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Brown v. Winman

United States District Court, E.D. North Carolina, Western Division

March 8, 2017

DONALD BROWN, Plaintiff,
v.
GEORGE E. WINMAN, III, Defendant.

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendant's motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure [DE 59] and plaintiffs motion to strike under Rule 12(f) of the Federal Rules of Civil Procedure [DE 77]. The motions have been fully briefed and are ripe for ruling. For the reasons discussed below, plaintiffs motion to strike is denied, and defendant's motion for summary judgment is granted.

         BACKGROUND

         Plaintiff, proceeding pro se, filed his original complaint in the Southern District of New York; the matter was transferred to this Court by order entered February 5, 2015. [DE 3]. Following transfer, defendant moved to dismiss the corrected complaint pursuant to Rule 12(b)(6). [DE 19]. Subsequent to defendant's motion to dismiss, plaintiff moved to amend his corrected complaint in order to withdraw his original claims and to assert claims pursuant to Title VIII of the Civil Rights Act of 1968 (the "Fair Housing Act"), 42 U.S.C. § 1982 ("Section 1982") and for violation of the Thirteenth Amendment. [DE 25, 25-1]. The Court entered an order on October 6, 2015 granting plaintiff leave to amend his complaint to assert a claim pursuant to 42 U.S.C. § 1982, but denying as futile plaintiffs motion for leave to assert a claim for relief under the Thirteenth Amendment. [DE 28]. Plaintiff thereafter filed his amended complaint on November 9, 2015. [DE 29]. The amended complaint listed George Winman as the sole defendant. On November 16, 2015, defendant filed an answer denying the substantive allegations. [DE 31]. With leave of the court, defendant filed an amended answer to plaintiffs amended complaint on March 8, 2016, in which defendant withdrew his abatement defense and set forth additional factual grounds in support of his statute of limitations defense. [DE 47].

         On, July 15, 2016, defendant moved for summary judgment. [DE 59]. After the Court's resolution of plaintiff s motion to amend and motions regarding discovery, he was given additional time to respond. [DE 72]. Plaintiff subsequently filed his response, followed by a motion to strike on February 22, 2017 [DE 73, 77].

         In his amended complaint, plaintiff alleged that defendant trespassed on plaintiffs land and deprived plaintiff access to his land. Specifically, plaintiff alleged that defendant, "without the consent or authority and against the will of the Plaintiff, entered onto Plaintiffs land situated at Nevis Creek Road, Blunts' [sic] Creek, North Carolina 27814." [DE 29 at ¶ 8]. Plaintiff alleges that this trespass was illegal, and that defendant told plaintiff "he would not leave Plaintiffs land because Blacks should not own property and that I don't belong here." Id. at ¶ 9. Plaintiff claimed that, as a result of defendant's actions, he was denied ingress and egress to his property. Id. at ¶ 11. Plaintiff also alleged that defendant told plaintiff that he will continue to trespass and to deprive plaintiff of his right to exclusive enjoyment and possession of his property because of plaintiff s race. Id. at ¶ 12. Plaintiff alleges that defendant told plaintiff that blacks should not own property and that blacks did not belong in Blount's Creek. [DE 75-2].

         In deposition, plaintiff testified that the way he alleges defendant prevented him from accessing his own land is by blocking the driveway running off of Neville Creek Road. [DE 65, Pi's Dep. at 35:1-5]. Plaintiff also testified that when he alleged in his complaint that he was prevented ingress and egress to his property, he is referring to being prevented from using this driveway, id. at 64:6-11, and that when he alleged that defendant's actions constituted an unlawful taking of his land, he was referring to the blocking of the driveway. Id. at 66:4-14. Plaintiff also explained that he does not contend that he owns the driveway, but rather merely contends that he has an easement for use of the driveway. Id. at 20:23-21:5. Plaintiff also confirmed that he does not dispute that defendant has a right to use the driveway, id. at 21:8-13, or that the driveway lies entirely within the boundaries of the defendant's property. Id. at 22:4-6. Plaintiff testified that when he alleged in his complaint that defendant "entered onto Plaintiffs land, " plaintiff was in fact referring this driveway on defendant's property. Id. at 36:5-47:4. Moreover, plaintiff admitted that since defendant's property does not abut any portion of his property, in order for plaintiff to access his property via the driveway on defendant's property, plaintiff would also need to cross over property owned by a third-party. Id. at 24:7-15. Finally, although plaintiff alleges in his amended complaint that defendant has trespassed on his property, stated that, to his knowledge, defendant never stepped foot on his property. Id. at 54:2-4. Instead, the allegations of trespassing in plaintiffs amended complaint relate to the driveway on defendant's property. Id. at 54:5-8.

         Plaintiff filed a lawsuit in North Carolina Superior Court, for the County of Beaufort, against defendant, on or about January 18, 2013. [DE 20-1]. Plaintiff asserted a cause of action to have a property boundary determined and for determination of an easement by necessity. In support of his claims, plaintiff alleged that when he purchased his property, there was a "driveway/lane that ran down the border of the Defendants' property, and which had been used for in excess of fifty years as access to the property purchased by the Plaintiff." Id. at ¶ 5. Plaintiff testified in his deposition for this case that when he alleged in his amended complaint that "Defendant Winman illegally entered into Plaintiffs property, " he was referring to the same driveway that was the subject of this state court lawsuit. [DE 65, Pi's Dep. 47:5-16]. The state court determined that defendant was entitled to summary judgment and entered an order in favor of defendant on all claims. [DE 65, Winman Aff. at ¶ 22; Ex. I].

         Property records show that the driveway that is the subject of this case and which was referenced in plaintiffs state court lawsuit is contained entirely within the boundaries of defendant's property. [DE 65, Winman Aff. at¶ 21; Ex. G; Pi's Dep. at 20:2-20:17]. Records also show that defendant's property does not share a common border with any of plaintiff s land. [DE 65, Winman Aff. at ¶ 19; Ex. F; Ex. G]. There is nothing in the chain of title for the property of either party in this case reflecting an access easement for ingress or egress, whether private or appurtenant, to plaintiffs property across defendant's property. [DE 65, Winman Aff. at ¶ 23]. Moreover, none of plaintiff s property has a common source of title or privity of title to defendant's property. [DE 65, Winman Aff. at ¶ 20].

         Though not alleged in his amended complaint, plaintiff later submitted an affidavit in which he stated that defendant had previously granted plaintiff permission to cross defendant's land for logging purposes and for day-to-day use. [DE 75-2; DE 75, Winman Aff. at 18].

         DISCUSSION

         Motion to Strike

         Plaintiff submitted a motion seeking to strike arguments raised by defendant in his reply memorandum in support of his motion for summary judgment. Plaintiff argues that such arguments are untimely and improper because they were not raised in defendant's initial memorandum in support of his motion for summary judgment. The Court finds plaintiffs motion to be without merit. Contrary to plaintiffs assertion, none of the arguments in defendant's reply brief were raised for the first time in that brief. Rather, each argument was in answer to particular issues raised by plaintiff in his own response. In fact, several of those particular issues to which defendant responded were raised by plaintiff for the first time in plaintiffs response. It was permissible for defendant to address these new issues contained in his reply, and the Court will not strike such arguments. The Court also finds that plaintiff has not demonstrated good cause for which he should be allowed to file a sur-reply. Therefore, plaintiffs motion is denied.

         Motion for ...


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