LINDEMANN-MOSES v. JACKMON

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KERSTIN LINDEMANN-MOSES, )

)

Plaintiff, )

)

v. ) 1:20cv655

)

BARBARA JACKMON and )

CHRISTOPHER ANDRE JACKMON, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

Before the court is pro se Defendant Barbara Jackmon’s

(“Jackmon”) motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). (Doc. 5.) Pro se Plaintiff Kerstin Lindemann-

Moses filed a response in opposition. (Docs. 7, 8.) For the

reasons set forth below, Jackmon’s motion to dismiss will be

granted in part and denied in part.

I. BACKGROUND

The allegations, taken in the light most favorable to

Lindemann-Moses, show the following:

On January 20, 2016, Lindemann-Moses connected with Defendant

Christopher Andre Jackmon (“CJ”) through an online dating service

and soon thereafter began a romantic relationship with him. (Doc.

1 ¶¶ 3–5.) At the time, CJ was incarcerated in a Federal Bureau

of Prisons (“BOP”) facility in South Carolina. (Id. ¶ 5.)

In February 2016, CJ told Lindemann-Moses about an investment

opportunity called Nationwide Legal Services (“Nationwide”). (Id.

¶ 6.) CJ told Lindemann-Moses that he was establishing Nationwide

to provide legal services to inmates. (Id. ¶¶ 1, 6, 8.) To

convince Lindemann-Moses that the opportunity was legitimate, CJ

showed her documentation and a personal bank account statement

indicating he held $900,000. (Id. ¶ 6.)

In March 2016, Lindemann-Moses began the process of selling

an inherited property in Germany. (Id. ¶ 7.) At that time, based

on CJ’s representations that Nationwide presented a lucrative

investment opportunity, Lindemann-Moses acquired $50,000 from the

trustee of the inherited estate to secure her interest in

Nationwide. (Id.) Between March 13, 2016, and July 2016,

Lindemann-Moses transferred the $50,000 to CJ through Western

Union wire transfers and wire transfers to a Wells Fargo bank

account opened in the names of CJ and his mother, Defendant Jackmon

(“the Wells Fargo account”). (Id. ¶¶ 7, 9.)

In May 2016, CJ informed Lindemann-Moses that he would be

released from prison in late 2016 and that he had already acquired

a business address for Nationwide. (Id. ¶ 10.)

In June 2016, after receiving a loan from her sister,

Lindemann-Moses transferred $25,000 to CJ through the Wells Fargo

account. (Id. ¶¶ 11, 12.) She sent an additional $25,000 to CJ

through a Western Union wire transfer and a personal check. (Id.

¶ 12.)

In August 2016, Lindemann-Moses received $250,000 from the

sale of the inherited estate. (Id. ¶¶ 13, 19.) In October 2016,

CJ sent Lindemann-Moses instructions on how to send him additional

money. (Id. ¶ 14.) On December 2, 2016, after CJ showed Lindemann-

Moses another personal bank account statement indicating he held

over $900,000, Lindemann-Moses transferred $100,000 to the Wells

Fargo account. (Id. ¶ 15.)

Sometime at the end of 2016, at CJ’s urging, Lindemann-Moses

connected with Jackmon and they developed a personal friendship.

(Id. ¶ 16.) They conversed several times a week for multiple

hours. (Id.)

In March 2017, at CJ’s direction, Lindemann-Moses sent an

additional $5,500 to the Wells Fargo account. (Id. ¶ 18.)

Sometime after July 2017 — after Lindemann-Moses had

transferred all of her $250,000 inheritance to CJ — CJ ended his

romantic relationship with her. (Id. ¶ 19.) Lindemann-Moses

continued speaking regularly with Jackmon, who encouraged

Lindemann-Moses to stay in contact with her son. (Id.)

Sometime after April 2018, Lindemann-Moses was contacted by

G. Montague. (Id. ¶ 22.) Montague was an inmate who had been

defrauded by CJ for $3,000. (Id.) In order to protect CJ and her

investment in Nationwide, Lindemann-Moses paid Montague $3,000 to

settle the debt. (Id.) At that point, Lindemann-Moses learned

that CJ had a long history of defrauding individuals and not

preparing legal documents as promised. (Id.)

