Opinion
4:23-CV-11-FL-BM
06-10-2024
KAROLINA SORENSSON, Plaintiff, v. DOLLAR GENERAL CORPORATION, Defendant.
MEMORANDUM AND RECOMMENDATION
Brian S. Meyers, United States Magistrate Judge
This pro se case is before the court for a frivolity review of the complaint [D.E. 1-1; 1-2; 1-3] and amended complaint [D.E. 10] of plaintiff Karolina Sorensson (“plaintiff”), pursuant to 28 U.S.C. § 1915(e)(2)(B). This matter is also before the court on the motion by defendant Dollar General Corporation (“defendant” or “Dollar General” or “Dollar General Corporation”) to dismiss [D.E. 13] plaintiff's complaint (i) pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure, and (ii) for failure to comply with this court's June 28, 2023 order. Defendant filed a memorandum in support of the motion to dismiss. [D.E. 14]. Plaintiff did not file a response to defendant's motion to dismiss, the time within which to do so has expired, and the motion is ripe for adjudication. The motion was referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1).
Due to plaintiff's pro se status, the undersigned construes plaintiff's complaint [D.E. 1-1], attachment [D.E. 1-2], Civil Cover Sheet [D.E. 1-3], and amended complaint [D.E. 10] as plaintiff's operative complaint. This memorandum and recommendation refers to these filings collectively as the “complaint,” and includes citations to the specific documents where relevant.
For the reasons set forth below, upon the frivolity review of the undersigned, it is RECOMMENDED that plaintiff's complaint [D.E. 1-1; 1-2; 1-3; 10] be dismissed in part and allowed to proceed in part.
For the reasons set for below, it is RECOMMENDED that defendant's motion to dismiss [D.E. 13] plaintiff's complaint: (i) pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6) be DENIED AS MOOT WITHOUT PREJUDICE; and (ii) for plaintiff's failure to comply with this court's June 28, 2023 order be DENIED.
I. PROCEDURAL BACKGROUND
On February 1, 2023, plaintiff, proceeding pro se, initiated this action by filing an application to proceed in forma pauperis (“IFP application”) [D.E. 1] that included a proposed complaint against the defendant [D.E. 1-1; 1-2; 1-3]. On June 28, 2023, the undersigned issued an order granting plaintiff's IFP application, but ordering her to particularize her complaint with respect to certain issues “potentially bearing on whether certain of plaintiff's allegations are sufficient to survive frivolity review.” [D.E. 7] at 3.
The undersigned specifically noted that:
1. The undersigned construes plaintiff's reference to “federal laws that prohibit discrimination based on race/national origin and incl[uding] but not limited to discrimination because of disability” to include a claim under the American with Disabilities Act of 1990, as amended, but it is unclear whether her race and national origin discrimination claim is based on 42 U.S.C. § 1981, Title II of the Civil Rights Act or another federal statute . . .
2. As currently written, the court cannot determine what plaintiff claims and/or what relief she seeks in her request for “cancellation of the unfair trespass from that particular store where the Dollar General Corporation employees injured me, harassed me and profiled me, including terrorizing me with the unfair police ....”
3. Additionally, it is unclear what legal claim, if any, plaintiff is seeking to plead in her allegation that “Dollar General Corporation also apparently obstructed justice with their strong arm connections because judges and [district attorney] Matt Delbridge did not want to take my charges against assailant Turner because she's American.” . . .
4. Regarding plaintiff's claims of negligence and defamation (see [D.E. 1-3] (Civ. Cover Sheet § VI. Cause of Action)), the court cannot determine
which alleged facts in the complaint, if any, are intended to support the relevant elements of these claims.[D.E. 7] at 3-4 (internal citations omitted).
The undersigned specifically noted that “[f]ailure by plaintiff to file an amended complaint by July 17, 2023, may result in a recommendation by the undersigned to the presiding district judge that this case be dismissed in whole or in part.” Id. at 5. On July 12, 2023, plaintiff filed a motion for extension of time to file her amended complaint [D.E. 8], which the court granted, extending the deadline to file the amended complaint to August 1, 2023. [D.E. 9]. On August 1, 2023, plaintiff filed an amended complaint. [D.E. 10]. On November 7, 2023, counsel for defendant made a notice of appearance on behalf of defendant [D.E. 11] and filed a motion to dismiss [D.E. 13] together with a supporting memorandum [D.E. 14]. Plaintiff did not file a response to defendant's motion to dismiss.
II. PLAINTIFF'S COMPLAINT
A. Factual Allegations
Although difficult to discern, plaintiff's complaint appears to primarily arise from, or relate to, an incident at a Dollar General store, during which Dollar General employees and other patrons allegedly racially profiled plaintiff, falsely accused her of shoplifting, physically assaulted her, and made false reports to the police leading to plaintiff's arrest - all while plaintiff was allegedly only attempting to return certain items to the store. Plaintiff's complaint appears to allege the following legal claims: discrimination; negligent hiring and training; conversion; assault and battery; malicious prosecution and obstruction of justice; defamation and slander; and intentional infliction of emotional distress. The undersigned attempts to summarize the facts underlying plaintiff's claims below, in the light most favorable to plaintiff given the posture of the case.
The undersigned expresses no opinion concerning the veracity of plaintiff's allegations.
Plaintiff alleges that on June 19, 2022, plaintiff, dressed in her indigenous attire, entered a Dollar General store in Kinston, North Carolina, in order to return certain merchandise items to the store, as well as to buy food and medication. [D.E.; 1-3] at 2. Plaintiff explains in her complaint that she “made sure [that the Store Manager, Ms. Geanetta Turner (“Ms. Turner”)] saw the small basket of the items [plaintiff] was returning” and that Ms. Turner “assented with her head.” Id. Plaintiff further alleges that because the store was busy and poorly organized, she decided to ask for store credit for the items she wanted to return rather than purchasing additional items. Id. A patron allegedly started threatening plaintiff with physical violence and telling plaintiff “to go back to [her] country.”; Id. Plaintiff alleges that the Dollar General employees “were supporting the communication of threats of [this] racist American.” [D.E. 10] at 2. Plaintiff elsewhere alleges that “apparently [Ms.] Turner and staff were also chanting to [plaintiff] to go back to [her] country of origin.” [D.E. 1-2] at 1; [D.E. 10] at 3. Plaintiff claims that the chanting and insults were “based on [plaintiff's] race Hispanic, with a Spanish accent, disabled LGBTQ (asexual) non violent female” [D.E. 10] at 2. Plaintiff alleges that following these events, Ms. Turner “started to support the discrimination and harassment of said Dollar General store employees and the racial insults, humiliation, and communication of threats of [the] white customer” (id. at 3) and “started to scream at [plaintiff] to leave the store and . . . was pushing her 300lbs (then) frame body against [plaintiff's] face and shoulder[,] . . . started laughing for no reason at all and grabbed [plaintiff's] arm, hit [plaintiff] and shook [plaintiff] violently while accusing [plaintiff] of shoplifting [while] screaming ‘you won't get away with these things'” ([D.E. 1-1] at 2). Plaintiff claims that as a result of Ms. Turner's assault, plaintiff sustained bruises and pain in her arm that lasted for a significant period of time after the incident ended. [D.E. 10] at 1. Ms. Turner then allegedly took plaintiff's returns “from the floor and smashed them against the wall.” [D.E. 1-1] at 2. Ms. Turner thereby destroyed or attempted to destroy plaintiff's private property. [D.E. 10] at 4. Plaintiff also alleges that her “very expensive phone . . . shattered on the very hot pavement of the parking lot of said Dollar General” store at some point during the encounter. Id. Upon plaintiff's protestations that closed circuit television footage would show that she was not shoplifting, but was in fact returning the items, Ms. Turner allegedly instructed the other cashier to retrieve the video footage. [D.E. 1-1] at 2. Plaintiff alleges that Dollar General called the police who arrested plaintiff for “making a false police report [to] two [irate, non-reasonable] Caucasian Officers.” Id.; [D.E. 10] at 1. Plaintiff explains that Ms. Turner falsely claimed that plaintiff assaulted her. [D.E. 1] at 2; [D.E. 10] at 4.
