United States District Court, W.D. North Carolina, Asheville Division
ROBERT V. WILKIE, Individually and as Executor of the Estate of Judith Kathryn Sellers Wilkie, Plaintiffs,
AMICA MUTUAL INSURANCE COMPANY, Defendant.
MEMORANDUM AND RECOMMENDATION
L. Howell, United States Magistrate Judge
matter is before the Court on Defendant's Motion to
Dismiss (# 10) pursuant to Federal Rule of Civil Procedure
12(b)(6). The issues have been fully briefed, and the matter
is now ripe for ruling. For the reasons addressed below, this
Court will recommend that Defendant's Motion to Dismiss
November 16, 2017, Plaintiffs, proceeding pro se,
filed a complaint, both individually and as Executor of the
Estate of Judith Kathryn Sellers Wilkie, and a demand for a
jury trial. See Compl. (# 1). Plaintiffs
allege that Defendant violated their rights. Id. at
5. In particular, Plaintiffs have purportedly stated the
following causes of action: (1) negligence; (2) “bad
and deceptive business practices”; (3)
“exploitation of a person for profit during a tragic
event”; (4) “lying to member to cover up bid
rigging practices”; (5) fraud; (6) “refusing to
legally recognize two legally filed subsequent claims”;
(7) breach of contract; and (8) “gross” breach of
contract. Id. Plaintiffs seek “triple reward
damages, ” an apology, and attorney's fees.
Id. at 6.
February 13, 2018, Defendant filed the instant Motion to
Dismiss (# 10) and Memorandum in Support. Plaintiffs filed a
Response in Opposition (# 12), and Defendant filed a Reply (#
facts, viewed in a light most favorable to Plaintiffs, are
the following: Plaintiffs' allegations relate to a fire
that occurred on January 31, 2015, and remediation efforts by
Dolbier Restoration, LLC, and Plaintiffs' dissatisfaction
with the remediation efforts. Compl. (# 1) at 2, 4. Defendant
evidently had issued a fire insurance policy providing fire
insurance coverage for the dwelling of either Plaintiffs or
some other person. See id. Plaintiffs acknowledge
that as a result of a dispute between the parties, they
engaged in a mediated settlement conference on August 3,
2016, in Morganton, North Carolina, which resulted in a
“Memorandum Of Mediated Settlement”
(“Settlement Memorandum”). Id. (# 1-1)
at 1. The Settlement Memorandum provides that
“Defendant shall pay Plaintiff the total sum of $10,
400 within 7 days from the date of this Agreement.”
Id. The Settlement Memorandum was signed by
Plaintiffs and their former attorney, Wayne O. Clontz.
Id. Defendant paid the $10, 400 to Plaintiffs.
Id. at 4.
central issue for resolving a Federal Rule of Civil Procedure
12(b)(6) motion is whether the complaint states a plausible
claim for relief. See Francis v. Giacomelli, 588
F.3d 186, 189 (4th Cir. 2009). In considering a
defendant's motion, the court accepts the allegations in
the complaint as true and construes them in the light most
favorable to plaintiff. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir.
2009); Giacomelli, 588 F.3d at 192. Although a court
accepts well-pled facts as true, it is not required to accept
“legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement.”
Consumeraffairs.com, 591 F.3d at 255; see
Giacomelli, 588 F.3d at 192.
claims need not contain “detailed factual allegations,
” but must contain sufficient factual allegations to
suggest the required elements of a cause of action. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see Consumeraffairs.com, 591 F.3d at 256. “[A]
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. Nor
will mere labels and legal conclusions suffice. Id.
Federal Rule of Civil Procedure 8 “demands more than an
unadorned, the defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
complaint is required to contain “enough facts to state
a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see
Consumeraffairs.com, 591 F.3d at 255. “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678; accord
Consumeraffairs.com, 591 F.3d at 255. The mere
possibility that a defendant acted unlawfully is not
sufficient for a claim to survive a motion to dismiss.
Consumeraffairs.com, 591 F.3d at 256;
Giacomelli, 588 F.3d at 193. Ultimately, the
well-pled factual allegations must move a plaintiff's
claim from possible to plausible. Twombly, 550 U.S.
at 570; Consumeraffairs.com, 591 F.3d at 256.
Plaintiffs' third, fourth, and sixth claims are not
viable causes of action under North Carolina
or federal law.
respect to Plaintiffs' third claim, “exploitation
of a person for profit during a tragic event, ” fourth
claim “lying to member to cover up bid rigging
practices, ” and sixth claim, “refusing to
legally recognize two legally filed subsequent claims,
” Compl. (# 1) at 5, Plaintiffs have failed to show
that these claims are recognized causes of action under North
Carolina or federal law. Therefore, dismissal of these claims
is warranted. See Gaston v. PBI Gordon Corp., No.
1:13CV891, 2014 WL 4114324, at *3 (M.D. N.C. Aug. 20, 2014)
(“Because Plaintiff relies on causes of action not
recognized in North Carolina, [the specific counts] are
subject to dismissal.); Godbey v. Stanley Furniture Co.,
Inc., No. CIV 299CV28, 1999 WL 33315652, at *2 (W.D.
N.C. Apr. 23, 1999) (“[T]his Court is not at liberty to
allow causes of action not recognized by the courts of the
forum state.”); Cortes v. McDonald's
Corp., 955 F.Supp. 539, 541 (E.D. N.C. June 3, 1996)
(“[T]he generally held view [is] that federal courts
applying a state's law should not provide a cause of
action which that state has not recognized.” (quotation
omitted)). Accordingly, Plaintiffs' third, fourth, and
sixth claims must be dismissed on the basis that they are
non-existent under either North Carolina or federal law.
Plaintiffs have failed to state a claim under ...