United States District Court, E.D. North Carolina, Western Division
AMARP. SINGH, Plaintiff,
GEICO INSURANCE AGENCY, INC. and INSURANCE AUTO AUCTIONS, CORP., Defendants.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on defendants' motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure and plaintiffs motions for entry of default
and for summary judgment pursuant to Rules 55 and 56 of the
Federal Rules of Civil Procedure. The appropriate responses
and replies have been filed and the matters are ripe for
ruling. For the reasons that follow, the complaint in this
action is dismissed in its entirety.
an attorney and member of the bar of the State of Georgia,
filed this actionpro se alleging a claim that
defendants violated Chapter 75 of the North Carolina General
Statutes by engaging in unfair and deceptive trade practices.
Plaintiff seeks an award of actual damages in the amount of
$47, 430.86 plus additional damages, an award of treble
damages, and an award of attorney's fees. Plaintiff
alleges that in June 2014, defendants advertised for sale a
2014 BMW 750LI luxury sedan to be sold at auction in Raleigh,
North Carolina. The car was advertised as having left-side
front-end damage with an estimated repair cost of $4, 303 and
was purported to be in "run and drive" condition.
On June 11, 2014, plaintiff made the winning bid for the car
and paid a total of $50, 662 on June 12, 2014. Plaintiff has
since spent $47, 430.86 on parts and repair services for the
car to date, with significant additional work remaining
before the car is roadworthy.
outset, the Court denies plaintiffs motion for entry of
clerk's default pursuant to Rule 55(a) of the Federal
Rules of Civil Procedure. The docket reflects that defendants
were served on June 12 and June 13, 2017. On June 28, 2017,
defendants filed a motion for extension of time to file an
answer with the consent of plaintiff, which was granted. [DE
6]. Further extensions were obtained from the Clerk of Court,
and defendants filed the instant motion to dismiss on
September 22, 2017, prior to the time for doing so expiring.
[DE 13]. Plaintiff s request for entry of default based upon
defendants' failure to file an answer is without
merit. Rule 55(a) authorizes entry of default where a
defendant has failed to plead or otherwise defend. Fed R.
Civ. P. 55(a). "The filing of a Motion to Dismiss
constitutes defending an action within the meaning of Rule
55(a)." Hudson v. State of N.C, 158 F.R.D. 78,
80 (E.D. N.C. 1994). Plaintiffs motion for entry of default
is therefore properly denied.
12(b)(6) motion tests the legal sufficiency of the complaint.
Papasan v. Allain, 478 U.S. 265, 283 (1986). When
acting on a motion to dismiss under Rule 12(b)(6), "the
court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir.1993). A complaint must allege
enough facts to state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Facial plausibility means that the facts
pleaded "allow the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged, " and mere recitals of the elements of a cause
of action supported by conclusory statements do not suffice.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
complaint must be dismissed if the factual allegations do not
nudge the plaintiffs claims "across the line from
conceivable to plausible." Twombly, 550 U.S. at
prevail on a claim of unfair and deceptive trade practices, a
plaintiff must show: (1) defendants committed an unfair or
deceptive act or practice; (2) in or affecting commerce; and
(3) that plaintiff was injured thereby." First Ail.
Mgmt. Corp. v. Dunlea Realty Co., 131 N.C.App. 242, 252
(1998). A trade practice is unfair if it is immoral,
unethical, oppressive, or substantially injurious.
Id. (citation omitted). A trade practice is
deceptive when it has "the tendency or capacity to
mislead, or create the likelihood of deception."
Gilbane Bldg. Co. v. Fed. Reserve Bank of Richmond,
Charlotte Branch, 80 F.3d 895, 903 (4th Cir. 1996)
(alteration and citation omitted).
purchase of the BMW sedan with a salvage title is governed by
the terms of defendant Insurance Auto Auction's (IAA)
auction rules/buyer agreement, which has been attached as an
exhibit by defendants to their motion to dismiss. [DE 14-1].
A court may consider materials outside the pleadings without
converting a Rule 12 motion to one for summary judgment
"where, as here, a plaintiff does not attach to the
complaint or incorporate by reference written materials which
are integral to the allegations of the complaint."
In re FAC Realty Sec. Litig., 990 F.Supp. 416, 420
(E.D. N.C. 1997). The auction rules and buyer agreement,
which appears to have been signed by plaintiff and the
authenticity of which plaintiff not contested, provides,
inter alia, that all vehicles sold through IAA
auctions are sold "as is where is" with no
warranty, express or implied and that no warranty is made
with respect to the accuracy of any information provided to
buyers regarding vehicles, including information regarding
condition, actual cash value, estimate repair cost, damage
type, or whether or not the car starts. [DE 14-1 at 7 of 10].
has plainly attempted to circumvent the plain language in the
auction rules and buyer agreement by alleging that defendants
engaged in unfair and deceptive trade practices. However,
"North Carolina courts are extremely hesitant to allow
plaintiffs to attempt to manufacture a tort action and allege
[unfair and deceptive trade practices] out of facts that are
properly alleged as a breach of contract claim."
Jones v. Harrelson and Smith Contractors, LLC, 194
N.C.App. 203, 229 ( N.C. App. 2008). Indeed, even an intentional
breach of contract is not sufficiently unfair or deceptive to
show a violation of North Carolina's Unfair and Deceptive
Trade Practices Act (UDTPA). Branch Banking & Tr. Co.
v. Thompson, 107 N.C.App. 53, 62 (1992). Plaintiffs
allegations amount in essence to a claim for breach of
warranty, as he has alleged that the estimated repair cost
was far less than the actual repair cost. Even if plaintiff
could proceed on a claim for breach of warranty, a breach of
warranty is not a violation of the UDTPA. See Kelly v.
Georgia-Pac. LLC, 671 F.Supp.2d 785, 799 (E.D. N.C.
2009) ("breach of warranty alone is insufficient to
state a UDTPA claim."); Walker v. Fleetwood Homes of
N. Carolina, Inc., 362 N.C. 63, 72 (2007).
only where a breach of contract is "surrounded by
substantial aggravating circumstances" will it support
an unfair and deceptive trade practice claim. Griffith v.
Glen Wood Co., Inc., 184 N.C.App. 206, 217 ( N.C. App.
2007). Plaintiffs allegations do not support the presence of
substantial aggravating circumstances. Plaintiff has alleged
that defendants' estimate of the cost of repairs was
inaccurate and that the car was improperly labeled as
"run & drive"; there is nothing substantially
aggravating about an incorrect repair estimate or an
inaccurate statement regarding a salvage vehicle's
ability to start. See, e.g., Mitchell v. Linville,
148 N.C.App. 71, 76 (2001) (structural defects in home,
though supportive of claim for breach of implied warranty of
habitability, not indicative of substantial aggravating
factors to support UDTPA claim); see also Mozingo v.
Orkin, Inc., No. 4:10-CV-71, 2011 WL 845896, at *6 (E.D.
N.C. Mar. 8, 2011) (where dispute, distilled down, is over
whether a party breached its obligations and warranties under
a contract, addition of the term
"misrepresentation" to claim will not support the
presence of substantial aggravating circumstances).
plaintiffs complaint is properly dismissed for failure to
state a claim. In light of the denial of the motion for entry
of default and the appropriateness of dismissal, plaintiffs
motion for summary judgment is denied.
for the reasons discussed above, plaintiffs motion for entry
of default [DE 19] is DENIED, defendants' motion to
dismiss [DE 14] is GRANTED, and plaintiffs motion for summary
judgment [DE 23] is ...