United States District Court, W.D. North Carolina, Asheville Division
ROBERT V. WILKIE, Plaintiff,
MARC MITCHELL and EDWARD GREGORY REFOUR, Defendants.
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge
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].
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
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
[Id. at 4 ¶ III]. The Plaintiff further states
that he is “[s]uing under the above reference[d] code
under NCGS 1-D for Fraud in the amount of $258, 000 or
the maximum allowed by law, individually and under NCGS
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].
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].
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,
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
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].
matter is now ripe for disposition.
STANDARD OF REVIEW
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. ...