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Allegood v. Graham

United States District Court, E.D. North Carolina, Western Division

May 20, 2019

ROGER D. GRAHAM, JR., Defendant.



         This 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 denied.


         Plaintiff 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.

         Defendant 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.

         That 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.

         On 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.

         On 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.


         The undisputed facts and other facts viewed in the light most favorable to plaintiff may be summarized as follows.[1]

         A. Plaintiff's Marriage with Ms. Allegood

         Plaintiff 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. (Id.).

         During 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).[2] 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.).

         Ms. 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)).

         During 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).

         During 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).

         Ms. 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. ¶¶ 18-20).

         On 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).

         Upon 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).

         B. Ms. Allegood's Relationship with Defendant

         During 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).

         During 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).

         Ms. 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).

         Additional facts pertinent to the instant motions will be addressed ...

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