United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
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
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at issue are unwise, outdated and ineffectual.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.
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
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).
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).
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.
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.
STANDARD OF REVIEW
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.
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.
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.”
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)).
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)).
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.
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).
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