Frye v. Brunswick County Bd. of Educ.

612 F.Supp.2d 694

Robert FRYE, Kathy Frye, and Kylee Rose Frye, Plaintiffs, v. BRUNSWICK COUNTY BOARD OF EDUCATION and David Hamilton Arrowood, Defendants.

No. 7:08-CV-47-D.

United States District Court, E.D. North Carolina, Southern Division.

March 9, 2009.

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Robert Marion Tatum, Tatum Atkinson & Lively, PLLC, Raleigh, NC, for Plaintiffs.

Kathleen P. Tanner Kennedy, Tharrington Smith, LLP, Raleigh, NC, Mark A. Lewis, Ramos and Lewis, LLP, Shallotte, NC, for Defendants.

ORDER

JAMES C. DEVER III, District Judge.

Plaintiffs Robert Frye, Kathy Frye, and Kylee Rose Frye ("plaintiffs") sued defendants Brunswick County Board of Education ("Board") and David Hamilton Arrowood ("Arrowood") for damages arising from Arrowood's relationship with Kylee Frye while she was a high school senior in Brunswick County, North Carolina. The defendant Board filed a motion to dismiss all claims against the Board. As explained below, the court grants the Board's motion to dismiss. Plaintiffs' action against Arrowood is unaffected, and plaintiffs may continue to seek relief from Arrowood.

I.

Plaintiffs are Kylee Rose Frye ("Kylee") and Kylee's parents, Robert Frye ("Mr. Frye") and Kathy Frye ("Mrs. Frye") (collectively, "plaintiffs"). Compl. ¶ 10. Defendants are the Board and Arrowood. Arrowood is a former employee of the Board and a former math teacher at West Brunswick High School ("High School"). Id. ¶¶ 6-7, 11, 31, Kylee was a 17-year-old high school senior in Arrowood's math class during the 2005-06 school year. See id. ¶¶ 10-11, 16.

Plaintiffs allege that Arrowood engaged in an inappropriate relationship with Kylee from October 2005 through April 2006, culminating in his marriage proposal to Kylee. Id. ¶¶ 12-18. According to the complaint, Arrowood exchanged e-mails and other written correspondence with Kylee from November 2005 to April 2006, and gave her numerous gifts. Id. ¶¶ 14-15, Arrowood inappropriately touched Kylee on school campus in October 2005, and they engaged in various sexual acts from November 2005 through April 2006. Id. ¶¶ 12-13. Teachers at the High School witnessed acts of inappropriate contact between Arrowood and Kylee. Id. ¶ 17. The teachers then reported their concerns to. the High School's administration. See id. These reports prompted two assistant principals to visit Arrowood's classroom late in the afternoon on April 12, 2006, where they observed Arrowood and Kylee engaging in a sexual act. Id. ¶¶ 18-19. After the administration reported the incident to the Brunswick County Sheriffs Office, Board employees told the police that they "did not need to respond" and attempted "to disengage the police from a real investigation." Id. ¶¶ 19-20. James Jordan, principal of the High School, initially refused to provide witness statements to the Sheriffs Department and only complied after being threatened with arrest. Id. ¶¶ 8, 24-29. Superintendent Katie McGee directed Jordan not to provide the statements. Id. ¶ 24. A detective with the Brunswick County Sheriffs Office interviewed Arrowood, and he confessed to sexual contact with Kylee. Id. ¶ 23.

On April 13, 2006, Arrowood was charged with various offenses which were ultimately consolidated into five felonies. Id. ¶ 30. Arrowood retired from his teaching position. Id. ¶ 31, In February 2007, Arrowood pleaded guilty in North Carolina state court to five felony counts and was sentenced to ninety days in custody and five years probation. See id. ¶ 30. As part of his plea agreement, he agreed not to teach at any school. Id.

Plaintiffs bring claims against the Board and Arrowood for intentional and negligent infliction of emotional distress (claims I and II), against the Board for negligent supervision and retention (claim III), against the Board and Arrowood for assault and battery (claim IV), against the Board for violation of Kylee's right to an education under the North Carolina Constitution (claim V), against the Board for breach of contract (claim VI), and against the Board for violations of plaintiffs' right to equal protection and substantive due process under the North Carolina and United States Constitutions (claim VII). Plaintiffs seek compensatory and punitive damages.

The Board is enrolled in a risk-management program provided by the North Carolina School Board's Trust ("NCSBT"). Id. ¶ 94; see Def. Bd.'s Mot. to Dismiss, Ex. A [hereinafter "Dunlap Aff."], Ex. A [hereinafter "Agreement"]. The Agreement provides that NCSBT will pay for certain claims made against the Board, its members, and its employees. Compl. ¶ 94. Plaintiffs did not name NCSBT as a defendant in this action.

