Opinion
No. COA11–1314.
2012-04-3
Danielle C. SMITH, Plaintiff, v. BANK OF STANLY, Defendant.
James, McElroy & Diehl, P.A., by Bruce M. Simpson, for Plaintiff–Appellee. Law Offices of Denise Smith Cline, PLLC, by Denise Smith Cline; and Smith Moore Leatherwood LLP, by Matthew Nis Leerberg, for Defendant–Appellant.
Appeal by Defendant from order entered 10 June 2011 by Judge Tanya T. Wallace in Stanly County Superior Court. Heard in the Court of Appeals 22 February 2012. James, McElroy & Diehl, P.A., by Bruce M. Simpson, for Plaintiff–Appellee. Law Offices of Denise Smith Cline, PLLC, by Denise Smith Cline; and Smith Moore Leatherwood LLP, by Matthew Nis Leerberg, for Defendant–Appellant.
BEASLEY, Judge.
Bank of Stanly (Defendant) appeals from a 10 June 2011 order denying its Motion to Dismiss pursuant to Rule 12(b)(6) and Motion for Summary Judgment. For the following reasons, we affirm the order.
Danielle C. Smith (Plaintiff) was employed with Defendant from 2004 until 2008. On or about 17 March 2008, Plaintiff notified Defendant that she had been the victim of domestic violence the prior weekend. Plaintiff was away from the office on several occasions that week on matters related to the domestic violence incident. On or about 26 March 2008, Defendant's President and Vice President of Human Resources met with Plaintiff to discuss Plaintiff's work performance and certain other incidents. During this meeting, Plaintiff was told she was being placed on probation. When Plaintiff returned to her office on 27 March 2008, certain private and confidential customer files had been removed from her office. On or about 1 April 2008, Defendant's Vice President of Human Resources spoke with Plaintiff via telephone about retrieving her personal belongings from her office. On that same date, Plaintiff signed a letter of resignation.
Plaintiff filed a verified complaint on 4 August 2009 asserting claims under the North Carolina Retaliatory Employment Discrimination Act (REDA) and the North Carolina Wage and Hour Act, along with claims of wrongful actions in violation of public policy, defamation, and sexual discrimination in violation of state law (the state case). Plaintiff also filed a verified complaint on 17 November 2009 based on the same set of facts but asserting claims under federal employment discrimination and retaliation law (the federal case). Defendant removed this case to federal court in the Middle District of North Carolina. Defendant moved for summary judgment in the federal case, and Magistrate Judge L. Patrick Auld issued a recommendation that Defendant's motion be granted on 11 February 2011. Senior District Judge N. Carlton Tilley, Jr. issued an order on 31 March 2011 adopting Magistrate Auld's recommendation.
By order filed 21 February 2011, the trial court granted summary judgment for Defendant as to Plaintiff's claim under the North Carolina Wage and Hour Act in the state case. After the 31 March 2011 order in the federal case, Defendant filed a Motion to Dismiss pursuant to Rule 12(b)(6) and Motion for Summary Judgment in the state case on 6 May 2011, alleging that the order in the federal case precludes any further litigation under the principles of res judicata, or alternatively collateral estoppel. This motion was denied by the trial court on 10 June 2011. Defendant filed a timely notice of appeal on 30 June 2011.
I.
At the outset, we note that Defendant's appeal is from an order “made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy”, and so is interlocutory. Stanford v. Paris, 364 N.C. 306, 311, 698 S.E.2d 37, 40 (2010) (internal quotation marks omitted). “Generally, a party cannot immediately appeal from an interlocutory order unless failure to grant immediate review would affect a substantial right pursuant to N.C.G.S. sections 1–277 and 7A–27(d).” Davis v. Davis, 360 N.C. 518, 524, 631 S.E.2d 114, 119 (2006) (internal quotation marks and brackets omitted). However, Defendant's motion was based on the principles of res judicata, and our Supreme Court has recognized that “the denial of a motion for summary judgment based on the defense of res judicata may affect a substantial right, making the order immediately appealable.” Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993) (citations omitted). Thus we find that this appeal is properly before this Court.
II.
Defendant argues that the trial court erred in denying its motion to dismiss and for summary judgment because Plaintiff's claims are barred by res judicata. We disagree.
In order to withstand a motion to dismiss pursuant to N.C. Gen.Stat. 1A–1, Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the complaint must be legally sufficient. See State of Tennessee v. Environmental Management Comm., 78 N.C.App. 763, 765, 338 S.E.2d 781, 782 (1986). “A legal insufficiency may be due to ... the disclosure of some fact which will necessarily defeat the claim.” Id. We review an appeal of a 12(b)(6) motion to dismiss for failure to state a claim under a de novo review. Page v. Lexington Ins. Co., 177 N.C.App. 246, 248, 628 S.E.2d 427, 428 (2006). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen.Stat. § 1A–1, Rule 56(c) (2011). “We review a trial court's order granting or denying summary judgment de novo.” Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009).
“The doctrine of res judicata was developed by the courts to protect litigants from the burden of relitigating previously decided matters and promoting judicial economy by preventing needless litigation.” Clancy v. Onslow Cty., 151 N.C.App. 269, 271, 564 S.E.2d 920, 922 (2002) (citation and internal quotation marks omitted). Under res judicata, “a final judgment on the merits in a prior action will prevent a second suit based on the same cause of action between the same parties or those in privity with them.” Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986). “Strict identity of issues, however, is not absolutely required and the doctrine of res judicata has been accordingly expanded to apply to those issues which could have been raised in the prior action, but were not.” Kabatnik v. Westminster Co., 63 N.C.App. 708, 712, 306 S.E.2d 513, 515 (1983).
Even assuming, arguendo, that the doctrine of res judicata does apply here, “before res judicata can bar the instant action, this Court must [ ] decide whether plaintiff, with reasonable diligence, could and should have brought the claims included in the instant action” with the federal action. Skinner v. Quintiles Transnational Corp., 167 N.C.App. 478, 484, 606 S.E.2d 191, 194 (2004).
Plaintiff asserts that she received her Right to Sue letter from the North Carolina Department of Labor on 12 May 2009, and thus had 90 days from that date to file her state claim. SeeN.C. Gen.Stat. § 95–243(b) (2011) (“A civil action under this section shall be commended by an employee within 90 days of the date upon which the right-to-sue letter was issued....”) However, Plaintiff did not receive her Right to Sue letter from the EEOC until 19 August 2009, which was more than 90 days after she received her letter from the State. Thus, Plaintiff argues she could not have filed both claims in one action because her state claim would not have been timely if she waited for her federal right to sue letter before filing.
Defendant does not contest this timetable, but contends that Plaintiff declined an opportunity to amend her state complaint to include the federal claims after her federal complaint was filed, and thus Plaintiff could have, with “reasonable diligence” brought all the claims in one action. Defendant's argument is without merit. The test is whether Plaintiff could and should have brought the claims in both actions in one action instead. At the time that Plaintiff filed the state action, she could not have brought the federal action as well. Defendant does not suggest that Plaintiff could have brought the claims together in one suit when she initiated the first action, just that Plaintiff declined an opportunity to join the claims after both complaints had been filed.
Defendant has failed to show that Plaintiff's claims are barred by the affirmative defense of res judicata, or that Defendant is entitled to judgment as a matter of law. Accordingly, the trial court's order denying Defendant's motion to dismiss and for summary judgment is affirmed.
Affirmed. Judges BRYANT and HUNTER, JR. concurs.
Report per Rule 30(e).