Brown v. Brown

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CASE NO. 3:23-CV-00230-FDW-SCR

ANTHONY T BROWN, )

)

Plaintiff, )

)

v. ) ORDER

)

JACQUELINE ANDERSON BROWN, et al., )

)

Defendants. )

)

THIS MATTER is before the Court on Defendant Jacqueline Anderson Brown’s Motion

to Dismiss, (Doc. No. 5); Plaintiff Anthony T. Brown’s Motion to Remand, (Doc. No. 7); and

Plaintiff’s Objections, (Doc. No. 18), to Magistrate Judge Susan C. Rodriguez’s Memorandum and

Recommendation (“M&R”), (Doc. No. 17). These matters have been fully briefed, (Doc. Nos. 6,

14, 16; Doc. Nos. 8, 12, 14; Doc. Nos. 18, 19), and are ripe for review.

For the reasons set forth below, Judge Rodriguez’s M&R is AFFIRMED and ADOPTED,

Plaintiff’s Objections are OVERRULED, Plaintiff’s Motion to Remand is DENIED, and

Defendant’s Motion to Dismiss is GRANTED IN PART and REMANDED IN PART.

I. BACKGROUND

On February 13, 2023, Plaintiff filed his Complaint against Defendant in the Union County

Superior Court,1 (Doc. No. 1-1), and on April 25, 2023, Defendant removed this case to the

1 As an attorney who acknowledges that he has been licensed to practice law in the State of North Carolina

since 1986, is responsible for “managing complex business and commercial litigation matters,” and is currently

serving as the President-Elect of the North Carolina State Bar, (Doc. No. 1-1, p. 7), Plaintiff is not entitled to the same

leniency as a non-lawyer pro se party. See Diprete v. 950 Fairview Street, LLC, No. 15-0034, 2016 WL 6137000, at

*4 n.4 (W.D. Va. Oct. 21, 2016), appeal dismissed, No. 16-2235, 2017 WL 2241808 (4th Cir. May 22, 2017)

(collecting cases); see also Hillman v. Flagstar Bank, FSB, No. 8:20-cv-02486-PX, 2021 WL 3681155, at *1 n.1 (D.

Md. Aug. 19, 2021) (citing Diprete, 2016 WL 6137000; Gordon v. Gutierrez, No. 6-861, 2006 WL 3760134, at *1 n.1

(E.D. Va. Dec. 14, 2006) (collecting cases)).

Western District of North Carolina on the basis of diversity jurisdiction. (Doc. No. 1, p. 2). In his

Complaint, Plaintiff asserts state law claims for: (1) declaratory judgment, (2) abuse of process,

(3) defamation – libel per se, and (4) unfair and deceptive trade practices. (Doc. No. 1-1, p. 17–

22). Neither party disputes the M&R’s discussion of the Factual and Procedural History.2

Accordingly, the Court hereby ADOPTS and incorporates by reference Section I of the M&R as

if fully set forth herein. (Doc. No. 17, p. 1–2).

In short, Plaintiff and Defendant were married from 1988 to 2021. (Doc. No. 1-1, p. 6).

Following their divorce, Plaintiff filed a civil complaint in state court against Defendant’s brother

and best friend, alleging Defendant’s decision to legally separate from, and ultimately divorce,

Plaintiff was the result of a conspiracy between Defendant, her brother, and her friend. (Id. at 9)

(“Conspiracy Matter”). Though Defendant was “alleged to have been an equal co-conspirator,”

she was not joined as a party in the Conspiracy Matter. (Id.).

In pursuing his claims in the Conspiracy Matter for civil conspiracy, fraud, breach of

fiduciary duty, invasion of privacy, unfair and deceptive trade practices, and accounting, Plaintiff

served a subpoena on Sprint Communications Company Limited Partnership, (“Sprint,”) for the

production of Defendant’s cell phone records—including, among other information, her call and

text logs, IP connection logs, billing statements, subscriber information, and cell site

information—from January 1, 2015, through January 31, 2022. (Doc. No. 1-1, p. 64–67).

Thereafter, Defendant served her Objections to the subpoena on Sprint and Plaintiff arguing the

subpoena was unreasonable, spiteful, and intended to harass her, (“Subpoena Objection”). (Doc.

No. 1-1, p. 72). This objection serves as the sole basis of Plaintiff’s claims against Defendant in

2 In his Objections, Plaintiff states he “objects to the erroneously decided findings, conclusions, and

recommendations of the M&R,” (Doc. No. 18, p. 1), upon review of his contentions, it is clear that Plaintiff takes issue

not with the M&R’s factual or procedural summary, but rather with the M&R’s legal statements, conclusions, and

recommendation. Id. The Court discusses each of Plaintiff’s contentions below.

the instant matter. Specifically, Plaintiff seeks declaratory judgment that Defendant did not have

standing as a non-party to object to the Sprint Subpoena in the Conspiracy Matter. (Doc. No. 1-1,

p. 18). He further alleges that Defendant’s Subpoena Objection constituted an abuse of process,

and her defamatory statements therein constituted libel per se and unfair and deceptive trade

practices, all of which make Defendant liable for compensatory, punitive, and treble damages, as

well as costs, attorney fees, and pre- and post-judgment interest. (Doc. No. 1-1, p. 17–23).

