carolina’s
alienation
of
affection
and
criminal conversation torts, because:
1) the Lawrence Court expressly exempted from its holding
sexual conduct (such as the adulterous conduct alleged in the
Complaint) that injures a person (i.e., a victim spouse) and/or
that abuses a lawfully-recognized institution (i.e., marriage); and
2) alienation of affection and criminal conversation torts
further North Carolina’s legitimate interests in providing recourse
for victim spouses and deterring wrongful intrusions into marital
relationships (unlike the criminal statute in Lawrence, which the
Supreme Court found did not further any legitimate state interest).
First Amendment Freedom of Speech
The instant Motion alternatively asks the Court to declare
North Carolina’s alienation of affection tort (but not its criminal
conversation tort) “unconstitutional both facially and as applied
5
(...continued)
fact that North Carolina has enacted laws regarding liability
and/or eligibility for alimony that address spousal “illicit sexual
behavior,” N.C. Gen. Stat. § 50-16.3A. Although one may question
whether North Carolina has chosen the ideal formula for holding
both parties to adultery accountable, Defendant has not shown that
North Carolina’s approach fails to deter adultery at all. Finally,
Defendant has asserted that alienation of affection and criminal
conversation torts “ha[ve] no positive effect on divorce rates [and
thus] cannot be said rationally to promote marriages.” (Docket
Entry 7 at 12.) Even if accepted, that assertion would not alter
the conclusion that these torts reasonably further North Carolina’s
legitimate interest in offering victim spouses a means of redress.
-14-
to the facts set out in [] Plaintiff’s [C]omplaint as a violation
of . . . freedom of speech rights guaranteed by the First Amendment
. . . .”
(Docket Entry 6 at 1.)6
In support of that position,
Defendant’s Brief states that alienation of affection “has no
requirement that an adulterous relationship occur between the
defendant and [the] plaintiff’s spouse.
Instead, it only requires
that there be ‘active participation, initiative, or encouragement
on the part of the defendant in causing one spouse’s loss of the
other spouse’s affections.’” (Docket Entry 7 at 14 (quoting Heller
v. Somdahl, 206 N.C. App. 313, 316, 696 S.E.2d 857, 861 (2010)).)
From
that
premise,
Defendant’s
Brief
reasons
that
an
alienation of affection claim could arise from “the mere expression
of protected speech from one individual to another regarding the
plaintiff spouse’s relationship with that person.
A person can
therefore expose themselves [sic] to liability and punishment for
honestly speaking about their [sic] feelings for a married person.”
(Id.; see also id. at 15 (“[A] co-worker who implores a fellow coworker to leave their [sic] spouse through the use of opinions and
the expression of factually correct information would still be
6
“[A]s a general matter, the First Amendment means that
government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content.” Ashcroft
v. American Civil Liberties Union, 535 U.S. 564, 573 (2002)
(internal quotation marks omitted).
-15-
subject to punishment in the form of civil liability.”).)
This
freedom of speech challenge fails for at least two reasons.
First, Defendant cannot maintain an “as applied” attack based
on the “protected speech” theory articulated in Defendant’s Brief,
because the Complaint does not seek to hold Defendant liable “for
honestly speaking about [his] feelings for [Plaintiff’s spouse]”
(id. at 14) (or “implor[ing] a fellow co-worker to leave [her]
spouse through the use of opinions and the expression of factually
correct information” (id. at 15)); to the contrary, the Complaint
alleges that Defendant committed alienation of affection by having
sexual relations with Plaintiff’s spouse (Docket Entry 3 at 1-2).
“In asserting his as-applied challenge, of course, [Defendant]
cannot obtain relief based on arguments that a differently situated
person might present, or based on other situations not before the
Court.”
United States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012)
(internal citation and quotation marks omitted).
Second, Defendant has not made the showing needed to sustain
either of the two types of First Amendment “facial” challenges.
“To succeed in a typical facial attack, [Defendant] would have to
establish that no set of circumstances exists under which [North
Carolina’s alienation of affection tort law] would be valid, or
that [such law] lacks any plainly legitimate sweep.” United States
v.
Stevens,
559
U.S.
460,
quotation marks omitted).
472
(2010)
(internal
citation
and
Defendant’s Brief establishes no such
-16-
thing and instead effectively concedes that the First Amendment’s
speech protections do not prohibit alienation of affection claims
based on the conduct the Complaint alleges against him (i.e.,
(See Docket Entry 7 at 14-15.)7
adultery).
“In the First Amendment context, however, th[e Supreme] Court
recognizes a second type of facial challenge, whereby a law may be
invalidated
as
applications
are
overbroad
if
a
substantial
unconstitutional,
[law’s] plainly legitimate sweep.”
judged
in
number
of
relation
to
its
the
Stevens, 559 U.S. at 473
(emphasis added) (internal quotation marks omitted); see also
Members of City Council of City of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 800 (1984) (“[T]he mere fact that one can
conceive of some impermissible applications of a statute is not
sufficient to render it susceptible to an overbreadth challenge.”).
“The
first
step
in
overbreadth
analysis
is
to
construe
the
challenged statute; it is impossible to determine whether a statute
reaches too far without first knowing what the statute covers.”
United States v. Williams, 553 U.S. 285, 293 (2008).
As quoted
above, Defendant’s Brief implies that North Carolina law extends
liability for alienation of affection (too) broadly, because it
7
Defendant’s concession on this point accords with persuasive
authority. See, e.g., Oliverson v. West Valley City, 875 F. Supp.