The Board filed a motion to dismiss plaintiffs' claims pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure. Def. Bd.'s Mot. to Dismiss [D.E. 7]. The Board argues that (1) plaintiffs' North Carolina tort claims are barred by governmental immunity; (2) plaintiffs' North Carolina constitutional claims are barred by the presence of an adequate state remedy and fail to state a claim upon which relief may be granted; (3) plaintiffs' North Carolina tort claims fail to state a claim upon which relief may be granted; (4) plaintiffs' North Carolina contract claim fails to allege sufficient facts to rise to the level of a breach or to show that plaintiffs were intended third-party beneficiaries; (5) plaintiffs' equal protection and due process claims under the United States and North Carolina Constitutions fail "to allege that [plaintiffs] have been treated arbitrarily with respect to similarly situated tort claimants, that they have the right to recover any damages against defendant Board, or that there has been any act so egregious so as to overcome the high level of deference given to government action under rational basis review"; and (6) punitive damages are not recoverable from the Board as a matter of law. Id. at 1-2. Plaintiffs oppose the Board's motion to dismiss [D.E. 11].

II.

The court has considered the motion to dismiss for failure to state a claim under the governing standard of Rule 12(b)(6). See, e.g., Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1968-70, 167 L.Ed.2d 929 (2007); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.2008). Under that standard, a court must accept the complaint's factual allegations as true, but need not accept the legal conclusions drawn from the facts. See Giarratano, 521 F.3d at 302. Similarly, a court need not accept as true unwarranted inferences, unreasonable conclusions, or arguments. See id.

As for the Board's motion to dismiss under Rule 12(b)(1) and Rule 12(b)(2), the governmental immunity defense under North Carolina law presents a question of jurisdiction. See, e.g., Medina v. United States, 259 F.3d 220, 223-24 (4th Cir.2001); Myers v. McGrady, 360 N.C. 460, 465 n. 2, 628 S.E.2d 761, 765 n. 2 (2006): Teachy v. Coble Dairies, Inc., 306 N.C. 324, 326-28, 293 S.E.2d 182, 183-84 (1982); N.C. Ins. Guar. Ass'n v. Bd. of Trs. of Guilford Technical Cmty. Coll., 185 N.C.App. 518, 521, 648 S.E.2d 859, 860-61 (2007), disc. rev. allowed, 362 N.C. 678, 678, 672 S.E.2d 680 (2008); Welch Contracting, Inc. v. N.C. Dep't of Transp., 175 N.C.App. 45, 50, 622 S.E.2d 691, 694 (2005); Battle Ridge Cos. v. N.C. Dep't of Transp., 161 N.C.App. 156, 157, 587 S.E.2d 426, 427 (2003); Data Gen. Corp. v. County of Durham, 143 N.C.App. 97, 100, 545 S.E.2d 243, 245-46 (2001); Coastland Corp. v. N.C. Wildlife Res. Comm'n, 134 N.C.App. 343, 346, 517 S.E.2d 661, 663 (1999); Locus v. Fayetteville State Univ., 102 N.C.App. 522, 525, 402 S.E.2d 862, 864 (1991); Zimmer v. N.C. Dep't of Transp., 87 N.C.App. 132, 133-34, 360 S.E.2d 115, 116-17 (1987); Stahl-Rider, Inc. v. State, 48 N.C.App. 380, 383-84, 269 S.E.2d 217, 219 (1980). North Carolina courts have not resolved whether the sovereign immunity defense challenges personal jurisdiction or subjectmatter jurisdiction. See, e.g., Myers, 360 N.C. at 465 n. 2, 628 S.E.2d at 765 n. 2 ("[The North Carolina Supreme] Court has simply referred to the sovereign immunity bar as fatal to `jurisdiction' without further specification."); Teachy, 306 N.C. at 327-28, 293 S.E.2d at 184 ("Courts have differed as to whether sovereign immunity is a matter of personal or subject matter jurisdiction.... [W]e do not determine whether sovereign immunity is a question of subject matter [or personal] jurisdiction. . . ."); Locus, 102 N.C.App. at 525, 402 S.E.2d at 864 ("It has been recognized that whether sovereign immunity presents a question of subject matter jurisdiction or personal jurisdiction is unsettled in North Carolina."). Here, defendant Board files a motion to dismiss under Rule 12(b)(1) and Rule 12(b)(2). Accordingly, the court evaluates the motion under both governing standards.

In construing a Rule 12(b)(1) motion, plaintiff has the burden of proving subject-matter jurisdiction. Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir.1991). A court may "regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999) (quotation omitted). "The district court should grant the Rule 12(b)(1) motion to dismiss `only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'" Id. (quoting Richmond, 945 F.2d at 768). The pleadings are construed in a light most favorable to the nonmoving party. See, e.g., Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 967 (4th Cir.1992). "The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific...