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Ammarell v. France

United States District Court, W.D. North Carolina, Charlotte Division

June 11, 2018

MEGAN FRANCE, Defendant.


          Robert J. Conrad, Jr. United States District Judge

         THIS MATTER comes before the Court on Megan France's Motion to Dismiss, (Doc. No. 11), and the Memorandum in Support, (Doc. No. 12); Summer Ammarell's Opposition to Defendant's Motion, (Doc. No. 14); the Magistrate Judge's Memorandum and Recommendation (“M&R”). (Doc. No. 15), recommending that the Court deny France's Motion to Dismiss; France's Objections to the M&R (Doc. No. 16); and Ammarell's Response to France's Objections to the Magistrate Judge's M&R (Doc. No. 20). A hearing was held on February 28, 2018, and the motions are ripe for the Court's consideration.

         Plaintiff claims, under state law, damages for impairment of marriage and related injury. Defendant resists, claiming that North Carolina's “heart balm” statutes are unconstitutional. As will be shown, although Defendant's motion to dismiss is cast in terms of a constitutional challenge, it is at bottom a policy critique - the statutes at issue are unwise, outdated and ineffectual. Those arguments rest on policy grounds and are fodder for state legislative change; they are not grounds for dismissal by an unelected federal judge. For the reasons set forth, this Court finds that the tort claims for alienation of affection and criminal conversation pass constitutional muster.

         I. BACKGROUND

         For the purpose of a motion to dismiss, the Court must accept the factual allegations of Summer Ammarell's (“Plaintiff's”) complaint as true and, in doing so, construe allegations in the light most favorable to her. Coleman v. Maryland Ct. of Appeals, 626 F.3d 187, 189 (4th Cir. 2010). With this standard in mind, the Court finds plaintiff has alleged sufficient facts to support her claims of alienation of affection and criminal conversion.

         On February 25, 2012, Plaintiff married Ryan Ammarell in Alabama. (Doc. No. 1-1 ¶¶1, 28). As she tells it, Plaintiff's marriage was one of genuine love and affection. (Id. ¶10). The couple had a child and Mr. Ammarell owned a business in Mecklenburg, North Carolina, where he frequently traveled to from his home in Alabama. (Id. at ¶¶1, 11, 28). It was in North Carolina in December 2015, however, that Mr. Ammarell met Megan France (“Defendant”) and began to forge a second life, resulting in an affair. (Id. ¶12). Mr. Ammarell and Defendant were intimate when together and exchanged explicit photographs and texts when apart. (Id. ¶14).

         The affair eventually came to light in May of 2016 when Defendant called Plaintiff and described the sexual relationship she had established with Mr. Ammarell. (Id.). She apparently sent Plaintiff the texts and photographs to prove it. (Id. at ¶14).

         Defendant had planned a future with Mr. Ammarell. She scheduled an appointment to remove her birth control device in the hopes of bearing Mr. Ammarell's child. (Id. ¶17). She purchased a residence and car for Mr. Ammarell to use when in North Carolina. (Id. ¶18). She offered a total of $1, 000, 000 to Mr. Ammarell to leave his wife; and contemplated offering another $100, 000 to Plaintiff if she was willing to walk away from her marriage. (Id.).

         Plaintiff's happy marriage began to crumble as a result. Mr. Ammarell suffered a mental breakdown of sorts, fueling episodes of domestic violence and triggering proceedings in which Plaintiff sought primary custody of their child in Alabama. (Id. ¶28). Plaintiff now seeks redress for the damage she alleges Defendant caused by asserting North Carolina common law causes of action for alienation of affection and criminal conversation. Defendant argues that these causes of action are unconstitutional as they target her liberty interests in engaging in private consensual sexual conduct and violate her First Amendment rights to free speech and freedom of association.


         This Court assigned Defendant's Motion to Dismiss to a Magistrate Judge for “proposed findings of fact and recommendations.” 28 U.S.C. § 636(b)(1)(A) and (B). The resulting M&R recommended denying the motion, and Defendant timely objected. The Federal Magistrate Act provides that “a district court shall make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made.” Id. at § 636(b)(1)(C); Fed. R. Civ. P.