1465, 1485 (D. Utah 1995) (rejecting argument that “adultery
statute infringes on [the] plaintiff’s First Amendment right of
free expression”); Suddarth v. Slane, 539 F. Supp. 612, 617 (W.D.
Va. 1982) (“[A]dultery is not protected by the First Amendment.”).
-17-
“only requires that there be ‘active participation, initiative, or
encouragement on the part of the defendant in causing one spouse’s
loss of the other spouse’s affections.’”
(Docket Entry 7 at 14
(quoting Heller, 206 N.C. App. at 316, 696 S.E.2d at 861); see also
id. at 14-15 (arguing that North Carolina permits an alienation of
affection claim against a person who “honestly speak[s] about [his
or her] feelings for a married person” or a “co-worker who implores
a fellow co-worker to leave [his or her] spouse through the use of
opinions and the expression of factually correct information”).)
In fact, North Carolina law cabins alienation of affection
claims within
a
much
more
limited
sphere than
Defendant has
suggested, by requiring proof of adultery or some other conduct
manifesting a culpable mental state:
One who, without privilege to do so, purposely alienates
[the] affections [of the plaintiff’s spouse] from [the
plaintiff], or who has sexual intercourse with [his or
her spouse], is liable for the harm thereby caused to
[the plaintiff’s] legally protected interests. . . .
The gravamen of the action for alienation of affections
is the [plaintiff’s] loss of [his or] her protected
marital right of the affection, society, companionship
and assistance of [his or her spouse], [but] where there
is no element of sexual defilement of [the plaintiff’s
spouse], malice must be shown.
Malice as used in an
action for alienation of affections means injustifiable
conduct causing the injury complained of. Malice also
means a disposition to do wrong without legal excuse or
as a reckless indifference to the rights of others.
Sebastian, 6 N.C. App. at 206, 170 S.E.2d at 106 (emphasis added)
(internal
citations
and
quotation
-18-
marks
omitted);
see
also
McCutchen, 360 N.C. at 283, 624 S.E.2d at 623 (requiring proof
“that the wrongful and malicious acts of the defendant produced and
brought about the loss and alienation of [the] love and affection
[of the plaintiff’s spouse]” (emphasis added) (internal brackets
and quotation marks omitted)).8
Moreover, North Carolina law
treats this malicious, mens rea element as immunizing third-parties
from liability for simply offering good-faith advice.
See Bishop
v. Glazener, 245 N.C. 592, 597, 96 S.E.2d 870, 874 (1957) (“[A]
parent may advise and assist his or her child in respect to the
latter’s marital relations without liability to the other spouse
for alienation of affections, although separation results, provided
such advice and aid were in good faith, based on a reasonable
belief that the child’s welfare makes them necessary, and were not
from malice or other improper motive.”); see also id. at 596, 96
S.E.2d at 873 (“It is fundamental to a recovery against a third
person
that
the
alienation
of
affections
resulted
from
[the
person’s] malicious interference.” (emphasis added)); Sebastian, 6
N.C. App. at 206, 170 S.E.2d at 106 (recognizing that conduct that
“purposely alienates [the] affections” of the plaintiff’s spouse
does not trigger liability if it qualifies as “privilege[d]”).
8
The Supreme Court has identified a law’s “scienter
requirement” as a matter “important to [the overbreadth] analyis.”
Williams, 553 U.S. at 293-94.
-19-
Given that North Carolina law (A) restricts alienation of
affection claims to “malicious acts,” McCutchen, 360 N.C. at 283,
624
S.E.2d
at
623,
further
defined
as
adultery
or
other
“injustifiable conduct,” Sebastian, 6 N.C. App. at 206, 170 S.E.2d
at 106 (internal quotation marks omitted), undertaken with an
intent “to do wrong without legal excuse,” id. (internal quotation
marks omitted), or with “reckless indifference to the rights of
others,” id. (internal quotation marks omitted), and (B) bars
liability for communications made in “good faith,” Bishop, 245 N.C.
at 597, 96 S.E.2d at 874, or deemed “privilege[d],” Sebastian, 6
N.C. App. at 206, 170 S.E.2d at 106, Defendant cannot show that “a
substantial number of [the] applications [of North Carolina’s
alienation
of
affection
law]
are
unconstitutional,
judged
in
relation to the [law’s] plainly legitimate sweep,” Stevens, 559
U.S. at 473 (emphasis added) (internal quotation marks omitted).
As a result, the Court should deny Defendant’s First Amendment
facial overbreadth challenge.
See Members of City Council, 466
U.S. at 799 (“In the development of the overbreadth doctrine the
[Supreme] Court has been sensitive to the risk that the doctrine
itself might sweep so broadly that the exception to ordinary
standing requirements would swallow the general rule.
decide
whether
the
overbreadth
exception
is
In order to
applicable
in
a
particular case, [the Supreme Court] ha[s] weighed the likelihood
that [a law’s] very existence will inhibit free expression.
-20-
There
comes a point where that effect — at best a prediction — cannot,
with confidence, justify invalidating a [law] on its face and so
prohibiting a State from enforcing the [law] against conduct that
is admittedly within its power to proscribe.” (internal brackets
and quotation marks omitted)).
Simply put, Defendant’s First Amendment freedom of speechbased, as-applied and facial attacks on the North Carolina tort of
alienation of affection lack merit.
CONCLUSION
Defendant has not established that Plaintiff’s Complaint fails
as a matter of law.
IT IS THEREFORE RECOMMENDED that the Court deny Defendant’s
Motion to Dismiss (Docket Entry 6).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 14, 2017
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