United States District Court, W.D. North Carolina, Charlotte Division
SCOTT CARLTON, THOMAS CARLTON, and CYNTHIA CARLTON, Plaintiffs,
CAPITAL BANK CORPORATION f/k/a CommunityOne Bank, N.A., Defendant, FIRST TENNESSEE BANK NATIONAL ASSOCIATION, Movant.
ORDER AND MEMORANDUM AND RECOMMENDATION
C. Keesler, United States Magistrate Judge
MATTER IS BEFORE THE COURT on First Tennessee Bank
National Association's “Motion To Dismiss”
(Document No. 7). This motion has been referred to the
undersigned Magistrate Judge pursuant to 28 U.S.C.
§636(b) and is now ripe for disposition. Having
carefully considered the arguments, the record, and the
applicable authority, the undersigned will direct Plaintiffs
to file an “Amended Complaint” and recommend that
the motion to dismiss be denied as moot.
Scott Carlton, Thomas Carlton and Cynthia Carlton (together
“Plaintiffs” or the “Carltons”)
initiated this action in Iredell County Superior Court with
the filing of a “Complaint” (Document No. 1-3, p.
3) in No. 18-CVS-972, on April 20, 2018. The Complaint
asserts a total of nineteen (19) claims against Capital Bank
Corporation, including claims for: negligent
misrepresentation; breach of fiduciary duty; constructive
fraud; fraud in the inducement/affirmative misrepresentation;
punitive damages; unfair and deceptive trade practices;
unjust enrichment/constructive trust; and breach of contract
and separately breach of the covenant of good faith and fair
dealing. (Document No. 1-3).
Tennessee Bank National Association (“First
Tennessee”), successor by merger to Capital Bank
Corporation (“Capital Bank”), successor by merger
to CommunityOne Bank, N.A. (“CommunityOne”), then
filed a “Notice Of Removal” (Document No. 1) with
this Court on May 21, 2018. First Tennessee notes that
several months prior to the filing of the Complaint, Capital
Bank merged into First Tennessee, effective November 30,
2017. (Document No. 1, p. 2; Document No. 1-2). First
Tennessee contends that it is the correct Defendant as to
Plaintiffs' claims as the successor by merger to Capital
Bank. Id. First Tennessee observes that it is a
citizen of Tennessee, and Plaintiffs are citizens and
residents of Burke County, North Carolina, and therefore,
there is complete diversity between the parties. (Document
No. 1, p. 3).
pending before the Court is First Tennessee's
“Motion To Dismiss” (Document No. 7) and
“Memorandum Of Law In Support Of Motion To
Dismiss” (Document No. 8) filed on August 7, 2018.
First Tennessee seeks dismissal pursuant to Fed.R.Civ.P.
12(b)(6). (Document Nos. 7 and 8). On August 21, 2018, the
undersigned allowed “Plaintiff's Consent Motion For
Extension Of Time To Respond To Defendant's Motion To
Dismiss” (Document No. 10), and also sua
sponte allowed Plaintiff the alternative of filing an
filed their “Memorandum Of Law In Opposition To Motion
To Dismiss” (Document No. 13) on September 20, 2018.
First Tennessee then filed its “Reply In Support Of
Defendant's Motion To Dismiss” (Document No. 14) on
September 27, 2018.
pending motion has been fully briefed and is ripe for review
and a recommendation to the Honorable Robert J. Conrad, Jr.
See (Document Nos. 7, 8, 13, and 14).
STANDARD OF REVIEW
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
“legal sufficiency of the complaint” but
“does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992); Eastern Shore Markets, Inc. v. J.D.
Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir.
2000). A complaint attacked by a Rule 12(b)(6) motion to
dismiss will survive if it contains “enough facts to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also, Robinson v. American Honda
Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009).
“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.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
Supreme Court has also opined that
Federal Rule of Civil Procedure 8(a)(2) requires only
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Specific facts are
not necessary; the statement need only “‘give the
defendant fair notice of what the ... claim is and the
grounds upon which it rests.'” In addition, when
ruling on a defendant's motion to dismiss, a judge must
accept as true all of the factual allegations contained in
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(quoting Twombly, 550 U.S. at 555-56).
for the purposes of this motion to dismiss we must take all
the factual allegations in the complaint as true, we are not
bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan v. Allain, 478
U.S. 265, 286 (1986). The court “should view the
complaint in the light most ...