         72(b)(3); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). A district judge is responsible for the final determination and outcome of the case, and accordingly this Court has conducted a comprehensive review of the M&R.

         To survive a motion to dismiss, the “complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To be “plausible on its face, ” a plaintiff must demonstrate more than “a sheer possibility that a defendant has acted unlawfully.” Id.


         Plaintiff's Complaint alleges the North Carolina common law causes of action of criminal conversation and alienation of affection. The State provides these causes of action to allow spouses injured by their partners' unfaithfulness to bring actions against third party interlopers. Under criminal conversation, Plaintiff must show “[an] actual marriage between the spouses and sexual intercourse between defendant and the plaintiff's spouse during the coverture." Nunn v. Allen, 574 S.E.2d 35, 43 ( N.C. Ct. App. 2002) (quoting Brown v. Hurley, 477 S.E.2d 234 ( N.C. Ct. App. 1996)).

         Under alienation of affection, Plaintiff must prove:

(1) that [she and her husband] were happily married, and that a genuine love and affection existed between them; (2) that the love and affection so existing was alienated and destroyed; [and] (3) that the wrongful and malicious acts of the defendant[] produced and brought about the loss and alienation of such love and affection.

McCutchen v. McCutchen, 624 S.E.2d 620, 623 ( N.C. 2006) (quoting Litchfield v. Cox, 266 N.C. 622, 623, 146 S.E.2d 641, 641 (1966)).

         In her Motion to Dismiss, Defendant argues that criminal conversation and alienation of affection are unconstitutional because: (1) these claims violate the Due Process Clause; and (2) the alienation of affection claim impermissibly infringes on Defendant's First Amendment rights. (Doc. No. 12 at 3, 13). The Magistrate Judge was not persuaded and recommended that Defendant's Motion to Dismiss be denied. (Doc. No. 15).

         Defendant's tenfold objections to the M&R include errors in: (1) “applying a pure rational basis scrutiny to the Defendant's 14th Amendment claim when [Lawrence v Texas, 539 U.S. 558 (2003), ] and subsequent authority have applied a higher standard of review often termed a ‘heightened rational basis scrutiny'”; (2) “improperly construing Lawrence to have exceptions in cases of injury to others and involving married couples where Lawrence applies to all instances of autonomous private consensual sexual conduct”; (3) “asserting without statutory or legislative support that the tort of alienation of affections and criminal conversation are intended to, and actually do, protect marriage”; (4) “asserting that ‘monogamy is inextricably woven into the fabric of our society' and using that as a justification for an inherently irrational morals legislation/common law tort”; (5) “asserting that Alienation of Affections doesn't implicate speech”; (6) “asserting that ‘marriage is the keystone of the Nation's social order, ' and that ‘marriage is the foundation of the family and of society, without which there would be neither civilization nor progress'”; (7) “characterizing the right to private consensual sexual conduct as ‘the right to engage in extra marital relations'”; (8) “asserting that there is a ‘fundamental right to exclusive sexual intercourse between spouses.'”; (9) “claiming that the torts of alienation of affection and criminal conversation have some type of deterrent effect on society where no such effect has ever been shown to exist”; and (10) “failing to consider the Defendant's First Amendment analysis regarding the overbroad nature of the alienation of affections tort and suggesting that this constitutional deficiency can be cured by allowing a jury to find that the Defendant's protected speech was ‘malicious.'” (Doc. No. 16 at 1-2).

         The Court agrees with the Magistrate Judge's recommendation. Alienation of affection and criminal conversation do not violate Defendant's substantive due process rights. Supreme Court precedent does not vitiate State legislative attempts to regulate the type of private conduct at issue here. Furthermore, the cause of action for alienation of affection does not violate Defendant's First Amendment rights because of the substantial government interests involved in this case justify any incidental effects on Defendant's ...

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