Shock v. Wells Fargo Bank, N.A.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:23-CV-466-D

BRADLEY SHOCK, )

Plaintiff,

v. ORDER

‘WELLS FARGO BANK, N.A., et al.,

Defendants.

On June 28, 2023, Bradley Shock (“Shock” or “plaintiff’) filed a complaint in Wake County

Superior Court against Wells Fargo Bank, N.A. (“Wells Fargo”) and David Bird (“Bird”),

individually and his official capacity as a City of Cary Police Officer (collectively, “defendants”).

See [D.E. 1-1]. Shock alleges (1) malicious prosecution (against Wells Fargo and Shock), (2)

negligence (against Wells Fargo only), (3) negligent infliction of emotional distress (against Wells

Fargo only), (4) a violation of the Fifth Amendment of the United States Constitution under 42

U.S.C, § 1983 (against Bird only), (5) a violation of Monell v. Department of Social Services, 436

U.S. 658 (1978) (against City of Cary only), and (6) respondeat superior (against City of Cary only).

See [D.E. 1-1] 8-13. Bird seeks damages in excess of $25,000, attorney’s fees, and any other

applicable remedy. See id. at 11, 13. On August 23, 2023, Bird, with the consent of Wells Fargo,

removed this action to federal court [D.E. 1]. On August 29, 2023, Bird moved to dismiss the

complaint for lack of personal jurisdiction and failure to state a claim upon which relief can be

granted IDE. 8] and filed a memorandum in support [D.E. 9]. See Fed. R. Civ. P. 12(b)(2), (b)(6).

Shock did not respond. As explained below, the court grants Bird’s motion to dismiss and dismisses

the claims against both Bird and the City of Cary.

I.

On May 27, 2005, Betty Fallin (“Fallin”) authorized Shock, her nephew, as her agent for a

special durable power of attorney located at Wachovia Bank in Cary, North Carolina. See [D.E. 1-1]

7. In 2012, Fallin gave Shock signature authority and named Shock as her transfer of death

beneficiary at the same bank (now a Wells Fargo). See id. During this time, Shock managed Fallin’s

online banking accounts and used a debit card attached to the account to pay bills on Fallin’s behalf.

See id. No issues arose with this arrangement. See id. In 2016, Fallin moved to Rex Nursing Home.

See id. On December 2, 2016, Fallin updated her durable power of attorney to expand Shock’s

authority to include all her bank accounts. See id.

In November 2019, Shock left for a three-month vacation in Thailand. See id. Due to the

COVID-19 pandemic, Shock obtained an extended visa to remain in Thailand. See id. at 7-8. In

July 2020, Fallin died. See id. at 8. On an unknown date in the summer of 2020, Wells Fargo

locked Fallin’s account until Shock could produce a power of attorney. See id. Shock failed to

produce the document. See id. In August 2020, Shock sent ie to his sister to retrieve the power

of attorney from Fallin’s residence. See id.

In September 2020, Shock gave the power of attorney to Bird, a detective for the Cary Police

Department in Cary, North Carolina. See id. at 6, 8.1 On November 6, 2020, the Cary Police

Department obtained an arrest warrant charging Shock with Exploitation of an Older Adult or

Disabled Adult, N.C. Gen. Stat. § 14-112.2(b). See id. at 8. On March 28, 2022, Shock’s criminal

case was dismissed. See id.

1 Shock pleads no facts explaining why he gave the power of attorney to Detective Bird or

when he returned from Thailand.

I.

Bird moves to dismiss for lack of personal jurisdiction. See [D.E. 8] 1; [D.E. 9] 2; Fed. R.

Civ. P. 12(b)(2). “[A]n individual is subject to general jurisdiction in [his] place of domicile.”

Zimmerman v. Great Am. Ins. Grp., No. 7:21-CV-108, 2022 WL 2311776, at *3 n.3 (E.D.N.C. June

27, 2022) (unpublished) (quotation omitted), aff'd sub nom. Zimmerman v. Great Am. Ins. Co., No.

22-1749, 2023 WL 5696526 (4th Cir. Sept. 5, 2023) (per curiam) (unpublished); see Ford Motor Co.

v. Mont. Eighth Jud. Dist. Ct., 141 S.Ct. 1017, 1024 (2021); Daimler AG v. Bauman, 571 U.S. 117,

137 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011). Shock

alleges Bird is “a citizen and resident of Wake County, North Carolina.” [D.E. 1-1] 6. Bird fails to

submit any evidence that he is not domiciled in North Carolina. Thus, this court has personal

jurisdiction over Bird and denies Bird’s motion to dismiss for lack of personal jurisdiction.

