United States District Court, W.D. North Carolina, Asheville Division
COGBURN JR. UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on a Motion to
Dismiss, (Doc. No. 9), by Defendants Mecklenburg County Clerk
of Superior Court, Martha Curran, and Patricia Koch
(hereinafter the “State Judicial Defendants”); on
a Motion to Dismiss for Failure to State a Claim, (Doc. No.
14), by Defendants Tamara R. Cornish, Cornish Law, PLLC,
Elizabeth B. Ells, Grady I. Ingle, and Shapiro & Ingle;
and on a Motion to Dismiss, (Doc. No. 17), by R. Michael
Allen and Cranford, Buckley, Schultze, Tomchin, Allen &
Plaintiff filed this action on March 29, 2019, bringing
claims arising from the administration of Plaintiff's
mother's estate in probate court and a foreclosure
proceeding associated with the same estate before the
Mecklenburg County Clerk of Superior Court. Plaintiff
purports to bring the following, eight claims against
Defendants: (1) a cause of action pursuant to 42 U.S.C.
§ 1983 for an alleged violation of her rights to due
process and equal protection under the Fourteenth Amendment;
(2) a claim for conspiracy to interfere with her civil rights
under 42 U.S.C. § 1985; (3) a claim for allegedly
violating their fiduciary duties owed to the plaintiff of
trust, loyalty, and honesty; (4) a claim alleging a conflict
of interest with another heir to Plaintiff's mother's
estate; (5) a claim for allegedly violating their oaths of
office; (6) a claim alleging fraud pursuant to 18 U.S.C.
§ 1341 and violations of other sections of Title 18 of
the United States Code; (7) a claim alleging a violation of
Chapter 163A of the North Carolina General Statutes, known as
the State Government Ethics Act; and (8) a claim alleging
racial discrimination. Plaintiff seeks damages and for the
Court to reinstate her as the personal representative of the
estate of her mother, Mildred Belk. Plaintiff has named the
following persons and entities as Defendants: (1) Mecklenburg
County Clerk of Superior Court; (2) Martha Curran, Clerk of
Mecklenburg County Superior Court at all relevant times; (3)
Patricia Koch, Assistant Clerk of Mecklenburg County Superior
Court at all relevant times; (4) the law firm of Cranford,
Buckley, Schultze, Tomchin, Allen & Buie, PA; (5)
attorney R. Michael Allen; (6) the law firm of Cornish Law,
PLLC; (7) attorney Tamara R. Cornish; (8) the law firm of
Shapiro & Ingle; (9) attorney Grady I. Ingle; and (10)
attorney Elizabeth B. Ells.
claims all arise from actions Defendants allegedly took
during the administration of the probate of Plaintiff's
mother's estate and an associated foreclosure proceeding.
According to the Complaint, Plaintiff's mother died
intestate in 2013 and Plaintiff and three other individuals
were the estate's heirs. (Doc. No. 1 at ¶¶
17-18). On April 24, 2013, Plaintiff was appointed as the
personal representative of her mother's estate.
(Id. at ¶¶ 18, 20). Defendant Martha
Curran was the elected Clerk of Superior Court for
Mecklenburg County at all relevant times. (Id. at
¶ 8). Plaintiff alleges that Defendant Curran met with
another heir, Lorenzo Belk, to “deprive in whole or in
part Plaintiff of property without due process of law,
” (id. at ¶ 19), and that she instructed
Defendant Koch to usurp Plaintiff's authority as the
estate's personal representative, (id. at ¶
20). Defendant Patricia Koch was an Assistant Clerk in the
Estates Division at the Office of the Clerk of Superior Court
in Mecklenburg County at all relevant times. (Id. at
asserts that Defendant Koch discovered a deed to real
property that Plaintiff owned on Cove Creek Drive was behind
on mortgage payments. (Id. at ¶ 22). Plaintiff
alleges that Defendant Koch instructed Lorenzo to stop paying
rent to Plaintiff on the Cove Creek property, thereby
compelling Plaintiff “to use estate money to
survive” the loss of income. (Id. at ¶
23). Plaintiff asserts that Defendant Koch then caused a
foreclosure proceeding to be commenced on the Cove Creek
property. (Id. at ¶ 24). The foreclosure
proceeding on this real property began on or around January
22, 2014. (Id. at ¶ 25). A hearing for the
foreclosure of the Cove Creek property was scheduled for
April 2, 2014, before the Clerk of Superior Court for
Mecklenburg County. (Id. at ¶ 27). The April 2,
2014, foreclosure hearing was rescheduled for May 6, 2014.
