Opinion
1:00CV01143
February 22, 2002
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the motion of Defendants Hobbs Realty and James Hobbs and Jimmy Hobbs, Jr., as owners and agents of Hobbs Realty, for summary judgment or partial summary judgment (Pleading no. 29) dismissing the claims of Plaintiffs Harvey L. Bynum, Frances P. Solari and Loren N. Bynum. Plaintiffs have opposed the motion, and also have filed a motion to refuse summary judgment. (Pleading no. 35).
On October 30, 2000, Plaintiffs sued Defendants in Durham County Superior Court, North Carolina, asserting four causes of action: race discrimination in the making and enforcement of contracts in violation of 42 U.S.C. § 1981; race discrimination in the rental of real property in violation of 42 U.S.C. § 1982; conspiracy to interfere with Plaintiffs' rights of equal protection of the laws in violation of 42 U.S.C. § 1985 (3) and N.C. Gen. Stat. § 99D-1; and unfair and deceptive trade practices in violation of N.C. Gen. Stat. § 75-1.1. Defendants removed the action to this court.
The facts are taken from the Complaint, the Answer and the affidavits, depositions and discovery responses submitted with the pending motions, and are undisputed except where noted.
Plaintiffs Harvey Bynum and Frances Solari are married and have five daughters, all from previous marriages. Mr. Bynum is African-American and Ms. Solari is Caucasian. Loren Bynum who is bi-racial, is Ms. Solari's stepdaughter. Several incidents alleged to have occurred in 1998 and 1999 form the basis for Plaintiffs' claims.
Hobbs Realty is real estate agency located in Holden Beach, Brunswick County, North Carolina and has been in business for more than twenty years. in September 1998, Hobbs Realty was a general partnership in which James Hobbs, Sr. ("James Hobbs") and James Hobbs, Jr. ("Jimmy Hobbs") were partners. Hobbs Realty incorporated on June 23, 1999, with James Hobbs and Jimmy Hobbs as its sole shareholders. Both James Hobbs and Jimmy Hobbs are Caucasian.
On September 24, 1998, Ms. Solari telephoned Hobbs Realty to rent a three-bedroom, oceanfront house on Holden Beach for the weekend of September 25. According to Ms. Solari, she advised the agent that it would be her daughter Loren's last trip to the beach before leaving the State for boot camp. Ms. Solari further advised the agent that her family would arrive at the beach on the evening of September 25, and the agent assured her that the key to the house would be in the night box at the front of the realty office. Ms. Solari prepaid the rental with Mr. Bynum's Visa card.
On the evening of September 25, 1998, Mr. Bynum and Ms. Solari were delayed in Durham, North Carolina but sent Loren Bynum and her friends ahead to the beach. Loren Bynum was accompanied by one black friend, Specialist Travis Eskridge, and two white friends, Meghan Barrett and Specialist Sam Lee. It is undisputed that none of the group was under the age of 20. When the group arrived at the realty office around 11 p.m., the keys were not in the lockbox as promised, so Loren Bynum followed the instructions posted on a bulletin board and called a telephone number to obtain the keys to the property. Within five minutes of the phone call, James Hobbs arrived. When he saw the group, he refused to give them the keys on grounds that he did not rent "to teenagers so they could shack up." The young people offered to show James Hobbs their identification cards as proof that they were not teenagers, but he refused to look at the cards. Loren Bynum also got her step-mother, Ms. Solari, on the phone to speak to Hobbs, but he refused to talk with Ms. Solari. According to Plaintiffs, Hobbs told the group that they could find a hotel in the nearby town of Shallotte and left them in the parking lot of the rental office. As Hobbs turned to leave, some of the group overheard him comment that he did not rent to "niggers." (Pleading no. 37, Ex. C, Meghan Barrett Aff. ¶ 26; Pleading no. 33, Loren Bynum Dep. at 42.) James Hobbs denies making this comment.
