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Terry v. Swift Transportation

United States District Court, M.D. North Carolina

March 14, 2017

SEAN V. TERRY, Plaintiff,



         This case comes before the undersigned United States Magistrate Judge for a recommendation on “Defendant's Motion to Dismiss” (Docket Entry 10) (the “Motion to Dismiss”), as well as for orders on the “Motion to Amend Relief” (Docket Entry 22), the “Motion to Subpoena” (Docket Entry 16), the “Motion to Compel Discovery” (Docket Entry 26) (the “Motion to Compel”), the “Motion to Bifurcate” (Docket Entry 23), the “Motion to Strike” (Docket Entry 28), and the “Motion to Leave” (Docket Entry 17). For the reasons that follow, the Court (1) will grant the Motion to Amend Relief, (2) will deny the Motion to Subpoena, Motion to Compel, Motion to Bifurcate, Motion to Strike, and Motion to Leave, and (3) should grant in part and deny in part the Motion to Dismiss.


         In March 2016, Sean V. Terry (the “Plaintiff”) commenced this action against Swift Transportation (the “Defendant”) in the United States District Court for the District of Columbia (the “D.C. Court”). (See Docket Entry 1.) As “[n]one of the parties appear to reside or conduct business in the District of Columbia, and it does not appear that any of the events giving rise to . . . [P]laintiff's claims occurred [t]here” (Docket Entry 3 at 1), [1] the D.C. Court transferred the action to this Court (id. at 2). Thereafter, Plaintiff filed an Amended Complaint, which elaborates upon the factual allegations underlying his claims against Defendant. (Compare Docket Entry 5, with Docket Entry 1.)

         Specifically, Plaintiff asserts an invasion of privacy claim regarding the alleged manner in which Defendant's “Medical Review Officer” (occasionally, the “MRO”) conducted his Commercial Driver's License (the “CDL”) physical “[d]uring the week of 01/27/2009, ” when Plaintiff “attended an orientation at [Defendant's] Greer, South Carolina Terminal.” (Docket Entry 5 at 1, 3; see also Docket Entry 14 at 1 (discussing “the 2009 claim of Invasion of Privacy”).) Plaintiff further maintains that Defendant defamed him by falsely reporting to at least six prospective employers that Plaintiff “failed a drug test.” (Docket Entry 5 at 2.) According to Plaintiff, this “libel was last published in June 2015.” (Id.) These false reports, Plaintiff contends, also violate 49 C.F.R. §§ 390.35, 390.37. (Id. at 2-3.) The former regulation prohibits the making of intentionally false statements in records required by the Federal Motor Carrier Safety Regulations (the “FMCSR”), see 49 C.F.R. § 390.35(a), and the latter regulation provides that “[a]ny person who violates [Section 390.35] . . . may be subject to civil or criminal penalties, ” 49 C.F.R. § 390.37.

         Additionally, Plaintiff contends that Defendant violated his rights under the Fair Credit Reporting Act (the “FCRA”) when Defendant sent him home from “orientation at the Greer, South Carolina Terminal in 2014” without “provid[ing] a reason” for his termination. (Id. at 2.) Finally, Plaintiff asserts a Title VII discrimination claim against Defendant for allegedly “Black Ball[ing]” him with other employers and terminating his participation in Defendant's orientation for racial reasons. (Id.) In connection with these claims, the Amended Complaint “seeks $23 million dollars compensatory and punitive damages, and an injunction.” (Id. at 3.)

         Defendant moved to dismiss Plaintiff's Amended Complaint. (See Docket Entry 10.) In addition to responding to Defendant's Motion to Dismiss (see Docket Entries 14-15), Plaintiff filed multiple motions (see Docket Entries 16-17, 22-23, 26, 28), to which Defendant responded (see Docket Entries 19-20, 24-25, 27, 29).