(Id. at ¶ 30). A foreclosure hearing was held
on May 6, 2014. (Id. at ¶ 37). The Cove Creek
property was sold pursuant to a foreclosure sale for $40,
000. (Id. at ¶ 40).
also asserts that on February 19, 2014, Defendant Mike Allen,
a private attorney representing Lorenzo, sent Plaintiff a
letter demanding that she resign as the administrator of her
mother's estate at the direction of Defendant Curran.
Defendant Allen also demanded in the letter that Plaintiff
return real properties to her mother's estate.
(Id. at ¶ 28). Defendant Koch allegedly placed
Defendant Allen's letter in the file for Plaintiff's
mother's estate. (Id. at ¶ 32). Plaintiff
alleges that she then transferred real properties to her
mother's estate without compensation under duress.
(Id. at ¶ 29).
asserts that Defendant Koch and Lorenzo coordinated to
prevent Plaintiff from closing her mother's estate.
(Id. at ¶¶ 33-35). Defendant Koch also
placed a note in the estate file instructing all clerks to
not extend the time to file a final accounting for the estate
and to order Plaintiff to immediately file an accounting if
the final accounting was not filed by its due date.
(Id. at ¶ 33; Doc. No. 1-1 at 2-3). The
Clerk's office denied the final accounting that Plaintiff
submitted for her mother's estate because of distribution
of assets to the estate. (Id. at ¶ 38). The
Clerk's office issued an “Order to File” the
final accounting by June 5, 2014. (Id.).
asserts that Defendant Koch issued to her an “Order To
Appear and To Show Cause” for July 10, 2014, where
Defendant Koch intended to remove Plaintiff as the
administrator of her mother's estate. (Id. at
¶ 42). A hearing on the order to show cause was held on
July 10, 2014, before Defendant Koch. (Id. at ¶
45). At the hearing on July 10, 2014, Defendant Koch
allegedly told Plaintiff that the order was sent in error,
that she was going to close the estate file, and that she was
not going to remove Plaintiff as the estate's
administrator. (Id. at ¶¶ 45-46).
March 18, 2016, the Mecklenburg Clerk of Superior Court
issued to Plaintiff an “Order To Appear and To Show
Cause” for June 28, 2016. (Id. at ¶ 47).
Plaintiff appeared on June 28, 2016. (Id. at ¶
48). On June 29, 2016, Plaintiff received from the
Mecklenburg Clerk of Superior Court an Order to Close Estate
where Plaintiff was disqualified and removed as the
administrator of her mother's estate. (Id. at
filed this action on March 29, 2019. On April 26, 2019,
Defendants Mecklenburg County Superior Court, Martha Curran,
and Patricia Koch filed a motion to dismiss. (Doc. No. 9). On
May 20, 2019, Defendants Tamara R. Cornish, Cornish Law,
PLLC, Elizabeth B. Ells, Grady I. Ingle, and Shapiro &
Ingle filed their own motion to dismiss. (Doc. No. 14). On
June 4, 2019, Defendants R. Michael Allen and Cranford,
Buckley, Schultze, Tomchin, Allen & Buie, P.A. filed
their own motion to dismiss. (Doc. No. 17). This Court has
entered orders in accordance with Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising
Plaintiff of the requirements for filing a response to the
motions to dismiss, (Doc. Nos. 11, 16, 20), and Plaintiff has
filed responses. (Doc. Nos. 13, 19, 21). Thus, this matter is
ripe for disposition.
STANDARD OF REVIEW
moving Defendants assert that this action should be dismissed
under Federal Rules of Civil Procedure Rule 12(b)(1) for lack
of subject matter jurisdiction, under 12(b)(2) for lack of
personal jurisdiction, and under 12(b)(6) for failure to
state a claim upon which relief can be granted. Federal
district courts are courts of limited jurisdiction.
United States ex rel. Vuyyuru v. Jadhav, 555 F.3d
337, 347 (4th Cir. 2009). “Thus, when a district court
lacks subject matter jurisdiction over an action, the action
must be dismissed.” Id. The lack of subject
matter jurisdiction is an issue that may be raised at any
time. See Ellenburg v. Spartan Motors Chassis, Inc.,
519 F.3d 192, 196 (4th Cir. 2008). “If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Rule of Civil Procedure 12(b)(6) provides that a motion may
be dismissed for failure to state a claim upon which relief
can be granted. A motion to dismiss pursuant to Rule 12(b)(6)
tests the sufficiency of the complaint without resolving
contests of fact or the merits of a claim. Republican
Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992), cert. denied, 510 U.S. 828 (1993). Thus, the
Rule 12(b)(6) inquiry is limited to determining if the
allegations constitute “a short and plain statement of
the claim showing the pleader is entitled to relief”
pursuant to Federal Rule of Civil Procedure 8(a)(2). To
survive a defendant's motion to dismiss, factual
allegations in the complaint must be sufficient to
“raise a right to relief above a speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.