Sometime after 12 a.m., Harvey Bynum spoke to James Hobbs by telephone. Bynum claims that he explained the circumstances of the group's arrival at the beach without him and Ms. Solari, and pleaded with Hobbs to let the group take possession of the property. Hobbs refused on grounds that the company had a policy of renting only to families, but assured Mr. Bynum that the property would be available to Mr. Bynum and Ms. Solari when they arrived the next day. As a result of this dispute, none of the Plaintiffs took possession of the rental property that weekend. The young people stayed with family friends at Holden Beach.
In December 1998, Ms. Solari received a letter from Hobbs Realty thanking her for her patronage and enclosing an inspirational Christian calendar. Ms. Solari became highly upset over what she perceived as a thoughtless, insincere gesture in view of the September 1998 incident. After agonizing over how to respond, eventually, on January 8, 1999, Ms. Solari wrote to Defendants to communicate the anxiety she had experienced as a result of the September incident and the holiday greetings. On January 12, 1999, Jimmy Hobbs telephoned Ms. Solari to apologize for the upsetting events and to attempt to make amends. During their conversation, Jimmy Hobbs and Ms. Solari entered an oral agreement. In exchange for Plaintiffs' promise not to take legal action against Defendants, Jimmy Hobbs agreed to provide Plaintiffs with an ocean-front vacation home in July 1999.
Controversy arose again in April 1999 when Ms. Solari discovered that Jimmy Hobbs' understanding of the January 12, 1999 agreement was that only the first week of the vacation would be complimentary, with Plaintiffs paying full price for the second week of their stay. Unable to resolve this disagreement, Plaintiffs canceled their July 1999 vacation. According to Plaintiffs, by the time of the cancellation, it was too late to find alternate accommodations for their summer vacation.
In September 1999, the parties sought once again to resolve their differences, this time through their attorneys. It is disputed whether an agreement was ever actually reached. Plaintiffs claim that they agreed to execute a non-disclosure and release agreement in exchange for $20,000, but that Defendants repudiated the agreement less than a month later, in October 1999. Defendants maintain that negotiations broke down because the parties were unable to agree on the terms to be included in the release, specifically, whether the unnamed Plaintiffs (Meghan Barrett, Specialist Travis Eskridge and Specialist Sam Lee) would release their potential claims, as well. Plaintiffs filed this lawsuit in October 2000.
Summary Judgment Standard
A party is entitled to judgment as a matter of law upon a showing that "there is no genuine issue of material fact." Fed.R.Civ.P. 56(c). The material facts are those identified by controlling law as essential elements of claims asserted by the parties. A genuine issue as to such facts exists if the evidence forecast is sufficient for a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of its case as to which it would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In evaluating a forecast of evidence on summary judgment review, the court must view the facts and inferences reasonably to be drawn from them in the light most favorable to the nonmoving party. The court may not weigh conflicting evidence or resolve disputed facts. Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).
When the moving party has carried its burden, the party opposing the motion for summary judgment may not merely rest on its pleadings, but must provide evidence or point to evidence already in the record, properly authenticated pursuant to Rule 56(e), that would be sufficient to support a jury verdict in its favor. See Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 255; Orsi v. Kirkwood, 999 F.2d 86 (4th Cir. 1993). The nonmoving party must show more than some "metaphysical doubt" that genuine and material factual issues exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), cert. denied, 481 U.S. 1029 (1987). A mere scintilla of evidence is insufficient to circumvent summary judgment. Anderson, 477 U.S. at 252. Instead, the nonmoving party must convince the court that, upon the record taken as a whole, a rational trier of fact could find for the nonmoving party. Id. at 248-49. Trial is unnecessary if "the facts are undisputed, or if disputed, the dispute is of no consequence to the dispositive question." Mitchell v. Data General Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993).
Analysis
A. Plaintiffs' Motion to Refuse Summary Judgment
On October 2, 2001, Plaintiffs filed a motion to refuse summary judgment pursuant to Federal Rule of Civil Procedure 56(f). (Pleading no. 35.) Rule 56(f) permits the court to refuse to entertain a motion for summary judgment, or grant a continuance, when it appears from the affidavits of the party opposing summary judgment that there has been inadequate time for discovery or the party is otherwise unable to present facts essential to justify the opposition.
