United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen United States District Judge.
matter is before the Court upon the Defendants' Motion to
Dismiss, filed September 18, 2017 (Doc. No. 24). The pro
se Plaintiffs have filed a response in opposition.
Defendants have not filed a Reply and the time for doing so
has expired. Accordingly, this matter is ripe for
August 16, 2017, Plaintiffs Robert and Jill Berg, the parents
of Haley Berg, brought this action alleging tortious
interference with parental rights, alienation of affection,
intrusion upon seclusion, and negligent and intentional
infliction of emotional distress in connection with their
daughter against Defendants James and Tina Murratti, a
married couple from Pendleton, South Carolina, and Cheryl
Gonzalez, the sister of Plaintiff Jill Berg. Plaintiffs
allege that the Murrattis, along with Defendant Gonzalez,
conspired to interfere with Plaintiffs' parental rights
and communication with Haley beginning in the fall of 2016,
when Haley was 17 years old. Moreover, Plaintiffs' allege
that due to Haley's fragile state of mind, Defendants
conspired to conceal Haley's whereabouts from Plaintiffs,
and have exerted undue influence over Haley. Plaintiffs are
residents of the State of North Carolina. Defendants James
and Tina Murratti are residents of the State of South
Carolina. Defendant Cheryl Gonzalez is a resident of Lake
Worth, Florida. Defendants have moved to dismiss pursuant to
Rules 12(b)(1), (b)(2), and (b)(6) of the Federal Rules of
Court will first address Defendants' challenges to
subject matter and personal jurisdiction. This is a diversity
case, and Defendants argue that Plaintiffs' Complaint
fails to allege the requisite amount in controversy of $75,
000. Plaintiffs' Complaint states that they are seeking,
"among other remedies, equitable relief in the form of
compensatory and punitive damages, and Plaintiffs' claims
for damages exceeds seventy-five thousand dollars ($75,
000.00), exclusive of interests and costs, as a direct result
of all Defendants' tortious actions directed against
Plaintiffs." (Compl. ¶ 9). In making a
determination as to whether Plaintiffs' Complaint meets
the $75, 000 threshold in damages, “the court should
look to the face of the complaint itself to determine whether
it is a legal certainty that plaintiff's claims do not
reach the required amount.” Shanaghan v.
Cahill, 58 F.3d 106, 112 (4th Cir. 1995). “Unless
the claim for an amount over the jurisdictional prerequisite
is made in bad faith, or unless it is plain from the
complaint that an amount less than the jurisdictional amount
is all that is at issue, the district court has jurisdiction
over the case.” Id. From the face of the
Complaint, the Court cannot determine that it is a legal
certainty that Plaintiffs' claims do not reach the
jurisdictional amount. Accordingly, the Court must deny the
motion to dismiss on this basis.
Court next turns to Defendants' challenge to personal
jurisdiction. The Defendants have each submitted a brief
affidavit claiming to have no contacts with North Carolina.
However, at this juncture the Plaintiffs need only make a
prima facie showing of jurisdiction. See Mylan
Laboratories, Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th
Cir. 1993) (holding that where the court rules on a 12(b)(2)
motion relying on the complaint, briefs, and affidavits
alone, without conducting an evidentiary hearing, the burden
is on the plaintiff to make a prima facie showing
that personal jurisdiction exists). As for the facts,
“the court must construe all relevant pleading
allegations in the light most favorable to the plaintiff,
assume credibility, and draw the most favorable inferences
for the existence of jurisdiction.” Combs v.
Bakker, 886 F.2d 673, 676 (4th Cir. 1989). The Court
finds that Plaintiffs' Complaint is sufficient to make a
prima facie showing of specific personal
jurisdiction at this stage of the litigation.
determined that the Court retains jurisdiction over this
matter, the Court will address the Defendants' 12(b)(6)
motion. To survive a motion to dismiss, Plaintiffs must make
factual allegations which “raise a right to relief
above the speculative level” and plead “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 545-47 (2007), Ashcroft v. Iqbal, 556 U.S. 662
(2009). The court must view the complaint in the light most
favorable to the plaintiff and take the plaintiff's
allegations as true. Randall v. United States, 30
F.3d 518, 522 (4th Cir. 1994). Moreover, the Fourth Circuit
requires district courts to construe pro se
complaints liberally to ensure that valid claims do not fail
for lack of legal specificity. Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978). However, this liberal
construction need not extend to outright advocacy for the
pro se plaintiff. Id. Like plaintiffs who
are represented by counsel, a pro se plaintiff must
still “allege facts sufficient to state all the
elements of [the] claim.” Bass v. E.I. Dupont de
Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). In
light of Twombly and Bass, conclusory
statements with insufficient factual allegations, even when
asserted by pro se plaintiffs, will simply not
first claim is for Tortious Interference with Parental Rights
and Alienation of Affection. Plaintiffs cite Howell v.
