United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on defendant's motion for
summary judgment as to all claims (DE 66), and
plaintiff's motion for summary judgment in part as to his
criminal conversation claim (DE 70). These motions have been
briefed fully. In this posture, the issues raised are ripe
for ruling. For the following reasons, the motions are
OF THE CASE
commenced this action in Wilson County Superior Court
asserting claims of alienation of affection and criminal
conversation against defendant, arising out of the conclusion
of plaintiff's marriage with plaintiff's former wife,
Patricia Mead Allegood (“Ms. Allegood”).
Plaintiff seeks compensatory and punitive damages. Defendant
removed the suit to this court on June 9, 2017, on the basis
of diversity jurisdiction. After a period of discovery, and
extensions of time thereof, the parties filed the instant
motions for summary judgment on September 17, 2018.
seeks summary judgment on the basis that the North Carolina
laws of alienation of affection and criminal conversation are
unconstitutional as applied to him. In support of his motion,
defendant relies upon a memorandum, statement of facts, and
appendix containing: 1) declarations of Ms. Allegood and
Eliza Barnes and Olivia Barnes, who are Ms. Allegood's
children from a prior marriage and plaintiff's
step-children; 2) declarations of a colleague and friend of
Ms. Allegood, as well as boyfriend of Olivia Barnes; 3)
excerpts of depositions of plaintiff, defendant, and Ms.
Allegood; 4) excerpts of plaintiff's and defendant's
discovery responses; 5) excerpts of text messages; 6)
financial and gambling records; 7) email correspondence; and
8) expert report of Dr. Jean G. Spaulding.
same date, plaintiff filed the instant summary judgment
motion asserting that there is no genuine issue of fact as to
liability on his criminal conversation claim. In support
thereof, plaintiff relies upon a memorandum, statement of
facts, and appendix containing: 1) excerpts of depositions of
plaintiff, defendant, and Ms. Allegood, as well as notices
regarding the same; 2) excerpts of defendant's discovery
responses; and 3) excerpts of text messages.
October 9, 2018, plaintiff responded in opposition to
defendant's motion, relying upon an opposing statement of
material facts and appendix thereto containing: 1) additional
excerpts of depositions of plaintiff, defendant, and Ms.
Allegood; 2) declarations by plaintiff, as well as
plaintiff's friend, brother, sister, and sister-in-law;
3) excerpts of text messages and family correspondence and
photos; 4) excerpts of discovery requests and responses in
this case and in divorce proceeding between plaintiff and Ms.
Allegood in Wilson County District Court, No. 17 CVD 723.
That same date, defendant responded in opposition to
plaintiff's motion, relying upon a supplemental appendix
to his statement of material facts containing a supplemental
declaration of Ms. Allegood.
October 23, 2018, the parties filed replies in support of
their respective motions. In support of his reply, plaintiff
relies upon a supplemental appendix containing additional
excerpts of text messages between plaintiff, Ms. Allegood,
and Eliza Barnes.
undisputed facts and other facts viewed in the light most
favorable to plaintiff may be summarized as
Plaintiff's Marriage with Ms. Allegood
and Ms. Allegood were married on December 3, 2004; it was her
second marriage. (Def's Stmt. (DE 68) ¶ 1). Ms.
Allegood was living in Raleigh at the time with her two
daughters, Olivia Barnes and Eliza Barnes. (Id.).
She and her daughters moved into plaintiff's home in
Wilson about a year later. (Id.). Olivia Barnes
completed college and moved to Charlotte in 2011.
(Id.). Eliza Barnes completed college and moved to
Charlotte in 2014, and then to St. Simons, Georgia in 2016.
the first seven years of their marriage, Ms. Allegood did not
work outside the home. (Pl's Stmt. (DE 78) ¶ 96).
Plaintiff worked for a business, Acirris, and supported the
family financially during that time. (Id.; Ms.
Allegood Dep. (DE 80-7) p. 43-44, 66). Plaintiff formed
a company, Strategic Affinity Group, Inc., in June 2013, but
that company did not earn any reportable income. (Def's
Stmt. (DE 68) ¶ 5; Pl's Stmt. (DE 78) ¶ 96).
During the last seven years of the marriage, plaintiff did
not have any gainful employment, with one exception when
plaintiff worked as a mortgage lender for Wells Fargo from
June 2014 to August 2014. (Id.).
Allegood began working as a pharmaceutical and medical sales
representative in January 2012. (Def's Stmt. (DE 68)
¶ 2). In November 2015, she joined Mylan as a hospital
field sales representative, where she worked until
approximately March 2017. (Id.). According to
plaintiff: “[Ms. Allegood] was supporting me and - -
and my work in trying to generate something with my new
company since I had done so much for her and the girls over
the years. She had - - she said she had faith in me, she
believed in me, to take the time I needed.” (Pl's
Dep. p. 43 (DE 80-8)).
their marriage, Ms. Allegood accompanied plaintiff on
numerous trips to casinos, and her “family including
her daughters, mother, four sisters, brothers-in-law,
sister's children, and daughters' boyfriends have
enjoyed accommodations, food, alcoholic beverages, spa
treatments, air fare, transportation, jewelry, and shows
valued at tens of thousands of dollars . . . on numerous
trips and visits to casinos in Michigan, New Jersey, Nevada,
Mississippi, and the Bahamas.” (Pl's Decl. (DE
80-5) ¶ 5).