Discovery in this case was officially closed on July 31, 2001. At that time, pending before the court was a motion to compel discovery filed by Plaintiffs. The court heard oral argument on October 24, 2001, and resolved the motion to compel only partially in Plaintiffs' favor. (Pleading no. 44.) There is no suggestion by Plaintiffs that Defendants have not complied with the court's order. Plaintiffs' Rule 56(f) motion therefore appears moot. In any event, there has been adequate time for discovery, and Plaintiffs have submitted a plethora of evidence in opposition to summary judgment. Accordingly, Plaintiffs' Rule 56(f) motion to refuse to entertain Defendants' summary judgment motion should be denied.
B. Defendants' Motion for Summary Judgment on Race Discrimination Claims
Defendants argue that Plaintiffs cannot establish intentional racial discrimination under 42 U.S.C. § 1981 and 1982. Section 1981 prohibits race discrimination in the making and enforcing private contracts. The statute provides that "[a)ll persons . . . shall have the same right . . ., to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981 (a). This right extends to "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Id. § 1981(b). Section 1982 more specifically prohibits racial discrimination in the rental of real property. To succeed under either section, a plaintiff must prove discriminatory intent on the part of the defendant. Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989); General Bldg. Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982); Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 257 (4th Cir. 2001) (addressing § 1981 claim). A plaintiff may accomplish this by pointing to direct or circumstantial evidence of discriminatory purpose.
1. The September 25, 1998 Incident
Plaintiffs offer direct evidence of discriminatory intent in connection with James Hobbs' September 25, 1998 denial of access to a vacation home rented to Plaintiffs. Direct evidence includes "`evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested . . . decision.'" Brinkley v. Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999) ( quoting Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995)). Plaintiffs point to evidence that as James Hobbs walked back to his car after refusing to give Loren Bynum and her friends the key to the vacation home, he commented under his breath that he did not rent to "niggers." (Pleading no. 37, Ex. C, Barrett Aff. ¶ 26; Pleading no. 33, Loren Bynum Dep. at 42.) Defendants deny that James Hobbs made this comment, but it is not for the court to decide matters of credibility on summary judgment. Plaintiffs have proffered sufficient direct evidence — the utterance of an "unambiguously racial epithet" that is "pure anathema" to African-Americans — to survive summary judgment on the §§ 1981 and 1982 claims arising out of the September 25, 1998 incident. Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001).
While Plaintiffs appear to assert discrimination claims for this incident only against James Hobbs, it is undisputed that, at least at the time of the September 25, 1998 incident, Hobbs Realty still operated as a general partnership. Accordingly, both Hobbs Realty and James Hobbs' partner, Jimmy Hobbs., may be exposed to joint and several liability for the conduct of James Hobbs, Sr. See N.C. Gen. Stat. §§ 59-39(a), 59-43 and 59-45.
Defendants argue that Harvey Bynum and Frances Solari cannot rely on the racial epithet to support their discrimination claims because they were not present when the epithet was made and, in any event, were assured by James Hobbs that they could take possession of the property when they arrived the following morning. In support of this argument, Defendants cite a single Fourth Circuit case in which the court found that an insurance agent lacked standing to challenge certain insurance practices that allegedly discriminated against minority home purchasers. See Mackey v. Nationwide Ins. Companies, 724 F.2d 419 (4th Cir. 1984).
The instant case is readily distinguishable from Mackey where the insurance agent had no direct stake in or injury from the allegedly discriminatory practices. Plaintiffs Harvey Bynum and Frances Solari sufficiently allege a distinct and palpable, particularized injury traceable to Defendant James Hobbs' alleged conduct on September 25, 1998: interference with their right to enforce and enjoy the privileges of a contract. Defendant James Hobbs allegedly denied Loren Bynum and her friends access to the rental home on the contractually agreed-upon day, based on the skin color of Ms. Bynum and/or her guest, Specialist Travis Eskridge. The fact that the epithet was not directed at Ms. Solari and Mr. Bynum is not dispositive. Among other things, "`[i]t is well-settled that a claim of discrimination based on an interracial relationship or association is cognizable under Section 1981.'" See Murrell, 262 F.3d at 258 ( quoting Rosenblatt v. Bivona Cohen, P.C., 946 F. Supp. 298, 300 (S.D.N.Y. 1996)). Further, Ms. Solari's status as a non-minority does not defeat standing. Members of both racial minorities and non-minorities may sue for violations of § 1981. Id. (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 286-87 (1976) and Fiedler v. Marumsco Christian Sch., 631 F.2d 1144, 1150 (4th Cir. 1980)).