         I. Plaintiff's Motions

         A. Motion to Amend Relief

         Plaintiff seeks leave to add the following as requested relief in his Amended Complaint: “Plaintiff's Court costs, all Court related expenses, Court related travel fees, and, possible Attorney(s) fees.” (Docket Entry 22 at 1.) At this stage of the proceedings, Plaintiff may amend his Amended Complaint “only with [Defendant's] written consent or the [C]ourt's leave.” Fed.R.Civ.P. 15(a)(2). Defendant consents to the requested amendment. (See Docket Entry 25 at 2 (“Defendant does not object to the motion to the extent it identifies the damages he is seeking.”).) Accordingly, the Court will grant the Motion to Amend and deem the Amended Complaint to include as requested relief “Plaintiff's Court costs, all Court related expenses, Court related travel fees, and, possible Attorney(s) fees” (Docket Entry 22 at 1).

         B. Discovery Motions

         Plaintiff also seeks discovery from Defendant through the Motion to Subpoena and Motion to Compel. As its name suggests, the Motion to Subpoena seeks to subpoena certain documents from Defendant. (See Docket Entry 16 at 1.) In addition, the Motion to Compel seeks to compel a response to Plaintiff's “Request for Production of Documents, ” which Defendant allegedly “ha[s] not responded to, nor seemed to even have acknowledge[d].” (Docket Entry 26 at 1.) Defendant opposes both motions as premature and, in regard to the Motion to Subpoena, as an improper discovery vehicle. (See generally Docket Entries 20, 27.)

         The Court has not yet entered a case-management scheduling order in this action. (See Docket Entries dated Mar. 8, 2016, to present.) As such, the parties lack authorization to conduct discovery. See M.D. N.C. L.R. 16.1(a); see also Fed.R.Civ.P. 26(d)(1). Accordingly, the Court will deny as premature the Motion to Subpoena and Motion to Compel. After the Court authorizes discovery through the establishment of the case-management schedule, Plaintiff may pursue proper discovery regarding any claim that survives Defendant's Motion to Dismiss.

         C. Motion to Bifurcate

         Plaintiff further asks for “this Trial to be divided into two Parts, separate (Liability and Damages) proceedings.” (Docket Entry 23 at 1.) Defendant opposes this request. (See Docket Entry 24.) “For convenience, to avoid prejudice, or to expedite and economize, the [C]ourt may order a separate trial of one or more separate issues . . . .” Fed.R.Civ.P. 42(b). The Court possesses considerable discretion regarding bifurcation. F & G Scrolling Mouse, L.L.C. v. IBM Corp., 190 F.R.D. 385, 387 (M.D. N.C. 1999); see also White v. Bloomberg, 501 F.2d 1379, 1385 (4th Cir. 1974) (“We hold that the district courts are free to tailor an appropriate procedure to fit the facts and the pleadings and to select what seems best for a given case.”). Nevertheless, bifurcation remains an unusual event, as generally “a single trial will be more expedient and efficient.” F & G Scrolling Mouse, 190 F.R.D. at 387.

         The party seeking bifurcation “bears the burden of convincing the [C]ourt that such an exercise of its discretion will (1) promote greater convenience to the parties, witnesses, jurors, and the [C]ourt, (2) be conducive to expedition and economy, and (3) not result in undue prejudice to any party.” Id.; accord Toler v. Government Employees Ins. Co., 309 F.R.D. 223, 225 (S.D. W.Va. 2015). “Merely presenting some proof which supports bifurcation is not enough” to satisfy this burden. F & G Scrolling Mouse, 190 F.R.D. at 387. Here, Plaintiff presents no arguments, let alone evidence, suggesting that bifurcation would promote judicial economy and avoid undue prejudice to Defendant. (See generally Docket Entry 23.) Thus, the Court will deny the Motion to Bifurcate.

         D. Motion to Strike

         Plaintiff additionally moves “to strike out the Defendant's false information.” (Docket Entry 28 at 1.) In so doing, Plaintiff identifies various statements in Defendant's Motion to Dismiss and supporting memorandum, but offers little explanation of the purported errors in the identified statements. (See id. at 1-3.) Rather, Plaintiff urges the Court to “[f]act check the [D]efendant's claims, and you will see why I now move to submit this Motion to Strike.” (Id. at 3.)

