United States District Court, E.D. North Carolina, Western Division
ANTOINETTE L. FORD, Plaintiff,
EXELIS SYSTEMS CORPORATION, SCOTT MEIER, GREGORY ARRINGTON; and JEFFREY GRAZER, Defendants.
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE.
24, 2017, Exelis Systems Corporation, Scott Meier, Gregory
Arrington, and Jeffrey Grazer, ("defendants") moved
to dismiss Antoinette L. Ford's ("Ford" or
"plaintiff') tortious interference with contract
claim, equal protection claim, and wrongful discharge in
violation of North Carolina public policy claim [D.E. 12] and
filed a memorandum in support [D.E. 13]. See Fed. R.
Civ. P. 12(b)(6). On August 16, 2017, Ford responded in
opposition and argued that the court should not dismiss her
wrongful discharge in violation of North Carolina public
policy claim [D.E. 15]. Ford did not address defendants'
arguments concerning her tortious interference with contract
claim or her equal protection claim. Id. On August
30, 2017, defendants replied [D.E. 17]. As explained below,
the court grants defendants' motion to dismiss and
dismisses the three claims.
motion to dismiss under Rule 12(b)(6) tests the legal and
factual sufficiency of the complaint. See Fed.R.Civ.P.
12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007); Coleman v. Md. Court of Appeals, 626
F.3d 187, 190 (4lh Cir. 2010), affd. 566 U.S. 30
(2012); Giarratano v. Johnson, 521 F.3d 298, 302
(4th Cir. 2008); accord Erickson v. Pardus, 551 U.S.
89, 93-94 (2007) (per curiam). The court "accepts all
well-pled facts as true and construes these facts in the
light most favorable to the plaintiff in weighing the legal
sufficiency of the complaint." Nemet Chevrolet Ltd.
v. Consumeraffairs.com. Inc., 591 F.3d 250, 255 (4th
Cir. 2009); see Burbach Broad. Co. of Del v. Elkins Radio
Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). The court
need not, however, accept as true a complaint's
"legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement."
Nemet Chevrolet Ltd., 591 F.3d at 255. Moreover,
this court can consider documents relied on by the parties in
their briefing if they are integral to and explicitly relied
on in the complaint and their authenticity is undisputed. See
E.I du Pont de Nemours and Co. v. Kolon Industries.
Inc., 637 F.3d 435, 448 (4th Cir. 2011).
motion to dismiss under Rule 12(b)(6) "generally cannot
reach the merits of an affirmative defense, such as the
defense that the plaintiff s claim is time-barred."
Goodman v. Praxair. Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (en banc). Nevertheless, a district court may
reach the merits of an affirmative defense "if all facts
necessary to the affirmative defense clearly appear on the
face of the complaint." Id. (emphasis omitted).
"A complaint showing that the statute of limitations has
run on the claim is the most common situation in which the
affirmative defense appears on the face of the pleading,
rendering dismissal appropriate." Brooks v. City of
Winston-Salem. N.C., 85 F.3d 178, 181 (4th Cir. 1996)
(quotation omitted). Thus, failure to comply with the statute
of limitations is "a recognized basis for
dismissal" under Rule 12(b)(6). Evans v. Trinity
Indus.. Inc., 137 F.Supp.3d 877, 881 (E.D. Va. 2015);
see Brooks, 85 F.3d at 181; West v. ITT
Cont'l Banking Co., 683 F.2d 845, 846 (4th Cir.
motion to dismiss requires the court to consider the
Ford's two state-law claims, which both arise under North
Carolina law. Accordingly, the court must predict how the
Supreme Court of North Carolina would rule on any disputed
state-law issue. See Twin City Fire Ins. Co. v. Ben
Arnold-Sunbelt Beverage Co. of S.C., 433 F.3d 365, 369
(4th Cir. 2005). In doing so, the court must look first to
opinions of the Supreme Court of North Carolina. See
Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir.
2016). If there are no governing opinions from the Supreme
Court of North Carolina, this court "may consider lower
court opinions[, ]... treatises, and the practices of other
states." Twin City Fire Las. Co., 433 F.3d at
369 (quotation omitted). In doing so, a federal court
"should not create or expand [a] [s]tate's public
policy." Time Warner Entm't-Advance/Newhouse
P'ship v. Carteret-Craven Elec. Membership Corp.,
506 F.3d 304, 314 (4th Cir. 2007) (first alteration in
original) (quotation omitted); Wade v. Danek Med.,
Inc., 182 F.3d 281, 286 (4th Cir. 1999). Moreover, in
predicting how the highest court of a state would address an
issue, this court must "follow the decision of an
intermediate state appellate court unless there is persuasive
data that the highest court would decide differently."