2. Claims Arising from the Attempted Settlement of Plaintiffs' Claims
Plaintiffs also allege racial discrimination by Jimmy Hobbs in connection with two attempts, in January 1999 and September 2000, to resolve the parties' differences. In a telephone conversation on January 12, 1999, Jimmy Hobbs and Ms. Solari thought they had resolved the dispute: Defendant agreed to provide a complimentary beach house to the Plaintiffs in return for Plaintiffs' agreement to release their claims. Ms. Solari contends that the agreement was for two free weeks. Jimmy Hobbs contends that he agreed to waive the rental fee only for the first week. To confirm their arrangement, Hobbs Realty sent Plaintiffs two rental deposit requests in late January, one for each week reserved in July 1999, only one of which reflects payment by Hobbs Realty. (Pleading no. 33, Dep. Exs. 8 and 9.) Ms. Solari admits that she received these notices but neglected to examine them. (Pleading no. 33, Frances Solari Dep. at 80-81.) When Plaintiffs failed to submit the required deposit for the second week, Hobbs Realty sent a second notice in April, once again indicating that a deposit was owed on the second week. (Dep. Ex. 12; Solari Dep. at 81.)
Plaintiffs maintain that "Defendant Jimmy Hobbs, Jr., motivated by racial bias and with callous disregard for the Plaintiffs' constitutionally protected rights to equal protection, intentionally and deliberately waited until late April, 1999 to repudiate the January 12, 1999 agreement between Plaintiffs and Defendants." (Compl. ¶ 84.) Even assuming for purposes of this motion that there is evidence that Jimmy Hobbs breached an agreement to provide a two-week free rental, Plaintiffs have not produced sufficient evidence to raise a genuine dispute of fact on the issue of discriminatory intent. The company's failure to post a HUD poster and/or use African American models in its brochures, attested to by Ms. Solari, are inadequately probative of discriminatory intent on the part of Jimmy Hobbs. If anything, Plaintiffs' own allegations and testimony suggest that Jimmy Hobbs' dealings with Ms. Solari were driven not by racial animus but by remorse for his father's conduct in not housing Loren Bynum and her friends on September 25, 1998. (Compl. ¶ 64; Pleading no. 33, Dep. Ex. 14, notes of Frances Solari.)
The parties once again attempted to settle their differences in September 2000, this time through their respective counsel. The negotiations ultimately failed, and Plaintiffs assert that this failure amounts to a repudiation by Defendants. Defendants argue that the settlement was never firm, because Plaintiffs would not agree on the terms of the release requested by Defendants. Further, even assuming a breach of the September 2000 settlement agreement by Defendants, Defendants argue that Plaintiffs offer no evidence that the failure to settle in September 2000 was motivated by racial animus or discriminatory intent. When asked about Plaintiffs' evidence on their claim regarding the September 2000 settlement negotiations, Harvey Bynum testified as follows:
Q. And with regard to the 2000 agreement, what about that agreement not going forward do you contend shows willful racial discrimination?
A: Because we thought we had a deal, and we didn't.
Q: Anything else?
A: No.
Q: With regard to the 1999 agreement?
A: The same thing.
(Pleading no. 33, Harvey Bynum Dep. at 93.) Mr. Bynum candidly admitted in his deposition that he was unaware of any evidence of racial animus after the statement that James Hobbs allegedly made on the evening of September 25, 1998. Id. pp. 53-54. Once again, Plaintiffs offer insufficient evidence to create a genuine dispute on the issue of discriminatory intent.