Howell, 178 S.E. 222, 224 ( N.C. 1913) as authority for
their claim, but Howell involved a custody dispute
between parents. Moreover, North Carolina only recognizes the
tort of Alienation of Affection as a tort between spouses.
See Jones v. Skelley, 673 S.E.2d 385, 390 ( N.C. Ct.
App. 2009) ("A claim for alienation of affections is
comprised of wrongful acts which deprive a married person of
the affections of his or her spouse - love, society,
companionship and comfort of the other spouse."
(citation and quotation marks omitted)). The absence of any
North Carolina law recognizing these claims against
non-parent third parties is fatal to Plaintiffs' claim.
See McCants v. National Collegiate Athletic
Ass'n, 201 F.Supp.3d 732, 748-49 (M.D. N.C. 2016)
(“[A] federal court sitting in diversity, as this
Court, cannot expand North Carolina law or policy
‘farther than any North Carolina court has been willing
to go.'” (citation omitted)).
Two of Plaintiffs' Complaint alleges a claim for
Intrusion upon Seclusion. “The tort of invasion of
privacy by intrusion into seclusion has been recognized in
North Carolina and is defined as the intentional intrusion
‘physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns . . .
[where] the intrusion would be highly offensive to a
reasonable person.'” Toomer v. Garrett,
574 S.E.2d 76, 90 ( N.C. Ct. App. 2002) (quoting Miller
v. Brooks, 472 S.E.2d 350, 354 ( N.C. Ct. App. 1996)).
Examples of recognized intrusions upon seclusion include
“physically invading a person's home or other
private place, eavesdropping by wiretapping or microphones,
peering through windows, persistent telephoning, unauthorized
prying into a bank account, and opening personal mail of
another.” Id. (quoting Hall v. Post,
355 S.E.2d 819, 823 ( N.C. Ct. App. 1987)). The allegations
in Plaintiffs' Complaint are not of the nature of those
recognized by North Carolina courts as constituting this type
of tort. Again, the Court is unwilling to expand North
Carolina law. Accordingly, this claim must be dismissed.
Plaintiffs allege a claim for Negligent and Intentional
Infliction of Emotional Distress. However, the facts in the
Complaint allege intentional conduct only. See
Compl. ¶ 59. Such a claim requires “extreme and
outrageous conduct.” See Dickens v. Puryear,
276 S.E.2d 325, 335 ( N.C. 1981). Extreme and outrageous
conduct is defined as conduct that is "so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community."
Smith-Price v. Charter Behavioral Health Sys., 595
S.E.2d 778, 782 ( N.C. Ct. App. 2004) (citation omitted). The
Court finds that Plaintiffs' allegations simply do not
rise to the level of extreme and outrageous as a matter of
law. To the extent that Plaintiffs are attempting to assert a
claim for negligent infliction, the Court finds that they
have failed to sufficiently allege “severe emotional
distress” to survive dismissal. See Pierce v. Atl.
Grp., Inc., 724 S.E.2d 568, 577 ( N.C. Ct. App. 2012)
(“[S]evere emotional distress” has been defined
as “any emotional or mental disorder, such as, for
example, neurosis, psychosis, chronic depression, phobia, or
any other type of severe and disabling emotional or mental
condition which may be generally recognized and diagnosed by
professionals trained to do so.” (quoting Johnson
v. Ruark Obstetrics and Gynecology Assocs., P.A., 395
S.E.2d 85, 97 ( N.C. 1990)).
THEREFORE ORDERED that Defendants' Motion to Dismiss is
granted and Plaintiffs' Complaint is hereby dismissed
with prejudice for failure to ...