On May 16, 2023, Defendant filed her Motion to Dismiss and Memorandum in Support,

(Doc. Nos. 5, 6), arguing dismissal is appropriate for two reasons. First, she asserts that pursuant

to Rule 12(b)(1) of the Federal Rules of Civil Procedure, this Court lacks subject matter jurisdiction

over Plaintiff’s First Claim for Relief for Declaratory Judgment. Second, she contends that

pursuant to Rule 12(b)(6), Plaintiff failed to state a claim for relief for his Second, Third, and

Fourth Claims for Abuse of Process, Defamation – Libel Per Se, and Unfair and Deceptive Trade

Practices. Plaintiff filed his Memorandum of Law in Opposition to Defendant’s Motion to Dismiss

on June 13, and Defendant filed her Reply in Support of her Motion to Dismiss on June 27. (Doc.

Nos. 14, 16).

On May 19, 2023, Plaintiff filed his Motion to Remand Pursuant to Fed. R. Civ. P. 12(b)(1)

and 28 U.S.C. § 1447(c) and Memorandum in Support, (Doc. Nos. 7, 8), alleging remand is

necessary because Defendant’s removal was improper. He argues Defendant failed to satisfy her

burden of demonstrating both that complete diversity existed between the parties and the amount

in controversy exceeded $75,000, and as a result, this Court lacks subject matter jurisdiction over

this case. Defendant filed her Memorandum of Law in Opposition to Plaintiff’s Motion to Remand

on June 1, and Plaintiff filed his Reply Memorandum of Law in Support on June 6, 2023. (Doc.

Nos. 12, 13).

On August 4, 2023, Magistrate Judge Rodriguez entered her M&R, (Doc. No. 17),

regarding Plaintiff’s Motion to Remand, (Doc. No. 7). Judge Rodriguez determined: (1) Plaintiff’s

request for at least $25,000 in compensatory damages, trebled, plus attorney’s fees, is “greater than

the $75,000 jurisdictional threshold”; (2) Plaintiff’s post-removal stipulation that he would neither

seek, nor accept, damages in excess of $75,000, (Doc. No. 8-1), did not defeat diversity

jurisdiction; (3) Plaintiff is a citizen of North Carolina; and (4) despite Plaintiff’s arguments

otherwise, “there can be little doubt Defendant is a South Carolina citizen.” (Doc. No. 17, p. 4–5).

Accordingly, Judge Rodriguez concluded Defendant met her burden of demonstrating, by a

preponderance of the evidence, that at the time of removal, complete diversity existed between the

parties and the amount in controversy exceeded $75,000. Therefore, Judge Rodriguez

recommended that this Court deny Plaintiff’s Motion to Remand.

Accordingly, the Court will address each pending Motion in turn.

II. STANDARDS OF REVIEW

A. Memorandum and Recommendation

A district court may refer a nondispositive motion to a magistrate judge for a

recommendation pursuant to Federal Rule of Civil Procedure 72(a). See FED. R. CIV. P. 72(a).

Here, both parties agree this matter is nondispositive. A party may file written objections to a

magistrate judge’s M&R within fourteen days of being served with a copy of the M&R.

28 U.S.C § 636(b)(1). This Court is then tasked with reviewing objections to the M&R to

determine whether the order “is clearly erroneous or is contrary to law.” FED. R. CIV. P. 72(a). A

magistrate judge’s factual findings are clearly erroneous when a court is “left with the definite and

firm conviction that a mistake has been committed.” TFWS, Inc. v. Franchot, 572 F.3d 186, 196

(4th Cir. 2009) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).

Although parties are permitted to file written objections to a magistrate judge’s M&R,

‘“[a]ny written objections must specifically identify the portions of the Report and

Recommendation to which objections are made and the basis for such objections.”’ Morgan v.