         Rule 12(f) of the Federal Rules of Civil Procedure (the “Rules”) authorizes courts to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f) (emphasis added). Rule 7(a) identifies which documents qualify as pleadings in federal cases. JHRG LLC v. StormWatch, Inc., No. 1:09cv919, 2011 WL 3111971, at *5 (M.D. N.C. July 26, 2011); see also General Tire & Rubber Co. v. Watkins, 331 F.2d 192, 195-96 (4th Cir. 1964) (analyzing whether filing constituted “a pleading within the meaning of [the] Rule[s]” by reference to Rule 7(a), which “defines pleadings”). Under Rule 7(a), the complaint; any third-party complaint; answers to (1) such complaints, (2) any crossclaims, and (3) any counterclaims; and, “if the [C]ourt orders one, a reply to an answer, ” constitute the pleadings. Fed.R.Civ.P. 7(a). This definition does not include motions to dismiss and their supporting memoranda. See id. Therefore, the Court will deny the Motion to Strike.

         E. Motion to Leave

         Finally, Plaintiff requests “that, a Motion to Leave be granted for a Time Extension, of the Time barred claim of Invasion of Privacy/Intrusion of Solitude.” (Docket Entry 17 at 1.) Defendant opposes the Motion to Leave on the grounds that courts lack authority to extend a statute of limitations under either North Carolina or South Carolina law. (See Docket Entry 19 at 2.)

         To resolve Plaintiff's Motion to Leave, the Court must first determine the applicable law. As a general rule, when exercising either supplemental or diversity jurisdiction over state-law claims, federal courts apply the choice-of-law rules of the state in which they sit. ITCO Corp. v. Michelin Tire Corp., Commercial Div., 722 F.2d 42, 49 n.11 (4th Cir. 1983), on reh'g, 742 F.2d 170 (4th Cir. 1984); Bethel v. Federal Express Corp., No. 1:09cv613, 2010 WL 3242651, at *5 (M.D. N.C. Aug. 16, 2010). Thus, the Court would normally apply North Carolina's choice of law rules to Plaintiff's state-law claims. See Bethel, 2010 WL 3242651, at *5.

         However, the fact that Plaintiff initiated this action in the D.C. Court, which then transferred it to this Court, complicates the choice-of-law analysis. See Martin v. Stokes, 623 F.2d 469, 473 (6th Cir. 1980) (explaining “that the choice of law is dependent on the nature of the transfer”). If the D.C. Court transferred this action pursuant to 28 U.S.C. § 1404(a), the Court must apply the choice-of-law rules applicable in the D.C. Court. See Pender v. Bank of Am. Corp., 788 F.3d 354, 369 (4th Cir. 2015); Martin, 623 F.2d at 473. Conversely, if the D.C. Court transferred this action pursuant to 28 U.S.C. § 1406(a), the choice-of-law rules that govern in this Court would apply. See Ellis v. Great Sw. Corp., 646 F.2d 1099, 1110 (5th Cir. 1981) (“[F]ollowing a section 1406(a) transfer, . . . the transferee court must apply the choice of law rules of the state in which it sits.”); Martin, 623 F.2d at 473; see also Proctor v. Morrissey, 97 F.3d 1448, *5 (4th Cir. 1996) (unpublished) (observing that D.C. law “would apply” if case were transferred from Virginia to D.C. under 28 U.S.C. § 1406(a)).

         For the convenience of the parties or witnesses, Section 1404(a) authorizes transfers between courts possessing venue over the action. 28 U.S.C. § 1404(a); see Van Dusen v. Barrack, 376 U.S. 612, 634 (1964) (observing that Section “1404(a) operates on the premises that the plaintiff has properly exercised his venue privilege”). Conversely, Section 1406(a) authorizes a court that lacks venue over an action to transfer it to a court “in which it could have been brought” initially. 28 U.S.C. § 1406(a); see Van Dusen, 376 U.S. at 634 (explaining that Section “1406(a) provides for transfer from forums in which venue is wrongly or improperly laid”). Here, the D.C. Court determined that “venue in the District of Columbia is improper.” (Docket Entry 3 at 1.) Accordingly, its transfer of this action occurred pursuant to 28 U.S.C. § 1406(a). See Van Dusen, 376 U.S. at 634. Therefore, North Carolina's choice-of-law rules govern this action.