Plaintiff makes numerous additional allegations against this individual including that plaintiff encountered this “reckless driver angry Caucasian female” in the Dollar General parking lot, where this woman was trying to get a parking spot close to the front of the store. [D.E. 1-1] at 2; [D.E. 10] at 3. As this individual is not named as a defendant and there are no allegations that this individual was a Dollar General employee, the undersigned will not discuss plaintiff's numerous allegations and grievances against this individual except as necessary context for plaintiff's claims against Dollar General Corporation.
While plaintiff's handwritten filings occasionally use all caps, the undersigned has transliterated such statements into sentence case to facilitate their legibility.
Plaintiff alleges elsewhere that defendant manipulated the video footage showing “that [plaintiff] was not shoplifting [her] Dollar General Returns” ([D.E. 1-1] at 4) and “tweaked, erased the video of [plaintiff] entering said Dollar General store with a smaller basket of [her] returns” ([D.E. 10] at 2).
Plaintiff notes that it is implausible that she hurt Ms. Turner due to Ms. Turner's size and because at a subsequent hearing before Judge Stackhouse, Ms. Turner admitted that plaintiff had not hurt her. [D.E. 1-1] at 2.
Plaintiff further claims that Ms. Turner did “not show[] up in court for at least [two] court sessions clearly to have said false charges against [plaintiff] dropped” even though Ms. Turner allegedly acknowledged that plaintiff had not hurt her. [D.E. 1-1] at 2; [D.E. 10] at 4. When Ms. Turner then did appear in court on September 22, 2022, plaintiff alleges that at the courthouse, plaintiff “was on the floor throwing up and feeling as if [her] stomach and insides were being yanked off [her] body, [and Ms. Turner] was laughing kind of silently and in cruelty with the same evil smile she had when [Ms. Turner] produced bruises and attacked [plaintiff].” [D.E. 1-1] at 3.
Plaintiff also appears to make allegations about certain assistant district attorneys and others, providing, in part, that “[Assistant District Attorney] Carrere who was so chummy with [Ms.] Turner and court appointed lawyer Sean P. Keenan . . . were laughing at my pain, suffering, and disabilities ” [D.E. 1-1] at 3. However, the court does not construe this as an attempt to bring legal claims against them in this matter, as these individuals are not named as defendants. The undersigned, therefore, will not consider the allegations with respect to these individuals further, except as necessary for context, as discussed herein.
Plaintiff alleges that after sending a video and pictures of her injuries to a Dollar General email address, “explaining in . . . detail the attack of their employees against” plaintiff, a Dollar General representative contacted plaintiff and informed her that Dollar General “was going to pay for [plaintiff's] medical bills,” and asked plaintiff why she was returning so many items to the store. Id. at 4. Plaintiff alleges that she has not heard from defendant since that time. Id.
Plaintiff also alleges that in January 2022 or another time that winter, Ms. Turner had been hostile and “had been profiling [plaintiff]” when plaintiff had bought some antibiotic cream and some “coffeemilk, Starbucks” presumably at the Kinston Dollar General store and had “looked at [plaintiff] upside down.” [D.E. 10] at 5-6. Plaintiff appears to allege that she told Ms. Turner, who was staring at her, to pray for her because she was in a lot of pain, and Ms. Turner had responded that she would pray for her. [D.E. 10] at 6. Plaintiff also claims that she has “been losing clumps of hair” and has “PTSD from [Dollar General's] profiling attack, humiliation and discriminatory language.” Id. at 4. Similarly, plaintiff noted that she has “to see [her] therapist and doctors regularly because [of] these incidents of violence and malicious persecution . . . exacerbating [plaintiff's] disabilities besides from the physical pain.” Id. at 5.
B. Jurisdictional Allegations
Plaintiff alleges that this court has both federal question and diversity jurisdiction. [D.E. 1-3] at 1; Civ. Cover Sheet § II.3, 4 (“Federal Question” and “Diversity” boxes marked as basis of jurisdiction); § III (“Plaintiff” marked as “Citizen of This State” and “Defendant” marked as “Incorporated and Principal Place of Business in Another State”); see also [D.E. 10] at 10 (noting Federal Question jurisdiction).
C. Legal Claims
Plaintiff claims that defendant “has been supporting profiling of disabled, Hispanic, low income females, 56 years old (disability, race/place of national origin, age) such as [plaintiff], plus the injuries and the extreme emotional pain and suffering inflicted by [defendant] and its employees[] have exacerbated [plaintiff's] disabilities, adding to injury.” [D.E 1-1] at 3. Plaintiff alleges that “Dollar General Corporation hires this type of lying criminal (violent and racist and aggressive) such as [Ms. Turner] and staff.” [D.E. 1-1] at 3. Elsewhere, plaintiff alleges that defendant and its employees “support[] racism, profiling because of national origin, and also for them being cruel and punishing [plaintiff] by obstructing [her] access to food and over the courter medications and even toiletries that [plaintiff] used to purchase at [Dollar General Corporation].” [D.E. 1-1] at 4. Plaintiff also raises a claim of negligent training of employees. [D.E. 10] at 12. Plaintiff alleges that the district attorneys are “maliciously persecuting [sic] [her]... [with] false charges and allegations.” [D.E. 10] at 7. Plaintiff further alleges that defendant “apparently obstructed justice with their strong arm/connections because judges and [District Attorney] Matt Delbridge did not want to take [plaintiff's] charges against assailant [Ms.] Turner because she is American.” [D.E. 1-1] at 4. In her Civil Cover Sheet, plaintiff lists the following causes of action: “negligence, intentional infliction of emotional distress, discrimination, assault and battery . . . profiling, . . . lack of training to . . . its employees, making false report to police, . . . defamation, extreme emotional distress.” [D.E. 1-1] at 2-4; [D.E. 1-3] (Civ. Cover Sheet § VI. Cause of Action - Brief description of cause); see also [D.E. 10] at 11.
D. Relief Requested
Plaintiff asks this court for “protection from . . . [including] but not limited to Dollar General Corporation hiring vicious lawyers who will try to discredit me and ruin my life and my family's well-being, we are all Hispanics.” [D.E. 1-1] at 4. Plaintiff also seeks “cancellation of the unfair [trespass charge] from that particular store where [defendant's] employees injured [plaintiff], harassed [her] and profiled [her] including terrorizing [her] with the unfair police.” [D.E. 1-1] at 4. Finally, plaintiff requests $200,000,000 in damages and for defendant to pay (i) any and all court costs and attorney's fees connected to the instant action and the criminal action following plaintiff's allegedly false arrest and (ii) all costs necessitated by defendant's alleged conduct, including for plaintiff's emergency room visits, therapist sessions, and gas for travel. [D.E. 1-1] at 4; [D.E. 10] at 13.
III. FRIVOLITY REVIEW
A. Applicable legal standard for frivolity review
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 31-33 (1992) (standard for frivolousness). A case is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to “less stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328. Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. See White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the factual allegations in the complaint must create more than a mere possibility of misconduct. Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007) (alterations in original) (internal quotation marks omitted)).