Bird also moves to dismiss the claims against him under Rule 12(b)(6). A motion to dismiss

under Rule 12(b)(6) tests the complaint’s legal and factual sufficiency. See Ashcroft v. Iqbal, 556

U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v.

Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v.

Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading “must

contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521

F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences

“in the light most favorable to [the nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 352 (4th

_ 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir.

2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155 (2015). A court need

not accept as true a complaint’s legal conclusions, “unwarranted inferences, unreasonable

conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S.

at 678—79. Rather, a plaintiff's factual allegations must “nudge[] [his] claims,” Twombly, 550 U.S.

at 570, beyond the realm of “mere possibility” into “plausibility.” Iqbal, 556 U.S. at 678—79.

When evaluating a motion to dismiss, a court considers the pleadings and any materials

“attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,

637 F.3d 435, 448 (4th Cir. 2011); see Fed. R. Civ. P. 10(c); Goines v. Valley Cmty. Servs. Bd., 822

F.3d 159, 165-66 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court

also may consider a document submitted by a moving party if it is “integral to the complaint[,] and

there is no dispute about the document’s authenticity” without converting the motion into one for

summary judgment. Goines, 822 F.3d at 166. “[I]n the event of conflict between the bare

allegations of the complaint and any exhibit attached . . . , the exhibit prevails.” Id. (quotation

omitted); see Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d. 1462, 1465 (4th Cir. 1991).

Additionally, a court may take judicial notice of public records. See, e.g., Fed. R. Evid. □□□□

Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem’1

Boom 572 F.3d 176, 180 (4th Cir. 2009).

North Carolina law applies to some claims in this action. For those claims, this court must

predict how the Supreme Court of North Carolina would rule on any disputed state-law issue. See

Twin City Fire Ins. Co. v. Ben Amnold-Sunbelt Beverage Co., 433 F.3d 365, 369 (4th Cir. 2005).

First, the court looks to eninicns of the Supreme Court of North Carolina. See Parkway 1046, LLC

_-v.U.S. Home Corp., 961 F.3d 301, 306 (4th Cir. 2020); Stahle v. CTS Corp., 817 F.3d 96, 100 (4th

Cir. 2016). If there are no governing opinions from that court, this court may consider the opinions

of the North Carolina Court of Appeals, treatises, ana “the practices of other states.” Twin City Fire

Ins. Co., 433 F.3d at 369 (quotation and citation omitted). In doing so, this court “should not create

or expand a [s]tate’s public policy.” Time Warner Ent.-Advance/Newhouse P’ship v.

Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007) (alteration and

quotation omitted); see Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4 (1975) (per curiam);

Wade v. Danek Med., Inc., 182 F.3d 281, 286 (4th Cir. 1999). Moreover, in predicting how the

highest court of a state would address an issue that it has not yet resolved, this court must “follow

the decision of an intermediate state appellate court unless there is persuasive data that the highest

court would decide differently.” Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir. 2013)

(quotation omitted); Hicks v. Feiock, 485 U.S. 624, 629-30 & n.3 (1988)

A.

Under North Carolina law, to state a malicious prosecution claim, a plaintiff must plausibly

allege that the defendant: ‘“(1) initiated or participated in the earlier proceeding, (2) did so

maliciously, (3) without probable cause, and (4) the earlier proceeding ended in favor of the

plaintiff.” Turner v. Thomas, 369 N.C. 419, 425, 794 S.E.2d 439, 444 (2016); see N.C. Farm Bureau

Mut. Ins. Co. v. Cully’s Motorcross Park, Inc., 366 N.C. 505, 512, 742 S.B2d 781, 786-87 (2013).

Probable cause means “the existence of such facts and circumstances, known to the defendant at the

time, as would induce a reasonable man to commence a prosecution.” Turner, 369 N.C. at 425, 794

S.E.2d at 444 (cleaned up); see Best v. Duke Univ., 337 N.C. 742, 750, 448 S.E.2d 506, 510 (1994);

Cook v. Lanier, 267 N.C. 166, 170, 147 S.E.2d 910, 914 (1966). A criminal proceeding ending in

Shock’s favor alone does not “automatically negate the existence of probable cause at the time

prosecution was commenced” or establish malice. Turner, 369 N.C. at 425, 794 S.E.2d at 445.

“A plaintiff alleging mealieines or intentional acts by a government official faces a high

bar....” Fox v. City of Greensboro, 279 N.C. App. 301, 316, 866 S.E.2d 270, 284 (2021). □□□□□□□

malice element may be satisfied by a showing of either actual or implied malice.” Kirschbaum v.

McLaurin Parking Co., 188 N.C. App. 782, 789, 656 S.E.2d 683, 688 (2008) (quotation omitted).

