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Alford v. Mecklenburg County Clerk of Superior Court

United States District Court, W.D. North Carolina, Asheville Division

July 2, 2019

CAROLYN ALFORD, Plaintiff,
v.
MECKLENBURG COUNTY CLERK OF SUPERIOR COURT, ET AL., Defendants.

          ORDER

          MAX O. COGBURN JR. UNITED STATES DISTRICT JUDGE.

         THIS 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 & Buie, P.A.

         I. BACKGROUND

         Pro se 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.

         Plaintiff's 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 ¶ 9).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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.).

         Plaintiff 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).

         On 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 ¶ 49).

         Plaintiff 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.

         II. STANDARD OF REVIEW

         The 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.” Fed.R.Civ.P. 12(h)(3).

         Federal 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. 544, ...


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