Toloczko, 728 F.3d at 398 (quotation omitted).
tortious interference with contract claims arose on May 31,
2013. See Compl. [D.E. l-l]¶¶36-51. Ford did not
file suit until May 31, 2017. See[D.E. l] ¶1. North
Carolina's three-year statute of limitations bars this
claim. See N.C. Gen. Stat. § 1-52(1); Scott v. Town
of Taylortown, No. 1:13-cv-834, 2014 WL 4114313, at *11
(M.D. N.C. Aug. 20, 2014) (unpublished); Phillips v Pitt
Cty. Mem'l Hosp., Inc.. 222 N.C.App. 511, 520, 731
S.E.2d 462, 468-69 (2012). Thus, the court dismisses the
Ford's equal protection claim (Compl. ¶¶
78-84), defendants are not state actors. Thus, the court
dismisses the claim. See, e.g.. Dowe v. Total
Action Against Poverty in Roanoke Valley, 145
F.3d 653, 658-60 (4th Cir. 1998).
Ford's wrongful discharge claim in violation of North
Carolina public policy claim, Ford relies on N.C. Gen. Stat.
§ 143-422.2 as the source of North Carolina's public
policy and alleges that defendants terminated her employment
due to her race and sex. See Compl. ¶¶ 12-35. Ford
cannot pursue her wrongful discharge claim against defendants
Meier, Arlington, and Grayer because they are individuals and
are not considered "employers" under North Carolina
law. See Inglesias v. Wolford, 539 F.Supp.2d 831,
840 (E.D. N.C. 2008) (collecting cases). Thus, the court
dismisses the claim against those three defendants.
defendant Exelis Systems Corporation, Ford's wrongful
discharge claim is subject to a three-year statute of
limitations. See, e.g., Harris v. Cmty Alts., No.
5:11-CV-52-D, 2011 WL 2111851, at *2 (E.D. N.C. May 26, 2011)
(unpublished) (collecting cases). Ford was discharged on May
31, 2013, but did not file suit until May 31, 2017. See [D.E.
1-1] 4; Compl. ¶¶ 12-35. Thus, North Carolina's
three-year statute of limitation appears to bar her claim.
opposition, Ford argues that the North Carolina General
Assembly eliminated her wrongful discharge cause of action on
March 23, 2016, and restored the cause of action on July 18,
2016. See [D.E. 13] 3-4. According to Ford, she had one year
from July 18, 2016, to file her wrongful discharge claim. See
Id. at 3-6. Thus, Ford contends that her wrongful
discharge claim is timely.
a statute of limitations is shortened by legislative
amendment, a reasonable time is given for the commencement of
an action before the amended statute works a bar."
Gannon v. Champion Residential Servs., Inc., No.
3:16CV756-RJC-DSC, 2017 WL 780882, at *2 (W.D. N.C. Feb. 3,
2017) (unpublished) (quotation and alteration omitted). A
"Reasonable time shall be the balance of the time
unexpired according to the law as it stood when the amending
act is passed, provided it shall never exceed the time
allowed by the new statute." Id. (quotation and
alteration omitted); see Carson v. Norfolk & C.R.
Co., 128 N.C. 95, 38 S.E. 287, 288 (1901); Culbreth
v. Dowing, 121 N.C. 205, 28 S.E. 294, 294-95 (1897);
Reunion Land Co. v. Vill. of Marvin, 129 N.C.App.
249, 251, 497 S.E.2d 446, 448 (1998); Spauldine v. R.J.
Reynolds Tobacco Co., 93 N.C.App. 770, 773, 379 S.E.2d
49, 51 (1989), afFd, 326 N.C. 44, 387 S.E.2d 168 (1990).
limitations period for Ford's cause of action ran from
May 31, 2013, until the General Assembly eliminated her
wrongful discharge cause of action on March 23, 2016, by
enacting North Carolina General Assembly House Bill 2, S.L.
2016-3 ("HB2"). At that point, Ford had two months
and eight days of unexpired time remaining before the
three-year statute of limitations would have run. On July 18,
2016, the North Carolina General Assembly enacted House Bill
169, S.L. 2016-9 ("HB169"), which restored
Ford's wrongful discharge cause of action, but with a
one-year statute of limitation. Accordingly, on July 18,
2016, Ford's wrongful discharge claim was viable, but she
had to file within the shorter of (1) her remaining unexpired
time (i.e., two months and eight days) or (2) the new
one-year statute of limitations. See, e.g.. Gannon,
2017 WL 780882, at *2; Reunion Land Co.,
129 N.C.App. at 251, 497 S.E.2d at 448; Spaulding,
93 N.C.App. at 773, 379 S.E.2d at 49. Because Ford did not
file her wrongful discharge claim by September 26, 2016
(i.e., two months and eight days after July 18, 2016), her
wrongful discharge claim is untimely. Thus, the court
dismisses the claim.
the court GRANTS defendants partial motion to dismiss [D.E.
12] and DISMISSES plaintiffs wrongful discharge claim,