Malice requires that the defendant “was motivated by personal spite and a desire for revenge” or that

the defendant acted with “reckless and wanton disregard” for the plaintiff's rights. Fox, 279 N.C.

App. at 316, 866 S.E.2d at 284 (quotation omitted); see Kirschbaum, 188 N.C. App. at 789, 656

S.E.2d at 688.

Shock fails to plausibly allege that Bird acted with malice or lacked probable cause to

institute a criminal proceeding against him. See, e.g., McClure v. Ports, 914 F.3d 866, 874 (4th Cir.

2019); Green v. Nocciero, 676 F.3d 748, 755 (8th Cir. 2012); Jenkins v. Kinser, No. 3:21-CV-78,

2021 WL 4205606, at *5 (N.D.W. Va. Sept. 15, 2021) (unpublished). Shock alleges “Bird also

instituted a criminal proceeding against [Shock] based on the reports by ... Wells Fargo,” and “Bird

continued the proceeding against [Shock] with malice in that he intentionally continued his active

investigation and case even after being presented with exculpatory evidence of [Shock]’s innocence

that showed a lack of probable cause.” [D.E. 1-1] 9. According to Shock, this exculpatory evidence

was the power of attorney authorizing Shock to conduct banking activity on behalf of Fallin. See

id.

Bird responds that, without any malice, he investigated Shock for the crime of exploitation

of an older adult. See [D.E. 9] 5. Exploitation of an older adult requires “a person . . . in a position

of trust and confidence with an older adult or disabled adult” who obtains “funds, assets, or property

with the intent to temporarily or permanently deprive the older adult or disabled adult of the use,

benefit, or possession of the funds, assets, or property, or to benefit someone other than the older

adult or disabled adult.” N.C. Gen. Stat. § 14-112.2(b). Thus, Shock’s alleged exculpatory evidence

satisfied an element of the crime and supported Bird’s investigation. See [D.E. 9] 5.

Shock fails to plausibly allege a malicious prosecution claim. Accordingly, the court

dismisses the first claim against Bird.

B.

“A [section] 1983 malicious prosecution action is nothing more than a [section] 1983 claim

arising from a Fourth Amendment violation.” Lambert v. Williams, 223 F.3d 257, 260 (4th Cir.

2000). Shock improperly seeks to plead this claim under the Fifth Amendment. See Snider v. Lee,

584 F.3d 193, 199 (4th Cir. 2009); Brooks v. City of Winston-Salem, 85 F.3d 178, 185 n.8 (4th Cir.

1996); Taylor v. Waters, 81 F.3d 429, 437 n.6 (4th Cir. 1996). Because no claim exists for malicious

prosecution under the Fifth Amendment, the court dismisses Shock’s section 1983 claim.

Alternatively, even if Shock seeks to proceed under the Fourth Amendment, the claim fails.

Under the doctrine of qualified immunity, “government officials performing discretionary functions

generally are shielded from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see City of Escondido v. Emmons, 139 S. Ct. 500,

503-04 (2019) (per curiam); Kisela v. Hughes, 138 S. Ct. 1148, 1152-55 (2018) (per curiam);

- District of Columbia v. Wesby, 583 U.S. 48, 62-63 (2018); Hernandez v. Mesa, 582 U.S. 548, 554

(2017); Ziglar v. Abbasi, 582 U.S. 120, 150-51 (2017); King v. Riley, 76 F.4th 259, 266-68 (4th Cir.

2023); Sharpe v. Winterville Police Dep’t, 59 F.4th 674, 682-84 (4th Cir. 2023); Burns-Fisher v.

Romero-Lehrer, 57 F.4th 421, 424 (4th Cir. 2023); Tobey v. Jones, 706 F.3d 379, 385 (4th Cir.

2013).? Qualified immunity protects “all but the plainly incompetent or those who knowingly violate

2 The court recognizes the current state of qualified immunity doctrine and the debate about

whether the Supreme Court or Congress should change it. See, e.g., Sharpe, 59 F.4th at 684 n.12.

As a lower court, however, this court must follow binding precedent. See id.

the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986); see Kisela, 138 S. Ct at 1152.

In analyzing qualified immunity, the court asks (1) “whether the facts that a plaintiff has

alleged or shown make out a violation of a constitutional right,” and (2) “whether the right at issue

_was clearly established at the time of [the] defendant’s alleged misconduct.” Pearson v. Callahan,

555 U.S. 223, 232 (2009) (cleaned up); see Wood v. Moss, 572 U.S. 744, 757 (2014); Knibbs v.

Momphard, 30 F.4th 200, 214 (4th Cir. 2022); Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir.