It is clear that there have been significant conflicts between Plaintiffs and Jimmy Hobbs. However, as the Fourth Circuit has observed, the "[l]aw does not blindly ascribe to race all personal conflicts between individuals of different races." Hawkins v. Pepsico, Inc., 203 F.3d 274, 282 (4th Cir.), cert. denied, 531 U.S. 875 (2000). Rather, "legally sufficient evidence is required to transform an ordinary conflict . . . into an actionable claim of discrimination." Id. Plaintiffs point to insufficient evidence of racial animus during the 1999 or 2000 settlement negotiations, and Defendants are entitled to summary judgment dismissing the discrimination claims to the extent that they are based on these events.
C. Defendants' Motion for Summary Judgment on Plaintiffs' Claim for Conspiracy to Interfere with Plaintiffs' Rights to Equal Protection
Plaintiffs allege that Defendants conspired to violate Plaintiffs' civil rights in violation of 42 U.S.C. § 1985 (3) and N.C. Gen. Stat. § 99D-1. Section 1985(3) recognizes a cause of action for conspiracy to violate an individual's civil rights. Similarly, under North Carolina state law, section 99D-1 provides a civil cause of action where two or more persons, motivated by race, conspire to interfere with the exercise or enjoyment by any other person of a right secured by the United States or North Carolina Constitution, and use repeated harassment to commit any act in furtherance of the conspiracy. See N.C. Gen. Stat. § 99D-1(1) and (2); Zenobile v. McKecuen, 144 N.C. App. 104, 548 S.E.2d 756 (2001). Neither statute is, of itself, a source of substantive rights. "The charge of conspiracy itself does nothing more than associate the defendants together and perhaps liberalize the rules of evidence to the extent that under proper circumstances the acts and conduct of one might be admissible against all." W.B. Shope v. E. E. Boyer, 268 N.C. 401, 405, 150 S.E.2d 771, 774 (1966).
Section 1985(3) provides:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
The law is well settled that to establish a cause of action for conspiracy to deny civil rights under either section 1985(3) or N.C. Stat. § 99D-1, a plaintiff must prove: (1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy. See Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995) (citing Buschi v. Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985) and Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)). To prove a "conspiracy of two or more persons," the plaintiff must show an agreement between or a "`meeting of the minds'" of the defendants to violate the plaintiffs constitutional rights. See id. at 1377 (citations omitted). The Fourth Circuit has noted that, under this standard, it "has rarely, if ever, found that a plaintiff has set forth sufficient facts to establish a [civil] conspiracy, such that the claim can withstand a summary judgment motion." Id.
This court has found insufficient evidence of discriminatory animus on the part of Jimmy Hobbs in connection with the settlement(s) and settlement negotiations occurring after the initial incident. Accordingly, the conspiracy claim, as it relates to those two claims, clearly fails. With regard to §§ 1981 and 1982 claims arising from the September 25, 1998 incident, which survive summary judgment, Plaintiffs have not pointed to any evidence of an agreement or "meeting of the minds" to achieve the wrongful conduct.
Accordingly, the court finds that Plaintiffs have failed to create a genuine dispute of material fact sufficient to survive summary judgment on their federal and state law civil conspiracy claims.
D. Defendants' Motion for Summary Judgment on Plaintiffs' Unfair or Deceptive Trade Practices Claim
Plaintiffs' final claim against Defendants is for unfair and deceptive trade practices in violation of N.C. Gen. Stat. § 75-1.1. The North Carolina Unfair Trade Practices Act ("UTPA") proscribes business practices that are either unfair or deceptive. To prevail under Chapter 75, a plaintiff must show: (1) an unfair or deceptive act or practice; (2) in or affecting commerce; (3) which proximately caused actual injury to the plaintiff or his business. Combs Associates, Inc. v. Kennedy, 555 S.E.2d 634, 642 (2001). The concept of unfairness is broader than the concept of deceit. A trade practice is unfair when it offends established public policy because it is "`immoral, unethical, oppressive, unscrupulous, or substantially injurious'" to consumers. Id. (quoting Process Components, Inc. v. Baltimore Aircoil Co., 89 N.C. App. 649, 654, 366 S.E.2d 907, 911, affirmed, 323 N.C. 620, 374 S.E.2d 116 (1988)). A trade practice is deceptive if it "`has the capacity or tendency to deceive.'" Id. (quoting Edwards v. West, 128 N.C. App. 570, 574, 495 S.E.2d 902, 924 (1998)). The issue of whether an act is unfair and/or deceptive is one of law for the court, although disputes over the facts on which such a legal decision is based are for the trier of fact. See Bartolomeo v. S.B. Thomas, Inc., 889 F.2d 530, 534 (4th Cir. 1989).
