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Wilkie v. Mitchell

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

October 7, 2019

ROBERT V. WILKIE, Plaintiff,
v.
MARC MITCHELL and EDWARD GREGORY REFOUR, Defendants.

          MEMORANDUM OF DECISION AND ORDER

          Martin Reidinger United States District Judge

         THIS MATTER is before the Court on the Defendants' Motion to Dismiss [Doc. 11] and the Plaintiff's Requests for Judicial Notice [Docs. 16, 17, 21].

         I. BACKGROUND

         The Plaintiff Robert V. Wilkie, proceeding pro se, commenced this action on February 19, 2019, against the Defendants Marc Mitchell (“Mitchell”) and Edward Gregory Refour (“Refour”) (collectively, “the Defendants”). [Doc. 1]. In his Complaint, the Plaintiff asserts that:

Marc Mitchell and Edward Refour committed Fraud … and [were] Negligent when they made a Partition [sic] before the Burke County Clerk of Court on the 16th day of January 2019 for a 10 day Writ in order to navigate around the summary ejectment process pursuant to N.C. G.S. 45 and TITLE VII Protecting Tennant's [sic] Foreclosure Act Sec 702(A)(2)(B)(b)(1) [sic] without presenting the Clerk of Court an Order for Summary Ejectment from the Authorizing Authority.
The defendants owed a [duty of] care ... and breached there [sic] care of duty ... with foreseeable homelessness, severe mental anguish and loss of personal property as the proximate damage.

[Id. at 4 ¶ III]. The Plaintiff further states that he is “[s]uing under the above reference[d] code under NCGS 1-D[1] for Fraud in the amount of $258, 000 or the maximum allowed by law, individually and under NCGS 75-1[2] for defendant Refour only if applicable.” [Id. at ¶ II.B.3.]. The Plaintiff asserts the existence of a federal question as the basis for subject matter jurisdiction in this case. [Id. at 3 ¶ II].

         On March 15, 2019, the Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. [Doc. 9]. The Defendants withdrew their Motion on March 19, 2019, citing the Plaintiff's pending bankruptcy case. [Doc. 10 at 1-2].

         After the dismissal of the Plaintiff's bankruptcy case on April 2, 2019 [see Doc. 14 at 1-2 (discussing procedural history)], the Defendants refiled their Motion to Dismiss. [Doc. 11]. The Plaintiff filed a “Notice of Motion and Motion to Take Notice/Notice of Motion and Motion to Enter evidence into the Record Though [sic] the Judicial Doctrine” on May 13, 2019. [Docs. 12, 13].[3]

         On June 4, 2019, the Honorable W. Carleton Metcalf, United States Magistrate Judge, entered an Order addressing the parties' filings. [Doc. 14]. Specifically, Judge Metcalf directed the Defendants to submit a brief in support of their Motion to Dismiss within ten (10) days. [Id. at 3]. Judge Metcalf instructed the Plaintiff to file a response to the Defendants' Motion to Dismiss within fourteen (14) days of the filing of that brief. [Id.]. With respect to the Plaintiff's “Notice of Motion/Motion to Take Notice, ” Judge Metcalf noted that to the extent that this pleading was intended to be a motion, it failed to comply with the Local Rules. [Id. at 2]. Accordingly, the “Notice of Motion/Motion to Take Notice” was denied without prejudice. [Id. at 3].

         The Defendants filed a brief in support of their Motion to Dismiss on June 5, 2019. [Doc. 15]. On June 19, 2019, the Plaintiff filed a “Request for Judicial Notice in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss.” [Doc. 16]. Two days later, the Plaintiff filed a “Second Request for Judicial Notice in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss.” [Doc. 17]. On July 18, 2019, the Plaintiff filed another pleading styled “Second Request for Judicial Notice in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss.” [Doc. 21].

         This matter is now ripe for disposition.

         II. STANDARD OF REVIEW

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) addresses whether the Court has subject matter jurisdiction to hear the dispute. See Fed.R.Civ.P. 12(b)(1). Where a defendant contends that a complaint fails to allege facts upon which subject matter jurisdiction can be based, the Court must assume as true the factual allegations in the Complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). If, on the other hand, a defendant contends that the jurisdictional allegations contained in the complaint are false, the court may go beyond the allegations of the complaint and conduct an evidentiary hearing to determine if there are facts to support the court's exercise of jurisdiction over the dispute. Id. ...


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