Bowden v. Agnew, 1:12CV1237

JOEL G. BOWDEN, Plaintiff,

v.E. JEROME AGNEW, Defendant.

1:12CV1237

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

July 11, 2013

ORDER. MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Plaintiff's motion to amend his Complaint (Docket Entry 11) filed by Plaintiff Joel Bowden ("Plaintiff"). Additionally, before the Court is Defendant's motion to dismiss for improper venue (Docket Entry 5) and Defendant's second motion to dismiss for failure to state a claim (Docket Entry 16). For the reasons stated below, the Court grants Plaintiff's motion to amend his Complaint (Docket Entry 11). Furthermore, the Court recommends that Defendant's motion to dismiss for failure to state a claim (Docket Entry 16) be granted in part and denied in part, and Defendant's motion to dismiss for improper venue (Docket Entry 5) be dismissed as moot.

I. BACKGROUND

Plaintiff filed this diversity action against Defendant based upon alleged violations of North Carolina common law, specifically asserting claims of alienation of affection, criminal conversation, and intentional infliction of emotional distress. (See generally, Compl., Docket Entry 2.) Plaintiff is married to Ruby Golden Bowden. Id. at ¶ 3. Plaintiff states that he and Mrs. Bowden enjoyed a loving marital relationship. Id. at ¶ 5. The Complaint alleges thatDefendant interfered with the loving marital relationship by accompanying Plaintiff's wife to various places, engaging in a romantic relationship with her, and having sexual intercourse with Mrs. Bowden. Id. at ¶¶ 5-12. Plaintiff further alleges that Defendant was aware of Plaintiff's marriage to Mrs. Bowden, he intentionally had sexual intercourse with her, and that Plaintiff has suffered humiliation and emotional distress from the loss of his spouse's affection. Id. at ¶¶ 19-24. Moreover, Plaintiff alleges that Defendant's willful and purposeful actions to seduce Plaintiff's spouse adversely affected the marital relationship. Id. at ¶ 31.

Defendant filed a motion to dismiss for improper venue on November 20, 2012. (Docket Entry 5.) Defendant asserts that venue is not proper in the Middle District of North Carolina since he is not a resident of the state and the Complaint did not allege that a substantial part of the underlying events occurred in the Middle District. (Def.'s Mem. in Supp. of Mot. to Dismiss, Docket Entry 6.) In addition to his response (Docket Entry 7) filed December 3, 2012, Plaintiff also filed a motion to amend his Complaint pursuant to Federal Rule of Civil Procedure 15(a) on April 8, 2013. (Docket Entry 11.) In Defendant's opposition to Plaintiff's motion (Docket Entry 15) and a subsequent motion to dismiss¹ (Docket Entry 16), Defendant argues that Plaintiff's amended Complaint is barred by resjudicata, two of the claims are outside the statute of limitations, the Complaint fails to meet the plausibility requirements, and it fails to state a claim for which relief can be granted.

II. DISCUSSION

Rule 15(a) of the Federal Rules of Civil Procedure provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). It further states that "[t]he court should freely give leave when justice so requires." Id. Granting a motion to amend a complaint is within the discretion of the Court, "but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion." Foman v. Davis, 371 U.S. 178, 182 (1962). Unless the facts show "undue delay, bad faith or dilatory motive . . ., repeated failure to cure deficiencies by amendments previously allowed, undue prejudice . . . [or] futility of amendment," leave should be freely given. Id.

In this case, Plaintiff does not have written consent from Defendant to amend his Complaint. Plaintiff argues that Defendant is not prejudiced as no discovery has been conducted, there is no trial date set, and an initial pre-trial conference has not taken place. (Pl.'s Mot. to Amend. Compl. ¶ 12, Docket Entry 11.) Furthermore, Plaintiff asserts that the motion to amend is not futile, and seeks to clarify what Defendant argues in his motion to dismiss that the alleged actions took place in the district where Plaintiff resides. Id. at ¶¶ 5-8. Defendant argues that the amendment would be futile, and should be dismissed because it is barred under the doctrine of res judicata, it fails to meet the plausibility requirements set out in Twombly, the alleged events were outside of the statute of limitations, and it fails to state aclaim upon which relief can be granted. (Def.'s Resp. Br., Docket Entry 15; Twombly, 550 U.S. at 570.)

Here, the Court finds that Defendant is not prejudiced if the Court allows the amendment. Prior to Plaintiff's motion to amend, the only action to have taken place in this case was Defendant's filing of a motion to dismiss (Docket Entry 5). A scheduling order has not been entered and discovery has not begun in this case. Nor is there any proof that Plaintiff acted in bad faith or with dilatory motive as Plaintiff's intent in seeking the amendment was to clarify where a substantial part of the underlying events took place. Lasdy, the Court considers futility of the amendment. "[A] proposed amendment that clearly is frivolous, advancing a claim or defense that is legally insufficient on its face, . . ., should be denied. If a proposed amendment is not clearly futile, then denial of leave to amend is improper." 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1487 (3d ed.) (footnote omitted.) An amended complaint is futile if it cannot withstand a motion to dismiss; thus, the Court may deny the motion. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995) (addition of negligence claim futile because case would not survive motion to dismiss).

Res Judicata

Defendant contends that the amended complaint is barred by the doctrine of res judicata. Under this doctrine, a party is precluded from bringing a subsequent cause of action if: (1) there was a prior final judgment on the merits; (2) the parties are identical, or privity exists; and (3) the claims in subsequent proceeding are based upon the same cause of action in the earlier proceeding. Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 397 (4th Cir.2006). The inquiry here is "whether the claim present in the new litigation 'arises out of the same transaction or series of transactions as the claim resolved by the prior judgment'." Pittston Co. v. United States, 199 F.3d 694, 704 (4th Cir. 1999) (quoting Harnett v. Billman, 800 F.2d 1308, 1313 (4th Cir. 1986)). This determination requires a case-by-case analysis as there is no "simple test" to determine if causes of action are identical. Id.

Defendant argues that a prior Indiana judgment² is a bar to the present action. (Def.'s Resp. Br., Docket Entry 15 at 4-5.) On October 13, 2009, Defendant and Golden-AGI, LLC filed suit against Plaintiff and others alleging breach of fiduciary duty and breach of contract, and Plaintiff counterclaimed against Defendant for fraud. (See Ex. A, Docket Entry 15-1.) A trial took place, and a judgment was entered in favor of Defendant. (Ex. B, Docket Entry 15-2). During the deposition of Mrs. Bowden, she testified that her relationship with Defendant had an adverse effect on the profitability of the business venture. (Ex. C, Docket Entry 15-3 at 4-5.) The Bowdens believed that the affair allegations were relevant to the Indiana action. Id. at 4. Although such allegations may have been relevant to the Indiana proceeding, res judicata is not applicable here because the claims in the current cause of action do not arise from the same transactions as the prior proceeding. Pittston, 199 F.3d at 705 (new claim must "arise out of same transaction or series of transactions" as prior claim) (citation omitted). The current case involves claims ofalienation of affection, criminal conversation, and intentional infliction of emotional distress. (See Am. Compl., Docket Entry 12.) The Indiana case was grounded in contractual and fiduciary duties surrounding corporate formalities. (See Ex. A, Docket Entry 15-2.) The cases are clearly unrelated.

Furthermore, Plaintiff contends that some of the illicit conduct between Plaintiff's wife and Defendant took place within three years of the commencement of the action, which was after the Indiana action was filed. (Pl.'s Reply Br., Docket Entry 19 at 5.) The Indiana action was filed on October 13, 2009. (Ex. A, Docket Entry 15-2 at 2.) Plaintiff alleges that the illicit conduct took place on or after October 25, 2009, within three years of the date this action was commenced. (Am. Compl. ¶¶ 8-9.) Thus, these events, at least in part, could not have been related to the events before the Indiana court.³ Therefore, res judicata is not applicable here.

Statute of Limitations

Defendant next argues that Plaintiff s claims of alienation of affection and criminal conversation are outside the statute of limitations. (Def.'s Resp. Br., Docket Entry 15 at 9-11.) Defendant argues that in the Indiana court, Plaintiff's wife testified in January 2010 that the Agnew/Bowden relationship ended "some time ago" and that the Indiana court found that the relationship ended in November 2007. (Def.'s Resp. Br., Docket Entry 15 at 10-11.) Defendant contends that this contradicts the boilerplate language Plaintiff included in the amended Complaint that the illicit relationship existed "within three years of thecommencement of this action." Id. Plaintiff argues that the amended Complaint is consistent with the pleading requirements and the law does not require him to plead the precise dates and times Defendant engaged in illicit conduct prior to discovery. (Pl.'s Reply Br., Docket Entry 19 at 6-7.)

A three-year statute of limitations applies to claims of alienation of affection and...