United States District Court, M.D. North Carolina
LISA A. GREGORY, Plaintiff,
MONTE BRUCE, MONTE BRUCE d/b/a THE PACKAGING STORE, PENSKE TRUCK LEASING CO., LP, and MARK W. SHUE, Individual and in His Official Capacity as a Police Officer of the Salisbury Police Department, and CITY OF SALISBURY, Defendants.
Carlton Tilley, Jr. Senior United States District Judge
Order, Memorandum Opinion, and Recommendation of the United
States Magistrate Judge [Doc. #38] was filed with the Court
in accordance with 28 U.S.C. § 636(b) and, on August 25,
2016, was served on the parties in this action. Plaintiff
Lisa A. Gregory timely filed Objections to the Recommendation
to which Defendants Penske Truck Leasing Company
(“Penske”) and Monte Bruce responded.
(See Pl.'s Obj. to Recommendation [Doc. #40];
Def. Penske's Am. Resp. to Pl.'s Obj. to
Recommendation [Doc. #43]; Resp. to Pl.'s Obj. to
Recommendation [Doc. #44].) The Court has reviewed the Order
for a protective order to which Gregory objected and has
determined that it is not clearly erroneous or contrary to
law. The Court has also reviewed the portions of the
Recommendation to which objection was made and has made a
de novo determination to adopt the Recommendation
except as to the dismissal of Gregory's claim of
malicious prosecution against Bruce as barred by the statute
Bruce, including Monte Bruce d/b/a The Packaging Store, moved
to dismiss Count V (violation of 42 U.S.C. § 1985) as
barred by the statute of limitations and otherwise failing to
state a claim for which relief can be granted and Count VI
(unfair and deceptive trade practice) as barred by the
statute of limitations. (See Mot. to Dismiss [Doc.
#10]; Br. in Supp. of Mot. to Dismiss [Doc. #12].) Defendant
Penske moved to dismiss Count III (malicious prosecution) for
failure to state a claim upon which relief can be granted and
Counts V and VI as barred by the statute of limitations and
for otherwise failing to state a claim for which relief can
be granted. (See Mot. to Dismiss [Doc. #6]; Br. in
Supp. of Mot. to Dismiss [Doc. #7].) In addition to the
motions to dismiss, Bruce and Penske each moved for
protective orders (see [Docs. #31, 33]) and Gregory
moved to remand the case to state court (see [Doc.
#17]). The Magistrate Judge ordered that Bruce's and
Penske's motions for protective orders be granted,
recommended denying Gregory's motion to remand, and
recommended granting Bruce's and Penske's motions to
objections, Gregory affirmatively represented that she agreed
with the Magistrate Judge's recommendation as to her
motion to remand and the motions to dismiss Counts V and VI
as barred by the statute of limitations. (Pl.'s Obj. to
Recommendation at 3-4.) However, she objected to various
factual references in the Recommendation (id. at
4-7), the finding that her malicious prosecution claim
against Bruce is time-barred (id. at 7-8), the
analysis of Bruce's relationship with Penske
(id. at 9-17), and the granting of the motions for
protective orders (id. at 18).
appropriate review, it is determined that Gregory is correct
that Bruce did not raise the statute of limitations as a bar
to the malicious prosecution claim. (See id. at 9.)
By failing to do so, Bruce has waived that defense. Cf.
Peterson v. Air Line Pilots Ass'n, Int'l, 759
F.2d 1161, 1164 (4th Cir. 1985) (“It is well settled
that the defense of limitations is waived unless asserted
promptly by way of answer or motion.”). Furthermore,
because Bruce did not otherwise challenge the sufficiency of
the allegations against him for malicious prosecution, that
claim against Bruce is not dismissed.
the malicious prosecution claim against Bruce stands, it
falls as against Penske. The Magistrate Judge concluded the
same, both because of the time bar of the claim against Bruce
and because the claim is not plausible on its face.
(Recommendation at 19-24.) The Court agrees with the latter.
Assuming arguendo that Gregory sufficiently alleged
that Bruce was an agent of Penske, it is plausible that Bruce
had some authority to collect on a debt owed for the rental
of a Penske truck. See, e.g., Dickerson v. Atl.
Refining Co., 159 S.E. 446 ( N.C. 1931). However, it is
not plausible that Penske gave Bruce the authority to do what
he is alleged to have done - report a felony larceny of that
truck when, in fact, it had been returned and when the only
dispute was over the amount of rent due. Not only did Penske
not plausibly give Bruce the authority to do what is alleged,
but, as the Magistrate Judge explained, Gregory's
allegations suggest that Penske did not ratify Bruce's
conduct. Therefore, Gregory has failed to state a claim of
malicious prosecution against Penske.
reasons stated herein, IT IS HEREBY ORDERED that the Order,
Memorandum Opinion, and Recommendation of the United States
Magistrate Judge [Doc. #38] is ADOPTED IN PART. IT IS FURTHER
ORDERED that Defendant Penske Truck Leasing Company's
Motion to Dismiss [Doc. #6] is GRANTED, Plaintiff Lisa A.
Gregory's Motion to Remand [Doc. #17] is DENIED,
Defendant Penske Truck Leasing Company's Motion for
Protective Order [Doc. #31] is GRANTED, and Defendant Monte
Bruce's Motion for Protective Order [Doc. #33] is
GRANTED. IT IS FURTHER ORDERED that Defendant Monte
Bruce's Motion to Dismiss [Doc. #10] is GRANTED IN PART
AND DENIED IN PART in ...