2011); Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 169 (4th Cir. 2010). “A

Government official’s conduct violates clearly established law when, at the time of the challenged

conduct, the contours of a right are sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)

(cleaned up); see Rivas-Villegas v. Cortesluna, 595 U.S. 1, 4-5 (2021) (per curiam); King, 76 F.4th

at 264-65; Sharpe, 59 F.4th at 682-84. Although a case need not be directly controlling, “existing

precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 563

U.S. at 741; see Rivas-Villegas, 595 U.S. at 4-6; King, 76 F.4th at 266-68; Sharpe, 59 F.4th at

682-84.

To determine whether an officer’s conduct violates clearly established law, a court must first

_ specifically define the right. See, e.g., City of Tahlequah v. Bond, 595 U.S. 9, 12-13 (2021) (per

curiam). “Such specificity is especially important in the Fourth Amendment context... □□ Id.

(quotation omitted). Once the court specifically defines the right, the court must determine whether

existing precedent placed the statutory or constitutional question “beyond debate.” Kisela, 138 S.

Ct. at 1152 (quotation omitted). “It is not enough that a rule be suggested by then-existing precedent;

the rule’s Conioury must be so well defined that it is clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Bond, 595 U.S. at 12 (quotation omitted); see Wesby, 583

US. at 63. An officer is entitled to qualified immunity “unless existing precedent ‘squarely governs’

the specific facts at issue.” Kisela, 138 S. Ct. at 1153 (quoting Mullenix v. Luna, 577 US. 7, 13

(2015) (per curiam)); see Wesby, 583 U.S. at 63-66.

The Supreme Court has “not yet decided what precedents—other than [its] own—qualify as

controlling authority for purposes of qualified immunity.” Wesby, 583 U.S. at 66 n.8; see Kisela,

138 S. Ct. at 1152-54; Taylor v. Barkes, 575 U.S. 822, 825-27 (2015) (per curiam); City & Cnty.

of S.F. v. Sheehan, 575 U.S. 600, 613-14 (2015); Carroll v. Carman, 574 U.S. 13, 16-17 (2014) (per

curiam). In the Fourth Circuit, “existing precedent” includes precedent of the United States Supreme

Court, the Fourth Circuit, and the highest court of the state in which the action arose. See Doe ex

_ rel. Johnson, 597 F.3d at 176. It also includes “a consensus of persuasive authority from other

jurisdictions.” Sharpe, 59 F.4th at 683.

In Pearson, the Supreme Court held that the qualified-immunity analysis need not proceed

in a particular sequence, and that “[t]he judges of the district courts and the courts of appeals [may]

exercise their sound discretion in deciding which of the two prongs . . . should be addressed first in

light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236; see King, 76

F.4th 259, 265. Qualified immunity shields a defendant if the answer to either prong is “no.” See

al-Kidd, 563 U.S. at 735; Miller v. Prince George’s Cnty., 475 F.3d 621, 627 (4th Cir. 2007); Bostic

v. Rodriguez, 667 F. Supp. 2d 591, 605-06 (E.D.N.C. 2009).

Shock fails to plausibly allege that Bird violated his Fourth Amendment rights. Moreover,

Shock fails to plausibly allege that he was prosecuted without probable cause. In fact, Shock’s

power of attorney agreement combined with the facts of the case supported Bird’s conduct. See

[D.E. 9] 6-7. Thus, Bird has qualified immunity, and the court dismisses Shock’s malicious

prosecution claim against Bird.

C.

Shock alleges a Monell claim and a respondeat superior claim against the City of Cary. See

[D.E. 1-1] 12-13. Monell, however, is not a cause of action. See Monell, 436 U.S. at 690-91.

Rather, Monell stands for the proposition that municipalities are persons under section 1983 and can

be sued under section 1983. See id.; Kennedy v. Rowe, No. 5:23-CV-264, 2023 WL 6612437, at

*3n2 (E.D.N.C. Oct. 10, 2023) (unpublished). Moreover, Shock failed to name the City of Cary

as a party in the caption. See Fed. R. Civ. P. 10(a). And Shock failed to serve the City of Cary with

a complaint. See Fed. R. Civ. P. 4(a). Thus, the City of Cary is not a party to this action.

Accordingly, the court dismisses claims five and six.

Il. .

In sum, the court GRANTS defendant Bird’s motion to dismiss IDE. 8] and DISMISSES

WITH PREJUDICE plaintiff s complaint against defendant Bird. The courtalso DISMISSES WITH

PREJUDICE any claim against the City of Cary.

SO ORDERED. This § day of February, 2024.

. tz C. DEVER Il

United States District Judge

10