A court may also consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”); Hill v. Se. Reg'l Med. Ctr., No. 7:19-CV-60-BO, 2019 WL 7041893, at *2 (E.D. N.C. Oct. 21, 2019), mem. & recomm. adopted, No. 7:19-CV-60-BO, 2019 WL 7163434 (E.D. N.C. Dec. 20, 2019), aff'd, 818 Fed.Appx. 261 (4th Cir. 2020) (discussing the lack of federal question jurisdiction and diversity jurisdiction during frivolity review as a basis for dismissal).
B. Analysis of Plaintiff's Claims
As noted above, although difficult to discern, plaintiff's complaint appears to allege the following legal claims: discrimination; negligent hiring and training; conversion; assault and battery; malicious prosecution and obstruction of justice; defamation and slander; and intentional infliction of emotional distress. Each is discussed below.
1. Discrimination claims
“Section 1981 protects all persons from racial discrimination in making and enforcing contracts.” Woods v. City of Greensboro, 855 F.3d 639, 645 (4th Cir. 2017) (citing 42 U.S.C. § 1981). Here, plaintiff alleges that she was racially profiled and prevented from returning her items to a Dollar General store on the basis of her perceived national origin and race. [D.E. 1-1] at 2.
Specifically, the undersigned notes that according to the allegations in plaintiff's complaint, defendant's employees condoned and participated in shouting racially discriminatory taunts at plaintiff and did not allow plaintiff to return items to their store, and, instead, accused her of shoplifting. [D.E. 1-1] at 2; [D.E. 10] at 3. The undersigned construes plaintiff's allegations of “profiling because of national origin” ([D.E. 1-1] at 4) as referencing the same conduct. In liberally construing plaintiff's complaint [D.E. 1-1; 1-2; 1-3; 10], the undersigned finds that plaintiff has adequately alleged facts to survive frivolity review regarding her claim that racial discrimination by Dollar General employees prevented her from returning her items to their store.
Additionally, the undersigned finds that plaintiff has adequately alleged that she was prevented from exercising a contractual right to return items to the store. See Dollar General, Help Center - Returns, https://perma.cc/CHN4-TRKB (last visited June 4, 2024) (“Returns without receipt- Merchandise returned without a receipt will be exchanged for merchandise of equal value or a Gift Card of equal value.”); see also Garrett v. Tandy Corp., 295 F.3d 94, 102 (1st Cir. 2002) (“the right to return merchandise is incident to, and, thus, part of, the prototypical retail contract.”). Accordingly, the undersigned RECOMMENDS that plaintiff's claim of discrimination based on race and national origin under 42 U.S.C. § 1981 be allowed to PROCEED.
Plaintiff also appears to allege that she faced discrimination because of her non-violent religion ([D.E. 10] at 5) and her LGBTQ status (id. at 2). The undersigned does not find any facts in plaintiff's complaint [D.E. 1-1; 1-2; 1-3; 10] showing that the discrimination plaintiff allegedly experienced was connected to either of these protected classes. Accordingly, the undersigned finds any such claims meritless, and RECOMMENDS that any claims based on these categories be DISMISSED.
b. Section 2000a-1 of the Civil Rights Act, Title II
Section 2000a of the Civil Rights Act, Title II, provides that “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.” 42 USC § 2000a. “The elements of a claim under § 2000a essentially mirror those [in] § 1981.” Goode v. Waffle House, Inc., No. 5:03-CV-701-BO(3), 2006 WL 8438442, at *8 (E.D. N.C. Aug. 28, 2006). “The law limits [p]laintiff's recovery under § 2000a to injunctive and declaratory relief, and attorney's fees.” Id. (citing Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968)).
While plaintiff's request for “protection from . . . [including] but not limited to Dollar General Corporation hiring vicious lawyers who will try to discredit [plaintiff] and ruin [plaintiff's] life and [her] family's well-being” ([D.E. 1-1] at 4), could arguably be construed as a request for injunctive relief, it does not represent relief that this court is legally able to provide. Similarly, plaintiff requests “cancellation of the unfair [trespass charge] from that particular store where [defendant's] employees injured [plaintiff], harassed [her] and profiled [her] including terrorizing [her] with the unfair police[.]” [D.E. 1-1] at 4. The court construes this as a request to overturn a determination made in a state court criminal proceeding.
The Rooker-Feldman doctrine bars federal courts from sitting “in direct review of state court decisions.” D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 482 n.16 (1983). “[T]he Rooker-Feldman doctrine applies only when the loser in state court files suit in federal district court seeking redress for an injury allegedly caused by the state court's decision itself.” Davani v. Va. Dep't of Transp., 434 F.3d 712, 713 (4th Cir. 2006) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)). In other words, Rooker-Feldman applies “when the federal action ‘essentially amounts to nothing more than an attempt to seek review of [the state court's] decision by a lower federal court.'” Davis v. Durham Mental Health Devel. Disabilities Substance Abuse Area Auth., 320 F.Supp.2d 378, 388 (M.D. N.C. 2004) (quoting Plyer v. Moore, 129 F.3d 728, 733 (4th Cir. 1997)). “[T]he key inquiry is not whether the state court ruled on the precise issue raised in federal court, but whether the ‘state-court loser who files suit in federal court seeks redress for an injury caused by the state-court decision itself.'” Willner v. Frey, 243 Fed.Appx. 744, 747 (4th Cir. 2007) (quoting Davani, 434 F.3d at 718). “‘[A] party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights.'” Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198 (4th Cir. 2000) (quoting Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)).
Here, plaintiff appears challenge a trespass or other criminal charge made by a state court. See [D.E. 1-1] at 4. Determination of plaintiff's claims in the instant case in her favor would necessarily require this court to find that the state court proceedings were conducted in an improper manner, produced an improper result, or both. The Rooker-Feldman doctrine prohibits this court from making such a determination. Plaintiff, of course, retains access to the state court to pursue her claims. Accordingly, plaintiff has not stated a viable claim for injunctive or declaratory relief under Section 2000a-1 of the Civil Rights Act, Title II, and the undersigned RECOMMENDS that plaintiff's claims under this statute be DISMISSED.
c. Americans with Disabilities Act (“ADA”)
Plaintiff alleges that she faced discrimination because of her disabilities (see, e.g., [D.E 11] at 3) and marks “Amer. w/Disabilities - Other” as one of the natures of her suit on her Civil Cover sheet (See [D.E. 1-3] (Civ. Cover Sheet § IV. Nature of Suit)). Specifically, plaintiff appears to allege that she is somewhat hard of hearing which led, in part, to the verbal abuse she experienced from the Caucasian, female Dollar General customer discussed above. [D.E. 10] at 3. (“Because and including but not limited to some of [plaintiff's] disabilities [she] could not hear a young cashier, an African American female apparently in her early twenties, said woman became frustrated, rolling her eyes and that's when the Caucasian nurse impersonator started her racism [and screaming the racial statements discussed above]”). Plaintiff also appears to allege that at some point prior to the events of June 19, 2022, she had informed Ms. Turner that she was in pain. [D.E. 10] at 6. However, nowhere does plaintiff expressly allege what provision of the ADA was violated, what disability or disabilities she has, how any disability impaired a major life activity, whether or how defendant's employees were aware of these disabilities, or how her disability or disabilities served as the basis of the discrimination that plaintiff suffered by defendant. See Chapman v. U.S. Postal Serv., 442 Fed.Appx. 480, 485 (11th Cir. 2011) (dismissing ADA claim for failure to state a claim for relief under the ADA where the plaintiff “did not specify whether she had a physical or a mental disability, what the disability was, or how it impaired a major life activity.”) (citing 42 U.S.C. § 12102(1)(A)). Accordingly, the undersigned RECOMMENDS that plaintiff's ADA claim be DISMISSED.
2. State law claims
In diversity jurisdiction cases, “federal courts . . . apply federal procedural law and state substantive law.” Hartford Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255, 261 n.3 (4th Cir. 2013). With respect to the substantive law, “[a] federal court sitting in diversity is bound to follow the choice of law rules of the forum state.” ESA, Inc. v. Walton Constr. Co., Inc., No. 7:04-CV-75-F(3), 2007 WL 9718764, at *1 (E.D. N.C. Mar. 16, 2007) (citing Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496-97 (1941)). North Carolina law “favors the use of the lex loci test in cases involving tort or tort-like claims.” SciGrip, Inc. v. Osae, 838 S.E.2d 334, 343 (N.C. 2020) (citing Boudreau v. Baughman, 368 S.E.2d 849, 853-54 (N.C. 1988); see also Connor v. Covil Corp., 996 F.3d 143, 146 n.1 (4th Cir. 2021) (“In tort actions, North Carolina courts adhere to the rule of lex loci and apply the substantive laws of the state in which the injuries were sustained.”) (internal quotation marks omitted) (quoting Johnson v. Holiday Inn of Am., Inc., 895 F.Supp. 97, 98 (M.D. N.C. 1995). “According to the lex loci test, the substantive law of the state where the injury or harm was sustained or suffered, which is, ordinarily, the state where the last event necessary to make the actor liable or the last event required to constitute the tort takes place, applies.” SciGrip 838 S.E.2d at 343 (internal quotations omitted) (quoting Harco Nat'l Ins. Co., v. Grant Thornton LLP, 689 S.E.2d 719, 724 (N.C. Ct. App. 2010).
Here, plaintiff alleges several tort claims arising from state law, including negligent hiring and training; conversion; assault and battery; malicious prosecution; defamation and slander; and intentional infliction of emotional distress. See [D.E. 1-1; 10]. Plaintiff alleges that she is a resident of Kinston, North Carolina ([D.E. 1-1] at 1) and further alleges that on June 19, 2022, she was injured by defendant in a Dollar General store located in Kinston, North Carolina (id. at 2). Additionally, the events alleged at the courthouse on September 22, 2022, also appear to have taken place in North Carolina. [D.E 1-1] at 3; [D.E. 10] at 7. Accordingly, the undersigned finds that North Carolina substantive law is applicable for any state law claims.
In North Carolina, employers may be held vicariously liable for tortious acts committed by their employees when “acting within the scope of [their] employment” under the doctrine of respondeat superior. Creek ex rel. Morgan v. North Carolina Dept. of Health and Human Services, 566 S.E.2d 832, 834 (N.C. Ct. App. 2002).
The North Carolina Supreme Court has further provided that
[i]f the servant was engaged in performing the duties of his employment at the time he did the wrongful act which caused the injury, the employer is not absolved from liability by reason of the fact that the employee was also motivated by malice or ill will toward the person injured, or even by the fact that the employer had expressly forbidden him to commit such act.Wegner v. Delly-Land Delicatessen, Inc., 153 S.E.2d 804, 807-08 (N.C. 1967).
With respect to intentional assaults under North Carolina law, this court has noted that the issue turns on:
whether the employee was “about his master's business or whether he stepped aside from his employment to commit a wrong prompted by a spirit of vindictiveness or to gratify his personal animosity or to carry out an independent purpose of his own,”
whether the employee acted “as a means or for the purpose of performing the work he was employed to do” or whether he “was advancing a completely personal objective,” or
whether an employee's act “was a means or method of doing that which he was
employed to do” or whether he “departed, however briefly, from his duties in order to accomplish a purpose of his own, which purpose was not incidental to the work he was employed to do.”Graham v. Family Dollar Stores, Inc., No. 5:21-CV-37-FL, 2021 WL 2954398, at *3 (E.D. N.C. July 14, 2021) (quoting Borneman v. United States, 213 F.3d 819, 828 (4th Cir. 2000)).
The undersigned finds for purposes of the instant frivolity review that plaintiff has sufficiently alleged that Ms. Turner was acting within the scope of her duties as an employee of Dollar General during the events that allegedly occurred at the Dollar General store. While plaintiff alleges that Ms. Turner and other Dollar General employees violated her rights, the context for such actions was Ms. Turner's duty to protect store property, which was arguably within the scope of her employment as the store manager. Cf. id. (finding in the context of a respondeat superior analysis under North Carolina law that “allegations permit the reasonable inference that the alleged physical confrontation between plaintiff and [the store representative, which allegedly ended with the store representative slashing the plaintiff's throat with a box cutter outside the store] represented an escalation of a work-related dispute” and thus was sufficient to survive a motion to dismiss). Accordingly, based upon plaintiff's allegations, construed in a light most favorable to her and for purposes of this frivolity review, Ms. Turner's employer could be vicariously liable for the tort claims discussed below.
a. Negligent hiring and training
Plaintiff alleges negligent hiring and a failure to train by the Dollar General Corporation in connection with the discriminatory and unlawful actions of its employees ([D.E. 1-3] (Civ. Cover Sheet § VI) (providing “negligence, lack of training” as her cause of action); [D.E. 1-1] at 3 (alleging “Dollar General Corporation hires this type of lying criminal (violent and racist and aggressive) such as [Ms. Turner] and staff.”). Specifically, plaintiff alleges that that defendant was negligent in training its employees in that “said Dollar General store . . . assum[ed] wrongly . . . that Hispanic older disabled females such as [plaintiff] would be stealing and shoplifting.” [D.E. 10] at 12.
For the avoidance of doubt, the undersigned does not discern any negligence claims in plaintiff's complaint [D.E. 11; 1-2; 10] beyond those discussed herein.
While “failure to train” is generally discussed in the context of 42 U.S.C. § 1983 claims, cf. Osborne by & through Powell v. Yadkin Valley Econ. Dev. Dist., Inc., 865 S.E.2d 307, 317 (N.C. Ct. App. 2021), which are not at issue here, North Carolina courts have routinely allowed negligent training claims. See Floyd v. McGill, 575 S.E.2d 789, 794 (N.C. Ct. App. 2003); Brooks v. BCF Piping, Inc., 426 S.E.2d 282, 287 ( N.C. Ct. App. 1993).
To state a claim for negligent training in North Carolina, a plaintiff must establish:
(1) the specific negligent act on which the claim is founded; (2) incompetence, by inherent unfitness or previous specific acts of negligence from which incompetency may be inferred; (3) either actual notice to the master of such unfitness or bad habits, or constructive notice, by showing that the master could have known the facts had he used ordinary care in oversight or supervision; and (4) that the injury complained of resulted from the incompetency proved.Sauers v. Winston-Salem/Forsyth Cnty. Bd. of Educ., 179 F.Supp.3d 544, 556 (M.D. N.C. 2016).
Similarly, “[i]n North Carolina, a negligent hiring claim requires actual or constructive notice of the employee's “unfitness or bad habits.” Massenburg v. Innovative Talent Sols., Inc., No. 5:16-CV-957-D, 2019 WL 441172, at *4 (E.D. N.C. Feb. 4, 2019), affd, 779 Fed.Appx. 174 (4th Cir. 2019) (quoting Medlin v. Bass, 327 N.C. 587, 590-91, 398 S.E.2d 460, 462 (1990)).
A “plaintiff's burden in proving these cases is a high one, and “only cases involving notoriously unsuitable employees or allegations of misconduct repeatedly ignored by an employer have met these elements.” Id.
Plaintiff's conclusory claims of negligent hiring ([D.E. 1-1] at 3) and of negligent training ([D.E. 10] at 12), discussed above, appear to rest on the argument that because defendant's employees allegedly committed improper actions, defendant must have been negligent in hiring and training them. However, such arguments miss a key element of negligent hiring or negligent training claims. Plaintiff did not allege any facts indicating that Dollar General Corporation had “actual notice . . . or constructive notice” of Ms. Turner's or other staff's alleged “unfitness or bad habits.” See Sauers, 179 F.Supp.3d at 556; see also Davis v Matroo, No. 5:13-CV-00233-BO, 2013 WL 5309662, at *5 (E.D. N.C. Sept. 19, 2013) (“[P]laintiff has not pled a single fact that suggests the City knew of a need to implement any particular policy, incompetence of any of the defendants, or notice thereof.”). Accordingly, plaintiff failed to state a claim for negligent hiring and training, and the undersigned RECOMMENDS that plaintiff's claims for negligent hiring and training be DISMISSED.
b. Conversion
In her amended complaint, plaintiff alleges that Ms. Turner “took each and every one of the toys and items” that plaintiff was attempting to return and “destroyed or attempted to destroy” them. [D.E. 10] at 3-4. Under North Carolina law, the tort of conversion is defined as “an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights.” Peed v. Burleson's, Inc., 94 S.E.2d 351, 353 (N.C. 1956) (citing 89 C.J.S., Trover & Conversion, s 1). A viable conversion claim consists of two elements: “ownership in the plaintiff and wrongful possession or conversion by the defendant.” Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, 723 S.E.2d 744, 747 ( N.C. 2012). Viewing plaintiff's allegations in the light most favorable to the plaintiff, see Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005), plaintiff has alleged facts sufficient to survive a frivolity review that she owned the items she was returning and that Ms. Turner destroyed such items. See [D.E. 1-1] at 2. Accordingly, the undersigned RECOMMENDS that plaintiff's state law claim for conversion be allowed to PROCEED.
c. Assault and battery
Plaintiff claims that Dollar General Corporation is liable for the alleged assault and battery committed by Ms. Turner. Under North Carolina law, “[a]n assault is an offer to show violence to another without striking [her], and a battery is the carrying of the threat into effect by the infliction of a blow.” Dickens v. Puryear, 276 S.E.2d 325, 330 (N.C. 1981). Here, Ms. Turner allegedly yelled, “you won't get away with these things” and “violently” grabbed, hit, and shook plaintiff. [D.E. 1-1] at 2. While store merchants are entitled to temporally detain suspected shoplifters, there are limits on what merchants may do to customers as a part of such a detention. See N.C. G.S. § 14-72.1(c) (“[A] merchant, or the merchant's agent or employee, . . . who detains or causes the arrest of any person shall not be held civilly liable for detention, malicious prosecution, false imprisonment, or false arrest of the person detained or arrested, where such detention . . . is in a reasonable manner for a reasonable length of time, and, if in detaining or in causing the arrest of such person, the merchant, or the merchant's agent or employee, . . . had at the time of the detention or arrest probable cause to believe that the person committed the offense [of concealment of merchandise].”) (emphasis added); see also Burwell v. Giant Genie Corp., 446 S.E.2d 126, 129 (N.C. Ct. App. 1994) (“We do not read [ N.C. ]G.S. 14-72.1(c) as giving . . . merchants the right to conduct ‘pat down' searches of customers without their consent.”). Moreover, while assault and battery may be connected to a detention in some instances, the legality of any assault by a merchant on a suspected shoplifter is a question of reasonableness for the jury. See Redding v. Shelton's Harley Davidson, Inc., 534 S.E.2d 656, 658 (N.C. Ct. App. 2000), writ denied, review denied, 546 S.E.2d 606 (N.C. 2001). (“If probable cause was lacking or the detention was not reasonable, G.S. § 14-72.1(c) would not apply and defendants would be liable for assault and battery.”).
Accordingly, the undersigned RECOMMENDS that plaintiff's claim of assault and battery be allowed to PROCEED.
d. Malicious prosecution and obstruction of justice
Plaintiff alleges that she is being unfairly prosecuted for the events that took place at the Dollar General store, and specifically provides that the district attorneys are “maliciously persecuting me . . . [with] false charges and allegations.” [D.E. 10] at 7. Additionally, the undersigned construes plaintiff's claim of “making false report to police” [D.E. 1-3] as an attempt to allege either a malicious prosecution or an obstruction of justice.
“It is frequently said that the action of malicious prosecution is not favored in law since public policy favors the exposure of crime which a recovery against a prosecutor tends to discourage.” Charles Stores Co. v. O'Quinn, 178 F.2d 372, 375 (4th Cir. 1949). To establish a claim for malicious prosecution, a plaintiff must show four elements: “(1) the defendant initiated the earlier proceeding; (2) malice on the part of the defendant in doing so; (3) lack of probable cause for the initiation of the earlier proceeding; and (4) termination of the earlier proceeding in favor of the plaintiff.” Adams v. City of Raleigh, 782 S.E.2d 108, 112-13 (N.C. Ct. App. 2016).
As an initial matter, the undersigned RECOMMENDS that any claims for malicious prosecution that plaintiff may be attempting to assert against a district attorney, assistant district attorneys, or other attorneys be DISMISSED. These individuals are not named as defendants in this case. However, even if named as defendants, any such claims would fail for the reasons discussed below.
Plaintiff alleges that in exchange for certain information provided by plaintiff, “Mr. Goyette said that he was going to drop the charges against [plaintiff] in district court, and consequently in Superior Court.” See [D.E. 10] at 7. Charges being dismissed against a criminal defendant does not necessarily permit a malicious prosecution claim as a result. See Welch v. Cheek, 34 S.E. 531, 532 ( N.C. 1899) (“Where a nol. pros. is entered by the procurement of the party prosecuted, or by his consent or by compromise, such party cannot have an action for malicious prosecution.”) (quotations and citations omitted); see also, Tucker v. Duncan, 499 F.2d 963, 965 (4th Cir. 1974) (“Since the record also indicates, however, without contradiction, that the charges against Tucker were dismissed by way of nol-pros obtained by his attorney, the issue of malicious prosecution should not have been given to the jury to decide.”) (quoting Welch, 34 S.E. at 532); but see Beatenhead v. Lincoln Cnty., 588 S.E.2d 86 (N.C. Ct. App. 2003) (maintaining an action for malicious prosecution after the charges against the plaintiff were dropped).
Here, however, plaintiff's allegations represent, at best, the potential for a favorable resolution of her proceedings in the future, not a claim that her proceedings have actually been terminated in her favor. Additionally, to the extent that plaintiff's criminal proceedings are still ongoing, this court does not have subject matter jurisdiction to intervene in such ongoing criminal proceedings under the doctrine established in Younger v. Harris. 401 U.S. 37 (1971) (establishing the principle that federal courts should not intervene in ongoing state court proceedings).
Accordingly, the undersigned RECOMMENDS that plaintiff's malicious prosecution claims be DISMISSED as frivolous.
A claim for common law obstruction of justice arises “when the defendant has improperly obstructed, impeded, or hindered a plaintiff's ability to seek and obtain a legal remedy” in the course of a civil suit. Braswell v. Medina, 805 S.E.2d 498, 510 (N.C. Ct. App. 2017) (citations and internal quotation marks omitted). Here, plaintiff appears to find fault in matters surrounding a criminal prosecution, not a civil matter. See Clark v. Britt, 1:18CV493, 2021 WL 681239, at *13 (M.D. N.C. Feb. 22, 2021), mem. & recomm. adopted, 1:18-CV-493, 2021 WL 2181882 (M.D. N.C. May 13, 2021), aff'd, No. 21-6832, 2021 WL 5985557 (4th Cir. Dec. 17, 2021) (noting that while North Carolina does allow a civil action based on obstruction of justice “it does not apply to conduct that a defendant engages in during the course of a criminal investigation . . . but instead covers conduct obstructing civil claims.”).