In March 2019, Lindemann-Moses visited CJ in a BOP facility

in Brooklyn. (Id. ¶ 24.) During that visit, she asked CJ about

the money she had given him. (Id.) He laughed and replied, “It

was all gone.” (Id.)

From March 2019 to August 2019, Lindemann-Moses began

investigating CJ and reaching out to Jackmon regarding her lost

money. (Id. ¶ 25.) Lindemann-Moses warned Jackmon that she would

notify the BOP of CJ’s fraud if he didn’t return the money. (Id.)

Jackmon offered Lindemann-Moses a sum of money if she agreed to

refrain from reporting CJ’s fraud until after he was released from

prison. (Id.) In line with this agreement, Jackmon immediately

paid Lindemann-Moses $5,000 and continued paying Lindemann-Moses

$1,000 per month until CJ’s release in November 2019. (Id.)

Upon CJ’s release in November 2019, Lindemann-Moses picked

him up from prison and transported him to Jackmon’s home in

Virginia for a release party. (Id. ¶ 26.)

By January 2020, Lindemann-Moses realized that CJ never

intended to establish Nationwide and that he had defrauded her of

her inheritance. (Id. ¶ 27.) Lindemann-Moses continued trying to

recover her lost inheritance from CJ. (Id.) She appealed to

Jackmon, giving her and CJ a deadline by which to return her money.

(Id. ¶¶ 27, 29.) Jackmon became irate and frustrated with

Lindemann-Moses’s appeals and left Lindemann-Moses several angry

and threatening voicemails. (Id. ¶ 29.) In one message, Jackmon

stated, “[Y]ou better watch what you say to me! I don’t have

anything to do with this [expletive]! This is between you and my

son, Chris! So, don’t call me again!” (Id.)

Through her efforts, Lindemann-Moses was able to recover some

of her inheritance. On January 13, 2020, Lindemann-Moses received

a Wells Fargo bank check for the sum of $20,000. (Id. ¶ 31.) On

March 6, 2020, she received a second $20,000 Wells Fargo bank

check. (Id.) On May 28, 2020, CJ paid Lindemann-Moses $50,000 in

exchange for her signing an NDA that released and forgave any

claims she held against CJ. (Id. ¶ 33; Doc. 9-7.) In total,

Lindemann-Moses has recovered $90,000 of her $250,000 inheritance.1

(Doc. 1 ¶ 35.)

Lindemann-Moses now brings claims against both CJ and Jackmon

for breach of contract, fraud, intentional infliction of emotional

distress, interference with expectation of inheritance, and unjust

enrichment.2 (Id. ¶¶ 36–63.) Lindemann-Moses argues that Jackmon

conspired with CJ in the fraudulent scheme and that Jackmon, being

1 If the parties include the $5,000 one-time payment and $1,000 monthly

payments that Jackmon made to Lindemann-Moses between May 2019 and

November 2019, the total recovered is closer to $100,000. (See Doc. 1

¶ 25.)

2 The parties agree that North Carolina law governs these claims. (See

Doc. 1 (citing North Carolina law); Doc. 5 (same).) For purposes of the

present motion, the court accepts the application of North Carolina law.

named on the Wells Fargo account with CJ, is liable because she

had full control of the stolen money. (Id. ¶ 34.)

II. ANALYSIS

A. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) provides that a

complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P.

(8)(a)(2). Under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when

the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. In considering a Rule 12(b)(6) motion,

a court “must accept as true all of the factual allegations

contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam), and all reasonable inferences must be drawn

in the plaintiff’s favor. Ibarra v. United States, 120 F.3d 472,

474 (4th Cir. 1997). “Rule 12(b)(6) protects against meritless

litigation by requiring sufficient factual allegation ‘to raise a

right to relief above the speculative level’ so as to ‘nudge[]

the[] claims across the line from conceivable to plausible.’”

Sauers v. Winston-Salem/Forsyth Cty. Bd. Of Educ., 179 F. Supp. 3d

544, 550 (M.D.N.C. 2016) (alteration in original) (quoting

Twombly, 550 U.S. at 555). “[T]he complaint must ‘state[] a

plausible claim for relief’ that permit[s] the court to infer more

than the mere possibility of misconduct based upon ‘its judicial

experience and common sense.’” Coleman v. Md. Ct. App., 626 F.3d

187, 190 (4th Cir. 2010) (alterations in original) (quoting Iqbal,

556 U.S. at 679). Thus, mere legal conclusions are not accepted

as true, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Iqbal, 556 U.S. at 678.

As noted, both parties proceed pro se. Although courts must

construe pro se complaints liberally, “generosity is not a

fantasy.” Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th

Cir. 1998). The court is not expected to plead a plaintiff's claim

for her, id., or “construct full blown claims from sentence

fragments,” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th

Cir. 1985). Likewise, a court should not “conjure up questions

never squarely presented.” Id.

B. Breach of Contract

Lindeman-Moses’s first cause of action alleges breach of

contract. Under North Carolina law, the essential elements for a

breach of contract claim are the existence of a valid contract and

a breach of the terms of that contract. Eli Rsch., Inc. v. United

Commc'ns Grp., LLC, 312 F. Supp. 2d 748, 755 (M.D.N.C. 2004)

(citing Poor v. Hill, 530 S.E.2d 838, 843 (N.C. Ct. App. 2000)).

A valid contract requires an agreement based on a meeting of the

minds and sufficient consideration. Creech ex rel. Creech v.

Melnik, 556 S.E.2d 587, 591–92 (N.C. Ct. App. 2001). “[A] contract

cannot bind a nonparty.” E.E.O.C. v. Waffle House, Inc., 534 U.S.

279, 294 (2002); see Arthur Anderson LLP v. Carlisle, 556 U.S.

624, 632 (2009). Thus, in general, parties to a contract “cannot

maintain an action” against nonparties based on the contract.

Vitale & Assocs., LLC v. Lowden, 690 Fed. App'x 555, 556-57 (9th

Cir. 2017) (per curiam); see Richmond Health Facilities v. Nichols,

811 F.3d 192, 200-01 (6th Cir. 2016); Ferrante v. Westin St. John

Hotel Co., No. 4:18-CV-108-D, 2020 WL 486198, at *6 (E.D.N.C. Jan.

29, 2020).

Jackmon argues that this claim should be dismissed because

Lindemann-Moses has failed to allege any contractual agreement

with Jackmon. (Doc. 5 ¶ 1.) The court agrees. Lindemann-Moses

has alleged that she had a verbal contract with both Defendants to

become an equal partner in Nationwide alongside CJ. (Doc. 1 ¶ 37.)

However, Lindemann-Moses has failed to allege any facts indicating

that Jackmon was a party to this agreement. Taking the pleadings

as true, CJ — not Jackmon — made the verbal agreement at issue.

Lindemann-Moses fails to identify any agreement with Jackmon.

Although Lindemann-Moses argues that the investment itself is

evidence of an agreement between them (see Doc. 7 ¶ 1), the

transfer of funds to an account in CJ’s name is consistent with

the contractual agreement with him and does not necessitate an

agreement with Jackmon. The mere transfer of funds to an account

held jointly by CJ and Jackmon does not serve to bind Jackmon to

an agreement made by CJ. As Lindemann-Moses has failed to allege

a contractual agreement between herself and Jackmon, her claim for

breach of contract against Jackmon will be dismissed.

C. Fraud

Lindemann-Moses’s second cause of action alleges fraud.

Jackmon argues that the fraud claim against her should be dismissed

because Lindemann-Moses has not pleaded fraud with the required

particularity.

Federal Rule of Civil Procedure 9(b) creates a heightened

pleading standard for claims brought in federal court based on

fraud or mistake, including state law claims.3 Topshelf Mgmt.,

Inc. v. Campbell-Ewald Co., 117 F. Supp. 3d 722, 725–26 (M.D.N.C.

2015). Under this rule, parties alleging fraud “must state with

particularity the circumstances constituting fraud or mistake.

Malice, intent, knowledge, and other conditions of a person's mind

may be alleged generally.” Fed. R. Civ. P. 9(b). Parties must

plead with particularity “the time, place, and contents of the

3 Although Lindemann-Moses is proceeding pro se and her pleadings are

held to a less stringent standard than for those drafted by attorneys,

she is held to compliance with the Federal Rules of Civil Procedure.

Emiabata v. BB&T, No. 1:17CV529, 2018 WL 704714, at *2 (M.D.N.C. Feb.

1, 2018).

false representations, as well as the identity of the person making

the misrepresentation and what he obtained thereby.” U.S. ex rel.

Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir.

2008) (citing Harrison v. Westinghouse Savannah River Co., 176

F.3d 776, 784 (4th Cir. 1999)). “[W]here multiple defendants are

asked to respond to allegations of fraud, the complaint should

inform each defendant of the nature of his alleged participation

in the fraud.” Andrews v. Fitzgerald, 823 F. Supp. 356, 373

(M.D.N.C. 1993) (quoting Di Vittorio v. Equidyne Extractive

Indus., 822 F.2d 1242, 1247 (2d Cir. 1987)). The purpose of this

heightened pleading requirement is to satisfy the court “(1) that

the defendant has been made aware of the particular circumstances

for which she will have to prepare a defense at trial, and (2)

that plaintiff has substantial prediscovery evidence of those

facts.” Harrison, 176 F.3d at 784.

To state an actionable claim of fraud under North Carolina

law, the following essential elements must be shown: (1) a false

representation or concealment of a material fact, (2) that was

reasonably calculated to deceive, (3) which was made with the

intent to deceive, (4) that did in fact deceive, and (5) resulted

in damage. Liner v. DiCresce, 905 F. Supp. 280, 288 (M.D.N.C.

1994) (citing Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 374

S.E.2d 385 (N.C. 1988)).

Here, Lindemann-Moses has not alleged any misrepresentation

or concealment on Jackmon’s part that caused her to invest her

inheritance in Nationwide. She bases her fraud claim solely on

misrepresentations made by CJ. (See Doc. 1 ¶ 42 (alleging

“Defendants” committed fraud by falsely claiming to have started

a company and providing false information and documentation to

that end); see also id. ¶ 6 (“CJ told Moses about an investment

idea.”), ¶ 7 (“Moses while under [CJ’s] web of deceit, asked

neighbors, friends to send [money] to unknown associates of CJ.”),

¶ 15 (explaining CJ showed her documentation that made her “feel

safe her money was an investment”). As Lindemann-Moses has not

alleged that Jackmon made any misrepresentations intended to

deceive her, the pleadings are insufficient to state a claim for

fraud against Jackmon.

The court recognizes that Lindemann-Moses may seek to hold

Jackmon accountable for misrepresentations made by CJ based on a

conspiracy theory. Specifically, Lindemann-Moses alleges that “CJ

and Ms. Jackmon conspired against Moses to” defraud her of her

inheritance and describes Ms. Jackmon as “his co-conspirator.”

(Doc. 1 ¶¶ 34, 35; see also Doc. 7 ¶ 2 (describing CJ and Ms.

Jackmon as “acting in . . . concert” to perpetrate the fraud).)

Cognizant of Lindemann-Moses pro se status, the court construes

the complaint as alleging a claim for conspiracy to defraud against

Ms. Jackmon. As such, the court will consider whether Lindemann-

Moses has sufficiently stated such a claim.

A claim for conspiracy to defraud requires a successful

underlying claim for fraud. Jay Grp., Ltd. v. Glasgow, 534 S.E.2d

233, 236 (N.C. Ct. App. 2000). In order to allege a conspiracy to

defraud, “the particularity requirements of Fed. R. Civ. P. 9(b)

must be met.” First Fin. Sav. Bank, Inc. v. Am. Bankers Ins. Co.

of Fla., No. 88-148-CIV-5-H, 1990 WL 260541, at *8 (E.D.N.C. July

5, 1990) (quoting Hayduk v. Lanna, 775 F.2d 441, 443 (1st Cir.

1985)). A complainant must state more than mere legal conclusions

regarding the existence of the conspiracy. Id. A plaintiff must

expressly allege an agreement or make averments of “communication,

consultation, cooperation, or command” from which such an

agreement can be inferred. Id. (citing Weathers v. Ebert, 505

F.2d 514, 517 (4th Cir. 1974)).

As a threshold matter, Lindemann-Moses has stated a claim for

fraud against CJ. The court must therefore determine whether

Lindemann-Moses has plausibly alleged facts to support a claim of

conspiracy between CJ and Jackmon related to the underlying fraud.

While Lindemann-Moses does not expressly allege that Jackmon

and CJ formed an agreement to defraud Lindemann-Moses, the

complaint, construed liberally, contains sufficient factual

allegations to plausibly support the inference of a conspiracy

between Jackmon and CJ such that the claim survives a motion to

dismiss. Specifically, the complaint alleges that Jackmon and CJ

opened the joint Wells Fargo account to which Lindemann-Moses

deposited at least $130,000 between March 2016 and July 2017. As

a named account holder, Jackmon either was or should have been

aware of the large sums deposited into the account. Further,

Lindemann-Moses claims that Jackmon had “full control of the stolen

monies for close to [four] years,” that she was the only person

“with physical access to the Wells Fargo bank accounts,” and that

she “acted fully in securing and keeping control of the $250,000

while CJ was . . . in custody.” Jackmon’s involvement in the bank

account, coupled with her knowledge of the large deposits into the

account, is sufficiently indicative of some cooperation between

Jackmon and CJ to infer — at least, at the present early stage —

an agreement to defraud Lindemann-Moses through use of the account.

Additionally, Jackmon’s decision to pay Lindemann-Moses

approximately $10,000 in hush money to keep her from reporting CJ

to the BOP provides further indication of a conspiracy to defraud.

Although Lindemann-Moses will ultimately need to provide

additional facts in support of the alleged conspiracy, viewing the

facts collectively and construing the complaint liberally, the

allegations plausibly state a claim for conspiracy to defraud. As

such, Jackmon’s motion to dismiss the claim for conspiracy to

defraud will be denied.4

4 To the extent Lindemann-Moses intended to allege Jackmon aided and

abetted CJ’s fraud, that claim would fail under North Carolina law. “No

North Carolina state court has recognized a claim for aiding and abetting

fraud.” Branch Banking & Trust Co. v. Lighthouse Fin. Corp., No. 04 CVS

1523, 2005 WL 1995410, slip op. at *8 (N.C. Super. Ct. July 13, 2005).

D. Intentional Infliction of Emotional Distress

Lindemann-Moses’s third cause of action alleges intentional

infliction of emotional distress. Jackmon also moves to dismiss

this claim. (Doc. 5.) Under North Carolina law, the essential

elements of this tort are “(1) extreme and outrageous conduct, (2)

which is intended to cause and does cause (3) severe emotional

distress to another.” Dickens v. Puryear, 276 S.E.2d 325, 335

(N.C. 1981); accord Simmons v. Chemol Corp., 528 S.E.2d 368, 371

(N.C. Ct. App. 2000). “Whether or not conduct constitutes extreme

and outrageous behavior is initially a question of law for the

court.” Simmons, 528 S.E.2d at 372. “Conduct is extreme and

outrageous when it 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.” Smith–Price v. Charter Behav. Health Sys., 595 S.E.2d

778, 782 (N.C. Ct. App. 2004) (internal quotation marks and

citation omitted). The “extreme and outrageous” test accounts not

only for the severity of a defendant’s actions, but also “the

severity of distress the defendant intended to instill in the

victim by way of such actions.” Tuggles v. United States, No.

1:18CV97, 2019 WL 954978, at *6 (M.D.N.C. Feb. 27, 2019) (quoting

See also Bradshaw v. Maiden, No. 14 CVS 14445, 2015 WL 4720387, at *14

(N.C. Super. Ct. Aug. 10, 2015); Yale v. CommunityOne Bank, N.A., No.