2016, plaintiff and Ms. Allegood went on a number of trips
together and with their family members. (Pl's Decl. (DE
80-5) ¶¶ 7-8). These included a family trip to Bald
Head Island, trips to casinos in Atlantic City, and trips to
visit Olivia Barnes and Eliza Barnes. (Id.). They
celebrated their twelfth wedding anniversary together at the
Borgata Casino, in Atlantic City. (Id. ¶ 8). In
2016, they exchanged hundreds of phone calls and numerous
text messages. (Id. ¶ 10). They were in family
pictures together and appeared in a 2017 New Year's card.
(Id. ¶ 9).
Allegood attended a business convention in Anaheim,
California, between January 29, 2017, and February 2, 2017.
(Pl's Stmt. (DE 78) ¶ 71). Originally, Ms. Allegood
planned on having plaintiff come with her for the trip, but
he could not attend due to a rescheduled surgery.
(Id. ¶ 75). During the trip to Anaheim, Ms.
Allegood communicated with plaintiff and messaged him that
she loved him. (Id. ¶ 72). Plaintiff picked Ms.
Allegood up from the airport, and Ms. Allegood stayed at the
home in Wilson until February 8, 2017, when she spent the
night away. (Pl's Stmt. (DE 73) ¶ 16). She returned
home February 9, 2017, and then visited her daughter in
Charlotte from February 10, 2017, to February 13, 2017.
(Id. ¶ 17). She returned home on February 13,
2017, and stayed until February 16, 2017. (Id.
February 16, 2017, Ms. Allegood traveled to Wilmington, North
Carolina, and she told plaintiff that she needed to be there
for work purposes and through the night of February 18, 2017,
because she was sick. (Pl's Stmt. (DE 73) ¶ 28).
“Plaintiff was supposed to accompany [Ms. Allegood] and
her daughters, his stepdaughters, on a planned vacation to
Bald Head Island, North Carolina that Plaintiff had
arranged” for the upcoming weekend. (Id.
¶ 31). “However, Plaintiff agreed not to go when
[Ms. Allegood] and his stepdaughters indicated they wanted a
‘girls weekend' to help support one of them
regarding a relationship trouble.” (Id.).
Plaintiff instead went on a trip on his own to Borgata
Casino, and Ms. Allegood texted him: “go win us a
car.” (Pl's Stmt. (DE 78) ¶ 7).
returning from the Bald Head Island trip, Ms. Allegood spent
the night in the home in Wilson with plaintiff, overnight on
February 21, 2017. (Pl's Stmt. (DE 73) ¶ 33). Ms.
Allegood left for work-related travel in Virginia on February
22, 2017. (Id. ¶ 35). Plaintiff understood that
Ms. Allegood would be returning home the following day, on
February 23, 2017. (Id.). However, on February 23,
2017, during the day, Ms. Allegood called plaintiff to say
she had to go to Richmond, Virgina, to stay overnight.
(Pl's Stmt. (DE 78) ¶ 59). In the evening of
February 23, 2017, Ms. Allegood called plaintiff and told
plaintiff “that she wanted to separate and needed some
space for a little while.” (Id.).
“Plaintiff was completely blindsided and
devestated.” (Id.). Ms. Allegood returned to
Wilson on February 24, 2017, to pack up belongings and take
the dog on a walk with plaintiff. (Id. ¶ 62).
She texted plaintiff that evening: “I left love
you.” (Id.) (syntax as in original). On March
3, 2017, Ms. Allegood texted plaintiff stating that she still
needed space and that it had “barely been a week”
since their separation. (Id. ¶ 63). Ms.
Allegood “has now divorced Plaintiff.”
(Id. ¶ 105).
Allegood's Relationship with Defendant
the time period of the preceding events, Ms. Allegood was
developing a relationship with defendant, as follows. At the
time Ms. Allegood was working for Mylan, defendant was the
president of the “specialty division” in which
Ms. Allegood was working as a sales representative.
(Def's Stmt. (DE 68) ¶ 29). Defendant and Ms.
Allegood first met in February 2016 during her training at
Mylan's corporate office in Pennsylvania, where defendant
sat next to Ms. Allegood at her “graduation
dinner.” (Id. ¶ 30). They also saw each
other and spoke together at a work function in Orlando,
Florida, in November 2016. (Pl's Stmt. (DE 78) ¶ 78;
Ms. Allegood Dep. (DE 80-7) at 106-107).
the Mylan convention from January 29, 2017, through February
2, 2017, in Anaheim, Ms. Allegood “spent private but
non-sexual time alone with Defendant in his hotel room on one
night, and the following night they spent private but
non-sexual alone time together in [Ms. Allegood's] hotel
room.” (Pl's Stmt. (DE 78) ¶ 71). While
plaintiff was in Wilmington, North Carolina, area from
February 16, 2017, to February 18, 2017, she spent part of
that time with defendant. (Id. ¶ 67). Defendant
traveled to North Carolina, from Pennsylvania, for the
purpose of visiting with Ms. Allegood, arriving on February
17, 2017. (Pl's Stmt. (DE 73) ¶ 23). They spent the
night of February 17, 2017, together in a hotel.
(Id. ¶ 24). They had sexual intercourse twice
while together at a different hotel in the evening of
February 18, 2017. (Id. ¶ 26). They parted on
February 19, 2017, and defendant returned to Pennsylvania on
February 20, 2017. (Def's Dep. (DE 80-6) pp. 231-232).
Allegood and defendant next stayed together at a hotel resort
in Virginia on February 24, 2017. (Id. ¶ 38).
Thereafter, they began living together, and defendant has
continued a sexual and romantic relationship with Ms.
Allegood to present. (Id. ¶ 45).
facts pertinent to the instant motions will be addressed ...