Plaintiff's conclusory allegations that “Dollar General Corporation also apparently obstructed justice with their strong arm connections because judges and [district attorney] Matt Delbridge did not want to take my charges against assailant Turner because she's American” ([D.E. 1-1] at 4) focuses on judges and district attorneys, not the conduct of defendant or defendant's employees and therefore fails to state a claim upon which relief can be granted. Regardless of the focus, these are conclusory statements that lack supporting facts. See Holder v. U.S. Marshals Office, No. 5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D. N.C. 17 May 2016) (“[T]he principles requiring generous construction of pro se complaints are not without limits.”), mem. & recomm. adopted, 2016 WL 3920213 (July 15, 2016).
Accordingly, the undersigned finds that plaintiff has failed to state a claim of obstruction of justice and RECOMMENDS that any such claim be DISMISSED.
e. Defamation and slander
The undersigned construes plaintiff's claim of “defamation” [D.E. 1-3] to be based on plaintiff's allegations that she was “falsely accused of shoplifting and assaulting [Ms.] Turner.” [D.E. 1-1] at 4. North Carolina recognizes spoken defamation as slander, which it defines as “the speaking of base or defamatory words which tend to prejudice another in his reputation, office, trade, business, or means of livelihood.” Beane v. Weiman Co., 168 S.E.2d 236, 237 (N.C. Ct. App. 1969) (internal quotations omitted) (quoting 33 Am.Jur., Libel and Slander, s 3, p. 39. 53 C.J.S. Libel and Slander s 1, p. 33). “Slander. . . may be actionable Per se or only Per quod. That is, the false remarks in themselves (per se) may form the basis of an action for damages, in which case both malice and damage are, as a matter of law, presumed.” Id.
The North Carolina Supreme Court has held that:
To establish a claim for slander per se, a plaintiff must prove: (1) defendant spoke base or defamatory words which tended to prejudice him in his reputation, office, trade, business or means of livelihood or hold him up to disgrace, ridicule or contempt; (2) the statement was false; and (3) the statement was published or communicated to and understood by a third person.West v. King's Dept. Store, Inc., 365 S.E. 621, 624 (N.C. 1988).
Accusing someone of a crime involving moral turpitude is actionable as slander per se. Beane, 168 S.E.2d at 237. Accusations of simple assault ([D.E. 1-1] at 4; [D.E. 10] at 4) are not actionable as slander per se, because simple assault is not a crime of moral turpitude in North Carolina. See Richardson v. Mancil, 706 S.E.2d 843 at *6 (N.C. Ct. App. 2010) (“[W]e determine that the crime of simple assault, in and of itself, still does not rise to the level of an infamous crime or a crime involving moral turpitude.”). Additionally, for an accusation to be “actionable . . . Per quod, the injurious character of the words and some special damage must be pleaded and proved.” Beane, 168 S.E.2d at 237-238. (“Where the injurious character of the words do not appear on their face as a matter of general acceptance, but only in consequence of extrinsic, explanatory facts showing their injurious effect, such utterance is actionable only Per quod.”). Here, plaintiff has failed to plead any such injurious character of the relevant words or special damage resulting from Ms. Turner accusing her of simple assault, and any slander per quod claims with respect to such allegations must therefore fail. Accordingly, the undersigned RECOMMENDS that plaintiff's slander claim for accusations of simple assault be DISMISSED.
An accusation of theft or shoplifting qualifies as an accusation of a crime involving moral turpitude in North Carolina. See Shillington v. K-Mart Corp., 402 S.E.2d 155, 159 (N.C. Ct. App. 1991); see also Ramos v Smithfield Packing Co., Inc., No. 7:05-CV-188-BR, 2007 WL 9718795, at *6 (E.D. N.C. Jan. 5, 2007) (“A review of North Carolina case law reveals that this category of defamation includes such allegations as: . . . shoplifting”). Here, plaintiff's allegation that Ms. Turner falsely accused plaintiff of shoplifting in the presence of other people ([D.E. 10] at 3) is sufficient for purposes of this frivolity review to state a claim for slander per se. Accordingly, the undersigned RECOMMENDS that plaintiff's allegation of slander with respect to shoplifting be allowed to PROCEED.
f. Intentional infliction of emotional distress
Plaintiff's Civil Cover Sheet [D.E. 1-3] lists “Intentional Infliction of Emotional Distress” as a cause of action. Civ. Cover Sheet [D.E. 1-3] (§ VI. Cause of Action). The undersigned construes this claim relating to the events alleged at a courthouse on September 22, 2022. [D.E. 1-1] at 3. Specifically, plaintiff alleges that “[w]hen [she] was on the floor throwing up . . . [Ms.] Turner was [laughing] kind of silently and in cruelty [sic] . . . with [an] evil smile ....[A]ssistant [District Attorney] Carrere . . . and court appointed lawyer Sean P. Keenan were laughing at my pain, suffering and disabilities both acted in a cruel and unusual manner.” Id.
Under North Carolina law, “[t]he essential elements of an action for intentional infliction of emotional distress are 1) extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause 3) severe emotional distress.” Waddle v. Sparks, 414 S.E.2d 22, 27 (N.C. 1992) (internal quotations omitted) (quoting Dickens, 276 S.E.2d at 335. “Extreme and outrageous conduct is defined as conduct that is ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'” Clark v. Clark, 867 S.E.2d 704, 715 (N.C. Ct. App. 2021) (quoting Norton v. Scotland Mem'l Hosp., Inc., 793 S.E.2d 703, 708 (N.C. Ct. App. 2016). As this court has previously noted:
[E]ven rude or contemptible[ conduct] does not rise to the level that North Carolina courts have required in order to impose liability for intentional infliction of emotional distress. For example, the North Carolina Court of Appeals did not find conduct to be extreme and outrageous when a defendant yelled and threw menus at a plaintiff and interfered with her supervision of employees. Nor did it find extreme and outrageous conduct where an employee caused embezzlement charges to be filed against his employer and relayed negative and accusatory comments to the employer's creditors and potential clients.Payne v. Whole Foods Mkt. Grp., Inc., 812 F.Supp.2d 705, 709-10 (E.D. N.C. 2011) (internal citations omitted), aff'd 471 Fed. App'x 186 (4th Cir. 2012).
“[T]he initial determination of whether conduct is extreme and outrageous is a question of law for the court.” Johnson v. Bollinger, 356 S.E.2d 378, 381 (N.C. Ct. App. 1987).
Here, the alleged conduct was “definitely inconsiderate and unkind[, but t]here is no occasion for the law to intervene in every case where someone's feelings are hurt.” Johnson, 356 S.E.2d at 382 (quoting Briggs v Rosenthal, 327 S.E. 308, 311 (N.C. Ct. App. 1985)). Accordingly, the undersigned does not find that allegations that defendant's employees were laughing at plaintiff's sickness and suffering is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Clark, 867 S.E.2d at 715; see also Glenn v. Johnson, 787 S.E.2d 65, 72-73 (N.C. Ct. App. 2016) (“The conduct by defendants alleged to be extreme and outrageous includes . . . ignoring, refusing, or laughing at efforts by plaintiff for reconciliation or mediation....as a matter of law, plaintiff has failed to allege or present evidence that defendants' conduct in this case rose to the level of extreme and outrageous.”).
Plaintiff fails to satisfy the first element of an intentional infliction of emotional claim. Further, plaintiff failed to allege any facts indicating that defendant's employees intended to cause plaintiff severe emotional distress and plaintiff thereby fails to satisfy the second element of an intentional infliction of emotional claim. Accordingly, it is RECOMMENDED that plaintiff's claim of intentional infliction of emotional distress be DISMISSED.
Although plaintiff does not appear to allege a standalone negligent infliction of emotional distress (“NIED”) claim arising out of the events alleged on September 22, 2022, such a claim would also fail. As an initial matter, plaintiff did not plead (see generally [D.Es. 1-1; 10]) sufficient facts to demonstrate that “the defendant breached a duty of care owed to the plaintiff” for events that took place at a courthouse, which was away from any premises owned or operated by the defendant. Foster v. Crandell, 638 S.E.2d 526, 537 (N.C. Ct. App. 2007). Further, the plaintiff does not appear to allege any negligent act by the defendant's employees that would constitute a breach of any putative duty of care. “Allegations of intentional conduct, . . . even when construed liberally on a motion to dismiss, cannot satisfy the negligence element of an NIED claim.” Horne v. Cumberland Cnty. Hosp. Sys., Inc., 746 S.E.2d 13, 19 (N.C. Ct. App. 2013).
3. Any additional claims
To the extent that plaintiff was attempting to assert any additional claims in her complaint [D.E. 1-1; 1-2; 1-3; 10] beyond those discussed herein, the undersigned did not discern any further cognizable legal claims. Additionally, plaintiff was provided opportunity to clarify and particularize her complaint [D.E. 7], which plaintiff exercised by filing her amended complaint [D.E. 10]. While pro se litigants are entitled to leniency, such leniency is not without bounds. See Holder v. U.S. Marshals Office, No. 5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D. N.C. 17 May 2016) (“[T]he principles requiring generous construction of pro se complaints are not without limits.”), mem. & recomm. adopted, 2016 WL 3920213 (July 15, 2016).
Accordingly, the undersigned RECOMMENDS that any claims beyond those discussed above be DISMISSED for (i) deficient pleading under Rule 8 and (ii) failure to state a claim upon which relief can be granted under Rule 12(b)(6).
IV. DEFENDANT'S MOTION TO DISMISS
Defendant alleges that plaintiff's complaint should be dismissed because (1) “this Court lacks both specific and general personal jurisdiction over Dollar General Corporation”; (2) plaintiff has provided “insufficient service of process”; (3) plaintiff's “failure to state a claim upon which relief may be granted”; and (4) “plaintiff failed to comply with this court's June 28, 2023 order.” [D.E. 14] at 7-10. For the reasons discussed below, the undersigned RECOMMENDS that defendant's motion to dismiss based on plaintiff's failure to comply with this court's June 28, 2023 order be DENIED; and defendant's motion to dismiss for all other reasons be DENIED AS MOOT WITHOUT PREJUDICE.
A. Rule 12(b)(2) - Lack of personal jurisdiction
“When a defendant moves to dismiss for lack of personal jurisdiction [pursuant to 12(b)(2)], the plaintiff ultimately bears the burden of proving to the district court judge the existence of jurisdiction over the defendant by a preponderance of the evidence.” New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005) (citations omitted). “But when, as here, the court addresses the question on the basis only of motion papers, supporting legal memoranda and the relevant allegations of a complaint, the burden on the plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis in order to survive the jurisdictional challenge.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). In considering a challenge on such a record, the court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction.
“This court may exercise personal jurisdiction over a non-resident defendant only in the manner provided for by North Carolina law and only to the extent personal jurisdiction is consistent with constitutional due process.” Szulik v. TAG Virgin Islands, Inc., 783 F.Supp.2d 792, 795-96 (E.D. N.C. 2011) (citations omitted). When, as here, the forum state's “long-arm statute is construed to extend jurisdiction over nonresident defendants to the full extent permitted by the Due Process Clause,” this court must consider “whether the defendant has such ‘minimal contacts' with the forum state that ‘maintenance of the suit does not offend traditional notions of fair play and substantial justice.'” Christian Sci. Bd. of Directors of First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “This ‘minimum contacts' test is premised on the concept that a corporation that enjoys the privilege of conducting business within a state bears the reciprocal obligation of answering to legal proceedings there.” CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 293 (4th Cir. 2009).
Personal jurisdiction may be either general or specific. Szulik v., 783 F.Supp.2d at 796. “General personal jurisdiction, on the one hand, requires ‘continuous and systematic' contacts with the forum state, such that a defendant may be sued in that state for any reason, regardless of where the relevant conduct occurred.” CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 292 n. 15 (4th Cir. 2009) (quoting Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 438 (1952)). “Specific personal jurisdiction, on the other hand, requires only that the relevant conduct have such a connection with the forum state that it is fair for the defendant to defend itself in that state.” Id. (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984)).
Here, defendant states, in relevant part, that:
3. Dollar General Corporation does not own, manage, or operate the property that is the subject of Plaintiff's Complaint[;]
4. Dollar General Corporation does not own, manage, or operate any property in the State of North Carolina[;] . . .
6. Dollar General Corporation does not employ any individuals in the State of North Carolina[; and]
7. Dollar General Corporation is not registered to do business in the State of North Carolina.[D.E. 13] at 1; see also Affidavit of Calvin Billingsley, Claims Manager at Dollar General Corporation [D.E. 14-1].
The undersigned takes judicial notice of Dollar General Corporation's publicly filed Form 10-K annual reports. See also In re Mun. Mortg. & Equity, LLC, Sec. & Derivative Litig., 876 F.Supp.2d 616, 626 n 7(D. Md. 2012), aff'd sub nom. Yates v. Mun. Mortg. & Equity, LLC, 744 F.3d 874 (4th Cir. 2014) (“Judicial notice is appropriate of the content of S.E.C. filings, to the extent that this establishes that the statements therein were made, and the fact that these documents were filed with the agency.”); Chapman v. Fennec Pharms. Inc., No. 1:20CV812, 2021 WL 7209981, at *4 (M.D. N.C. Dec. 16, 2021), mem. & recomm. adopted, No. 1:20CV812, 2022 WL 613378 (M.D. N.C. Mar. 2, 2022) (taking judicial notice of FY 2017 Form 10-K excerpts). The undersigned notes that according to defendant's annual report for the fiscal years ended February 3, 2023, and February 2, 2024, Dollar General Corporation reported that “we” operated over 1000 retail stores in the state of North Carolina. See Dollar General Corporation Form 10-K for the fiscal year ended February 3, 2023, https://perma.cc/R9FF-RFLU (last visited June 4, 2024) (noting that “[a]s of March 3, 2023, we operated 19,147 retail stores, including those located in 47 U.S. states[, including 1,035 stores in North Carolina]”); Dollar General Corporation Form 10-K for the fiscal year ended February 2, 2024, https://perma.cc/2B26-6DSZ (last visited June 4, 2024) (noting that “[a]s of March 1, 2024, we operated 20,022 retail stores, including those located in 48 U.S. states[, including 1,076 stores in North Carolina]”).
However, the undersigned additionally notes that based on a preliminary review of the website of the Secretary of State of North Carolina, the only entity doing business under the name of “Dollar General” appears to be “Dolgencorp, LLC,” with no entry for a “Dollar General Corporation.” See North Carolina Secretary of State - Assumed Business Name, https://perma.cc/BY2W-BJ3B (last visited June 4, 2024).
Plaintiff did not respond to defendant's motion to dismiss and provides no evidence or legal argument to contradict Dollar General Corporation's position that it is not registered to do business in North Carolina and that it does not operate any properties in North Carolina, including the store that is the subject of plaintiff's complaint. Plaintiff's failure to contest Dollar General Corporation's position could subject her complaint to dismissal. See Davis v. Dollar Gen. Corp., LLC, No. 3:20-CV-274-KHJ-LGI, 2021 WL 3645107, at *3 (S.D.Miss. July 23, 2021), aff'd sub nom. Davis v. Dollar Gen. Corp., L.L.C., No. 21-60640, 2022 WL 989468 (5th Cir. Apr. 1, 2022) (finding grounds to dismiss plaintiff's complaint where she “offers no evidence” to contest that “Dollar General Corporation does not own, operate, or control any Dollar General stores”).
However, the undersigned finds that Dollar General Corporation's statements in its publicly filed annual reports and the fact that an affiliated entity appears to be doing business under the name of “Dollar General” in North Carolina could easily confuse a pro se plaintiff as to the correct legal entity to sue with respect to claims arising from events at Dollar General stores in North Carolina. See Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 556 (2010) (“noting that Costa Cruise and Costa Crociere are related corporate entities with very similar names; . . . [and t]his interrelationship and similarity heighten the expectation that Costa Crociere should suspect a mistake has been made when Costa Cruise is named in a complaint that actually describes Costa Crociere's activities.”). The Fourth Circuit has noted, that pro se litigants have an “untutored hand requiring special judicial solicitude” and that pro se litigants “should not be tripped up in court on technical niceties.” Beaudett v. City of Hampton, 775 F.2d 1274, 1277-78 (4th Cir. 1985). See also Coon v. Rex Hosp., Inc., No. 5:20-CV-00652-M, 2021 WL 3620282, at *4 (E.D. N.C. Aug. 16, 2021) (granting plaintiff leave to file an amended complaint alleging the specifics of how she complied with Title VII and the ADA's administrative requirements). “[A] party may amend its pleading . . . with . . . the court's leave,” and “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2).
Accordingly, it is RECOMMENDED that plaintiff be granted leave to file an amended complaint, as provided below, for only the limited purpose of (i) providing the factual and statutory basis for Dollar General Corporation being the proper defendant with respect to the claims that have been allowed to proceed, as discussed above, and/or (ii) amending her complaint to bring suit against a different, proper defendant(s) with respect to the claims that have been allowed to proceed, as discussed above. It is, therefore, additionally RECOMMENDED that defendant's motion to dismiss under 12(b)(2) be DENIED AS MOOT WITHOUT PREJUDICE.
B. Rule 12(b)(5) - Insufficient service of process
Defendant notes that “[t]o date, Dollar General Corporation has not been served with a copy of the Complaint, Amended Complaint, or a Civil Summons in this matter.” [D.E. 14] at 8. The court notes that generally the court will order the United States Marshals Service to serve each defendant once a pro se plaintiff's complaint survives the court's frivolity review. See United States District Court - Eastern District of North Carolina, Representing Yourself in a Civil Case: A Guide for the Pro Se Litigant 11-12 (December 2023), https://perma.cc/86V2-MP78. As plaintiff's complaint [D.E. 1-1; 1-2; 1-3; 10] is subject to the instant frivolity review, defendant's Rule 12(b)(5) motion is premature. Accordingly, the undersigned RECOMMENDS that defendant's motion to dismiss based on Rule 12(b)(5) be DENIED AS MOOT WITHOUT PREJUDICE.
C. Rule 12(b)(6) - Failure to state a claim upon which relief can be granted
As the undersigned has recommended that certain of plaintiff's claims be DISMISSED, and in light of the undersigned's recommendation that plaintiff be granted leave to amend her complaint for only the limited purpose of (i) providing the factual and statutory basis for Dollar General Corporation being the proper defendant with respect to the claims that have been allowed to proceed, as discussed above, and/or (ii) amending her complaint to bring suit against a different, proper defendant(s) with respect to the claims that have been allowed to proceed, as discussed above, the undersigned finds that a some or all of the issues raised in Dollar General Corporation's motion to dismiss under Rule 12(b)(6) may be moot. Accordingly, the undersigned RECOMMENDS that defendant's motion to dismiss under Rule 12(b)(6) be DENIED AS MOOT WITHOUT PREJUDICE.
D. Plaintiff's compliance with this court's June 28, 2023 order
In its order dated June 28, 2023, the undersigned noted that “[f]ailure by plaintiff to file an amended complaint by [the relevant date], may result in a recommendation by the undersigned to the presiding district judge that this case be dismissed in whole or in part.” [D.E. 7] at 5.
This court must consider four factors before dismissing a case for violation of a court order: “(1) the plaintiff's degree of personal responsibility; (2) the amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal.” Hillig v. C.I.R., 916 F.2d 171, 174 (4th Cir. 1990). While plaintiff is ultimately responsible for her pleadings, the undersigned notes that filings of pro se plaintiffs are held to “less stringent standards” than those drafted by attorneys. White, 886 F.2d at 722-23. The undersigned notes that plaintiff complied with the court's instructions to file an amended complaint and timely filed a motion for extension [D.E. 8] during this process. The undersigned finds that any prejudice caused to the defendant is mitigated by the undersigned recommending the dismissal of frivolous claims and clearly enumerating the claims that may proceed. The undersigned notes that plaintiff has timely responded to this court's orders and additionally the undersigned does not find that one motion for extension represents a “drawn out history of deliberately proceeding in a dilatory fashion.” See Hillig, 916 F.2d at 174. Finally, the undersigned has recommended that numerous claims in plaintiff's complaint, as amended, be dismissed for the reasons discussed above, which would make the complete dismissal of plaintiff's complaint neither necessary nor warranted. See Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (noting that “dismissal is not a sanction to be invoked lightly”) (citing Davis v. Williams, 588 F.2d 69, 70) (4th Cir. 1978)).
Accordingly, the undersigned RECOMMENDS that defendant's motion to dismiss based on plaintiff's failure to comply with this court's June 28, 2023 order be DENIED.
V. CONCLUSION
For the reasons stated above, it is RECOMMENDED that the court enter an order providing as follows:
1. Plaintiff's claims in her complaint [D.E. 1-1; 1-2; 1-3; 10] are allowed to proceed in part and are dismissed in part as set forth herein. The following claims under 42 U.S.C. § 1981 and state law may PROCEED:
a. discrimination based on race and national origin under 42 U.S.C. § 1981;
b. conversion under state law;
c. assault and battery under state law; and
d. slander under state law with respect to accusations of shoplifting.
2. All of plaintiff's remaining claims are DISMISSED.
3. Plaintiff is granted leave to file and is DIRECTED file an amended complaint (and provide additional summonses, as necessary), for the limited purpose of:
a. providing the factual and statutory basis for Dollar General Corporation being the proper defendant with respect to the claims that have been allowed to proceed; and/or
b. amending her complaint to bring suit against a different, proper defendant(s) with respect to the claims that have been allowed to proceed.
4. Plaintiff shall have 14 days from the date of entry of the court's order in which to file an amended complaint.
5. If plaintiff fails to file an amended complaint within 14 days from the date of entry of the court's order, the clerk of court is ordered to DISMISS plaintiff's complaint [D.E. 1-1] and amended complaint [D.E. 10] WITH PREJUDICE.
6. Defendant's motion to dismiss [D.E. 13] based upon its arguments under Rule 12(b)(2), (5), and (6) are DENIED AS MOOT WITHOUT PREJUDICE.
7. Defendant's motion to dismiss [D.E. 13] based upon its arguments that plaintiff failed to comply with this court's June 28, 2023 order is DENIED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the respective parties or, if represented, their counsel. Each party shall have until June 26, 2024, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Re by the foregoing deadline, the party will be giving up the right to review of the and Recommendation by the presiding district judge as described above, an district judge may enter an order or judgment based on the Mem Recommendation without such review. In addition, the party's failure objections by the foregoing deadline will bar the party from appealing t Appeals from an order or judgment of the presiding district judge Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 81985).