3:15-CV-403-RJC-DSC, 2016 WL 9753776, at *4 (W.D.N.C. Aug. 10, 2016).

Hensley v. Suttles, 167 F. Supp. 3d 753, 768–69 (W.D.N.C. 2016)).

The behavior must be more than “mere insults, indignities, [or]

threats . . . . [P]laintiffs must . . . be hardened to a certain

amount of rough language, and to occasional acts that are

definitely inconsiderate or unkind.” Hogan v. Forsyth Country

Club Co., 340 S.E.2d 116, 123 (N.C. Ct. App. 1986); see also

McClean v. Duke Univ., 376 F. Supp. 3d 585, 612 (M.D.N.C. 2019).

Lindemann-Moses bases her claim for intentional infliction of

the emotional distress, at least in part, on the fraud perpetrated

on her. However, Lindemann-Moses has not alleged that the fraud

was perpetrated with the intent of causing severe emotional

distress. See Tuggles, 2019 WL 954978, at *7 (describing intent

to cause distress as a “required element[] for an IIED claim”).

The court is unaware of any case under North Carolina law where

fraud or conspiracy to defraud, absent an alleged intent to cause

emotional distress through that fraud, has been sufficient to

support a claim of intentional infliction of emotional distress.

Compare Leake v. Sunbelt Ltd. of Raleigh, 377 S.E.2d 285, 289 (N.C.

Ct. App. 1989) (finding colorable claim of fraud is not sufficient

to support intentional infliction of emotional distress claim

because plaintiffs failed to show defendants “intended to cause

emotional distress”) with Johnson v. First Union Corp., 496 S.E.2d

1, 5 (N.C. Ct. App. 1998) (finding intentional infliction of

emotional distress claim based on fraud survived dismissal because

plaintiffs alleged the misrepresentations and concealment “were

done with the intent to inflict anxiety and distress”); see also

Lord of Shalford v. Shelley's Jewelry, Inc., No. 199CV162, 2000 WL

33422738, at *6 (W.D.N.C. June 14, 2000) (holding allegations of

breach of contract and fraud cannot be reasonably regarded as

“extreme and outrageous” conduct intended to cause severe

emotional distress). As Lindemann-Moses has not alleged that

Jackmon perpetrated the fraud with the intention of causing her

emotional distress, this conduct cannot serve as the basis for an

intentional infliction of emotional distress claim.

Beyond the conspiracy to defraud, the only conduct upon which

Lindemann-Moses bases her claim against Jackmon is “several

contentious and assertive communications” between them. (Doc. 1

¶¶ 29, 53.) Angry phone calls alone do not constitute extreme or

outrageous conduct. See, e.g., Jolly v. Acad. Collection Serv.,

Inc., 400 F. Supp. 2d 851, 866–67 (M.D.N.C. 2005) (finding no

extreme or outrageous conduct where defendant made multiple

obnoxious phone calls in which he insulted and cursed at

plaintiffs; concluding plaintiffs “were not physically threatened

or intimidated in any way . . . . [Defendant] was not even present

when the conversations occurred and plaintiffs were free to end

the conversations at any time by simply hanging up the telephone”);

Basnight v. Diamond Devs., Inc., 146 F. Supp. 2d 754, 767 (M.D.N.C.

2001) (finding inconvenient and impolite phone calls do not rise

to the level of extreme and outrageous conduct); Daniel v. Carolina

Sunrock Corp., 430 S.E.2d 306, 310 (N.C. Ct. App. 1993) (finding

no extreme or outrageous conduct where, in addition to adverse

employment actions, co-workers made “harassing phone calls to the

home of plaintiff and to the homes of plaintiff's sister-in-law

and mother”); see also Johnson v. Bollinger, 356 S.E.2d 378, 385

(N.C. Ct. App. 1987) (finding no extreme or outrageous conduct

when an animal control officer confronted plaintiff in close

physical proximity with cursing and angry threats, stating “I will

get you,” in the presence of a firearm). As Lindemann-Moses has

failed to allege any extreme and outrageous conduct by Jackmon

intended to cause her emotional distress, her intentional

infliction of emotional distress claim will be dismissed.

