United States District Court, M.D. North Carolina
SEAN V. TERRY, Plaintiff,
SWIFT TRANSPORTATION, Defendant.
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
PATRICK AULD, UNITED STATES MAGISTRATE JUDGE
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.
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),  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.)
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.
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.)
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).
Motion to Amend Relief
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).
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,
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.
Motion to Bifurcate
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.
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.
Motion to Strike
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.)
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.
Motion to Leave
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.)
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
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)).
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.
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
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.
the Court denies the Motion to Leave.
Motion to Dismiss
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).
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”