United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
matter is before the court on defendants' motion to
dismiss for lack of subject matter and personal jurisdiction
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2)
and failure to state a claim under Rule 12(b)(6). (DE 15).
The motion has been fully briefed, and the issues raised are
ripe for decision. For the reasons that follow, the court
grants defendants' motion.
OF THE CASE
initiated this action by complaint filed September 28, 2018,
in the General Court of Justice, Superior Court Division of
Wake County. Plaintiff brings a myriad of claims all arising
out of her termination from employment as a staff physician
at student health services at North Carolina State University
removed the action to this court on November 1, 2018, and
filed instant motion to dismiss on December 7, 2018.
Defendants argue that plaintiff's claims for wrongful
termination and blacklisting as against defendant NCSU and
individual defendants in their official capacities are barred
by the doctrine of sovereign immunity; plaintiff's claim
against individual defendants in their individual capacities
are barred by the doctrine of public officer's immunity;
and that all of plaintiff's claims fail to state a claim.
The court has stayed the parties scheduling activities
pending resolution of the instant motion.
OF THE FACTS
facts alleged in complaint as relevant to the resolution of
the instant motion are as follows. Plaintiff is a former
staff physician at student health services at NCSU. (Compl.
(DE 1-1) ¶ 15). She held this position from
approximately October 1, 2008 to approximately October 2,
2017. (Id. ¶¶ 15, 21). Throughout her
employment, plaintiff met or exceeded the reasonable work
expectations of defendants. (Id. ¶ 17).
August 2016, plaintiff wrote to defendant Leah Arnett
(“Arnett”), raising concerns about deficiencies
in one of the medical record software programs used at
student health services. (Id. ¶ 18). Plaintiff
alleges she told defendant Arnett, the former director of
student health services, and others, that errors in this
software program prevented NCSU from reporting student
immunization compliance in a timely manner as required by
North Carolina law. (Id. ¶¶ 5, 18-19). In
December 2016, plaintiff brought her concerns about the
software program to non-party Dr. Lisa Zapata
(“Zapata”). (Id. ¶ 19).
alleges defendant Arnett “and others in her supervisory
chain of command developed animosity toward Plaintiff”
because she reported her concerns. (Id. ¶ 20).
Plaintiff alleges her immediate supervisor, defendant Julie
Casani (“Casani”), former director of student
health services, separated her employment in October 2017.
(Id. ¶¶ 4, 13, 21). Plaintiff also alleges
that following her termination, defendant Jane Doe
“contacted UNC Health Care and provided false and
unfavorable reference which prevent Plaintiff Miller from
being hired by UNC.” (Id. ¶¶ 6, 82).
Standard of Review
motion to dismiss under Rule 12(b)(1) challenges the
court's subject matter jurisdiction. Such motion may
either 1) assert the complaint fails to state facts upon
which subject matter jurisdiction may be based, or 2) attack
the existence of subject matter jurisdiction in fact, apart
from the complaint. Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982). Where a defendant raises a
“facial challenge to standing that do[es] not dispute
the jurisdictional facts alleged in the complaint, ”
the court accepts “the facts of the complaint as true
as [the court] would in context of a Rule 12(b)(6)
challenge.” Kenny v. Wilson, 885 F.3d 280, 287
(4th Cir. 2018).
12(b)(2) allows for dismissal of a claim for lack of personal
jurisdiction. “When a district court considers a
question of personal jurisdiction based on the contents of a
complaint and supporting affidavits, the plaintiff has the
burden of making a prima facie showing in support of its
assertion of jurisdiction.” Universal Leather, LLC
v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014). At
this stage, the court “must construe all relevant
pleading allegations in the light most favorable to
plaintiff, assume credibility, and draw the most favorable
inferences for the existence of jurisdiction.”
Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989);
see Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60
(4th Cir. 1993)(“[T]he district court must draw all
reasonable inferences arising from the proof, and resolve all
factual disputes, in the plaintiff's favor.”).
survive a motion to dismiss” under Rule 12(b)(6),
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. In evaluating whether a claim is stated,
“[the] court accepts all well-pled facts as true and
construes these facts in the light most favorable to the
plaintiff, ” but does not consider “legal
conclusions, elements of a cause of action, . . . bare
assertions devoid of further factual enhancement[, ] . . .
unwarranted inferences, unreasonable conclusions, or
arguments.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009) (citations omitted).
first claim under North Carolina's Whistleblower Act, N.
C. Gen. Stat. § 126-85, and second claim for wrongful
termination in violation of North Carolina's public
policy, are directed against defendants NCSU, and Arnett, and
Casani. The first claim asserts liability in Arnett and
Casani's individual and official capacities, while the
second claim is predicated only on their official capacity.
Defendants Arnett and Casani, sued in their individual
capacities, are the subject of her third claim for relief,
tortious interference with contract. In plaintiff's
fourth claim for relief, she asserts a cause of action for
damages under North Carolina's constitution against
defendants NCSU and Casani, in both her individual and
official capacities, pursuant to Corum v. Univ. of
N.C. , 330 N.C. 761, 782 (1992). Her fifth claim,
pursuant to the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. 201 et seq., and sixth claim,
for blacklisting in contravention of North Carolina General
Statute § 14-355, are directed against defendants NCSU
and Arnett, in her individual and official capacities.
Plaintiff additionally asserts a blacklisting claim against
defendant Jane Doe, in her individual and official
court will first address the applicability of sovereign
immunity and public officer's immunity to certain of
plaintiff's claims. The court will then turn to each of
plaintiff's individual claims.
doctrine of sovereign immunity protects the state from suit
unless it has expressly consented. Guthrie v. N.C. State
Ports Author., 307 N.C. 522, 535 (1983). “It has
long been established that an action cannot be maintained
against the State of North Carolina or an agency
thereof unless it consents to be sued or upon its waiver