E. Interference with Expectation of Inheritance

The fourth cause of action alleges interference with

expectation of inheritance, which is a class of undue influence.

See Stitz v. Smith, 846 S.E.2d 771, 775 (N.C. Ct. App. 2020).

Under this cause of action, a plaintiff can recover for malicious

and wrongful interference with the making of a will. Bohannon v.

Wachovia Bank & Tr. Co., 188 S.E. 390, 394 (N.C. 1936).

Here, Lindemann-Moses does not claim that Jackmon interfered

with the creation of the relevant will. Lindemann-Moses

acknowledges that she received $250,000 pursuant to the sale of

her inherited property. (See Doc. 1 ¶¶ 13, 19.) After receiving

her inheritance, she conveyed it to CJ. (Id.) As the will itself

was not interfered with, this cause of action is not applicable.

Lindemann-Moses’s claim for interference with the expectation of

inheritance will be dismissed.

F. Unjust Enrichment

The final cause of action alleges unjust enrichment. The

elements of such a claim under North Carolina law are: “(1)

plaintiff conferred a measurable benefit to defendant, (2)

defendant knowingly and voluntarily accepted the benefit, and (3)

the benefit was not given gratuitously.” TSC Rsch. LLC v. Bayer

Chems. Corp., 552 F. Supp. 2d 534, 540 (M.D.N.C. 2008). “[M]ore

must be shown than that one party voluntarily benefited another or

his property.” JP Morgan Chase Bank, Nat’l Ass’n v. Browning, 750

S.E.2d 555, 560 (N.C. Ct. App. 2013). The doctrine of unjust

enrichment applies in “circumstances where it would be unfair for

the recipient to retain [benefits] without the contributor being

repaid or compensated.” Homeq v. Watkins, 572 S.E.2d 871, 873

(N.C. Ct. App. 2002) (quoting Collins v. Davis, 315 S.E.2d 759,

761 (N.C. Ct. App. 1984)). “In order to properly set out a claim

for unjust enrichment, a plaintiff must allege that property or

benefits were conferred on a defendant under circumstances which

give rise to a legal or equitable obligation on the part of the

defendant to account for the benefits received.” Id. (quoting

Norman v. Nash Johnson & Sons' Farms, Inc., 537 S.E.2d 248, 266

(N.C. Ct. App. 2000)). A successful unjust enrichment claim must

show that, at the time a payment was made, both parties understood

that the payment was made with an expectation of some service or

benefit. Volumetrics Med. Imaging, Inc. v. ATL Ultrasound, Inc.,

243 F. Supp. 2d 386, 412 (M.D.N.C. 2003) (citing Scott v. United

Carolina Bank, 503 S.E.2d 149, 152 (N.C. Ct. App. 1998)). Further,

no unjust enrichment occurs when the benefit is given without

solicitation or inducement. See Homeq, 572 S.E.2d at 873.

Here, as Lindemann-Moses has sufficiently alleged Jackmon was

involved in a conspiracy to defraud her, she has sufficiently

alleged a claim for unjust enrichment against Jackmon. Lindemann-

Moses conveyed at least $130,000 to CJ and Jackmon’s joint bank

account at the urging of Jackmon’s alleged co-conspirator who

induced Lindemann-Moses to convey the funds as an investment in a

fictitious company. These facts are sufficient to indicate that

Lindemann-Moses conveyed a measurable benefit to Jackmon, Jackmon

was aware of the conveyance and accepted it voluntarily, and the

benefit was not given gratuitously. As such, Jackmon’s motion to

dismiss this claim will be denied.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that Jackmon’s motion to dismiss (Doc.

5) will be GRANTED IN PART and DENIED IN PART as follows: the

motion to dismiss claims two (construed as a conspiracy to commit

fraud) and five (unjust enrichment) will be DENIED, and the motion

to dismiss claims one (breach of contract), three (intentional

infliction of emotional distress), and four (interference with

inheritance) against Jackmon will be GRANTED and claims one, three,

and four against Jackmon are DISMISSED.

/s/ Thomas D. Schroeder

United States District Judge

October 16, 2020