         Under North Carolina's choice-of-law rules, the law of the forum (i.e., North Carolina) applies to procedural issues. See Boudreau v. Baughman, 322 N.C. 331, 335, 368 S.E.2d 849, 853-54 (1988) (“Our traditional conflict of laws rule is that matters affecting the substantial rights of the parties are determined by lex loci, the law of the situs of the claim, and remedial or procedural rights are determined by lex fori, the law of the forum.”); see also Stack v. Abbott Labs., Inc., No. 1:12cv148, 2016 WL 4491410, at *3 (M.D. N.C. Aug. 24, 2016) (examining choice-of-law rules), report and recommendation adopted, No. 1:12cv148, 2016 WL 5679028 (M.D. N.C. Sept. 30, 2016). Under North Carolina law, statutes of limitations qualify as procedural rather than substantive. See Boudreau, 322 N.C. at 340, 368 S.E.2d at 857; see also Stack, 2016 WL 4491410, at *3. Thus, North Carolina law governs the statute of limitations issues in this action. See MedCap Corp. v. Betsy Johnson Health Care Sys., Inc., 16 F. App'x 180, 182 (4th Cir. 2001) (“Since the North Carolina courts would apply North Carolina's own statute of limitations to this action, North Carolina law governs this issue.” (citation omitted)); Stack, 2016 WL 4491410, at *3 (“Having determined that the statute of limitations is procedural, the Court will determine whether [the plaintiff's] claims are barred under North Carolina law.”).

         Under North Carolina law, courts lack authority to extend an expired statute of limitations. See Wilkes Cty. v. Forester, 204 N.C. 163, 167 S.E. 691, 694-95 (1933); Congleton v. City of Asheboro, 8 N.C.App. 571, 573, 174 S.E.2d 870, 872 (1970). North Carolina imposes a three-year statute of limitations on invasion of privacy claims. See Aikens v. Ingram, 524 F. App'x 873, 878 (4th Cir. 2013); see also Losing v. Food Lion, L.L.C., 185 N.C.App. 278, 284, 648 S.E.2d 261, 265 (2007) (citing N.C. Gen. Stat. § 1-52(5)). Plaintiff's invasion of privacy claim concerns events in January 2009. (See Docket Entry 5 at 1; see also Docket Entry 14 at 1 (discussing “the 2009 claim of Invasion of Privacy”).) The three-year statute of limitations had thus expired before Plaintiff initiated this action in March 2016 (see Docket Entry 1). The Court therefore lacks authorization to grant the requested extension of the statute of limitations. See Congleton, 8 N.C.App. at 573, 174 S.E.2d at 872.

         Accordingly, the Court denies the Motion to Leave.

         II. Motion to Dismiss

         A. Applicable Standards

         Defendant moves to dismiss Plaintiff's Amended Complaint pursuant to Rule 12(b)(6). (See Docket Entry 10 at 1.) To avoid such dismissal, a complaint must contain sufficient factual allegations “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)). To qualify as plausible, a claim needs sufficient factual content to support a reasonable inference of the defendant's liability for the alleged misconduct. Id. Facts that remain “‘merely consistent with'” liability fail to establish a plausible claim for relief. Id. (quoting Twombly, 550 U.S. at 557). However, the complaint need not contain detailed factual recitations, as long as it provides the defendant “fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks and alteration omitted).

         In reviewing a motion to dismiss, the Court must “accept the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff.” Coleman v. Maryland Court of Appeals, 626 F.3d 187, 189 (4th Cir. 2010), aff'd sub nom., Coleman v. Court of Appeals of Md., 566 U.S. 30 (2012). The Court must also “draw all reasonable inferences in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (internal quotation marks omitted). Moreover, a pro se complaint must “be liberally construed” and ...

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