Carlton v. Capital Bank Corp.

          ORDER AND MEMORANDUM AND RECOMMENDATION

          David C. Keesler, United States Magistrate Judge

         THIS 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.

         I. BACKGROUND

         Plaintiffs 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).

         First 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).

         Now 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 Amended Complaint.

         Plaintiffs 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.

         The 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).

         II. STANDARD OF REVIEW

         A 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 suffice.” Id.

         The 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 the complaint.

Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Twombly, 550 U.S. at 555-56).

         “Although 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 ...