First, Plaintiffs claim that there are genuine issues of material fact as to whether James Hobbs discriminated against Loren Bynum and her friends based on the race of Loren Bynurn and/or Specialist Travis Eskridge. Plaintiffs claim that the conduct of James Hobbs on September 25, 1998 was unfair within the meaning of the UTPA because he abused his position of power, humiliated the group of young people and exposed them to risk by turning them out in an unknown place at an extremely late hour, many miles from home. See Johnson v. Phoenix Mutual Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610, 621-22 (1980). This court agrees that there is a genuine dispute of fact concerning the conduct of James Hobbs on September 25, 1998, which conduct may be sufficient to support a finding of "unfairness" in violation of the UTPA.
Plaintiffs further allege that there is a genuine dispute of material fact as to whether Jim-my Hobbs misled Frances Solari into thinking that Hobbs Realty would give Plaintiffs two free weeks at Holden Beach in July 1999, then repudiated the contract after Plaintiffs had canceled their previously-made arrangements elsewhere and it was too late for Plaintiffs to make alternative arrangements. According to Plaintiffs, such facts would support a finding of deceptive trade practices prohibited by the UTPA. The evidence before the court establishes, at most, a misunderstanding between Frances Solari and Jimmy Hobbs concerning the terms of the agreement. While Plaintiff claims she understood from the conversation with Jimmy Hobbs on January 12, 1999 that Hobbs Realty would give her family a complimentary vacation house for two weeks, she admits that she received written confirmation materials to the contrary as early as late January, but never read them. On this evidence, Plaintiff has no actionable UTPA claim. See Cockman v. White, 76 N.C. App. 387, 389, 333 S.E.2d 54, 55 (1985). Defendant Jimmy Hobbs cannot be charged with being "deceptive" about a term which, it is undisputed, he openly and timely disclosed in a clear fashion to Plaintiffs. Moreover, Plaintiffs' UTPA claim regarding the January 1999 incident fails because it does not rise above a mere breach of contract. Under North Carolina law, "a mere breach of contract, even if intentional, is not sufficiently unfair and deceptive to sustain an action under N.C.G.S. § 75-1.1." Branch Banking Trust Co. v. Thompson, 418 S.E.2d 694, 700 (N.C. 1992). There must be "substantial aggravating circumstances" to convert a simple breach of contact action to a UTPA claim. Id.
Conclusion
For the reasons set forth above, IT IS RECOMMENDED that Defendants' Motion for Summary Judgment, or Alternatively, for Partial Summary Judgment (Pleading no. 29) be granted in part to dismiss Plaintiffs' claims under 42 U.S.C. § 1981 and 1982 to the extent that they are based on the incidents of January 1999 and September 2000; to dismiss Plaintiffs' federal and state law claims for civil conspiracy; and to dismiss Plaintiffs' claims under the North Carolina Unfair Trade Practices Act to the extent that they are based on the attempted settlements of January 1999 and/or September 2000. Defendants' motion for summary judgment should be denied as to Plaintiffs' claims under 42 U.S.C. § 1981 and 1982 and the North Carolina Unfair Trade Practices Act based on the alleged incident of September 25, 1998.Trial in this matter is scheduled for the April Master Calendar. In view of the impending trial date IT IS ORDERED that any objection to this Recommendation must be filed by March 8, 2002 and response by March 18.