N.C. Dep’t of Health and Human Servs., 421 F. Supp. 2d 890, 893 (W.D.N.C. 2006) (emphasis in

original) (quoting Thomas v. Westinghouse Savannah River Co., 21 F. Supp. 2d 551, 560

(D.S.C. 1997)). Further, “a general objection . . . is not sufficient—‘a party must object to the

[magistrate’s] finding or recommendation . . . with sufficient specificity so as reasonably to alert

the district court to the true ground for the objection.’” United States v. Benton, 523 F.3d 424, 428

(4th Cir. 2008) (quoting United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007)) (emphasis

added); see also Jones v. Hamidullah, No. 2:05-2736, 2005 WL 3298966, at *3 (D.S.C. Dec. 5,

2005) (noting a petitioner’s objections to a magistrate judge’s report “on the whole are without

merit in that they merely rehash [the] general arguments and do not direct the court’s attention to

any specific portion of the [report]”). General or conclusory objections result in waiver of appellate

review. Tyler v. Beinor, 81 F. App’x 445, 446 (4th Cir. 2003) (per curiam); see also United States

v. Schronce, 727 F.2d 91, 93–94 (4th Cir. 1984).

B. Motion to Dismiss

1. Rule 12(b)(1) of the Federal Rules of Civil Procedure

“The United States Courts are courts of specifically limited jurisdiction and may exercise

only that jurisdiction which Congress has prescribed.” Chris v. Tenet, 221 F.3d 648, 655 (4th Cir.

2000) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); Lovern v.

Edwards, 190 F.3d 648, 654 (4th Cir. 1999). Before a court can rule on any other issue, “questions

of subject matter jurisdiction must be decided first, because they concern the court’s very power

to hear the case.” Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999) (internal

quotation marks omitted). If there is doubt whether such jurisdiction exists, the court must “raise

lack of subject-matter jurisdiction on its own motion,” without regard to the parties’ positions. Ins.

Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982); see also Hertz

Corp. v. Friend, 559 U.S. 77, 94 (2010) (noting federal courts are independently obligated to

determine whether subject matter jurisdiction exists, “even when no party challenges it”);

Mansfield, Coldwater & Lake Mich. Ry. v. Swan, 111 U.S. 379, 382 (1884).

Thus, it is well-settled that lack of subject matter jurisdiction may be raised at any time by

a litigant or the court sua sponte. See, e.g., id. at 384. Finally, “[n]o party can waive the defect, or

consent to [subject matter] jurisdiction. No court can ignore the defect; rather a court, noticing the

defect, must raise the matter on its own.” Wis. Dept. of Corrs. v. Schacht, 524 U.S. 381, 389 (1998)

(internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009) (“Subject-matter

jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt.”).

Federal district courts retain original subject matter jurisdiction when, among other specific

scenarios expressed in Title 28 of the United States Code, either (1) the complaint raises a federal

question under 28 U.S.C. § 1331, or (2) the requirements for amount in controversy and diversity

of citizenship are met under 28 U.S.C. § 1332. The party asserting jurisdiction bears the burden of

proving subject matter jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).

2. Rule 12(b)(6) of the Federal Rules of Civil Procedure

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a motion may be

dismissed for failure to state a claim upon which relief can be granted. A Rule 12(b)(6) inquiry is

limited to determining if the pleader’s allegations constitute “a short and plain statement of the

claim showing the pleader is entitled to relief.” Iqbal, 556 U.S. at 678. To survive a 12(b)(6) motion

to dismiss, Plaintiff’s “complaint must contain sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). Facial plausibility exists only when the factual content allows a court to draw

the “reasonable inference” that the defendant is liable for the misconduct. Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 556). The Court must draw all reasonable factual inferences in favor

of the party asserting the claim. Priority Auto Grp., Inc. v. Ford Motor Co., 757 F.3d 137, 139 (4th

Cir. 2014).

In a Rule 12(b)(6) analysis, the Court must separate facts from legal conclusions, as mere

conclusions are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678. Importantly,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. However, well-pled factual allegations are entitled to a presumption

of truth, and the court should determine whether the allegations plausibly give rise to an entitlement

to relief. Id. at 679.

III. DISCUSSION

A. The Memorandum and Recommendation for Plaintiff’s Motion to Remand

Plaintiff seeks de novo review of the Magistrate Judge’s recommendation to deny his

Motion for Remand. Plaintiff does not contest the Magistrate Judge’s finding that Defendant is a

citizen of South Carolina. Rather, Plaintiff objects specifically to the Magistrate Judge’s

determination that the amount in controversy requirement for federal diversity jurisdiction is

satisfied. Under clear error review, the Magistrate Judge’s recommendation is appropriate. For the

reasons below, the Magistrate Judge’s M&R is AFFIRMED and ADOPTED, Plaintiff's

Objections are OVERRULED, and Plaintiff’s Motion to Remand is DENIED.

1. Amount in Controversy

Plaintiff objects to the Magistrate Judge’s determination that the amount in controversy

requirement of $75,000 is satisfied for purposes of diversity jurisdiction. Specifically, Plaintiff

argues the Magistrate Judge erred in her use of the “plain language of [Plaintiff’s] Complaint” to

calculate the amount in controversy. (Doc. No. 18, p. 3).

“Typically, an action in a state court can be removed to [federal court] only if it might have

been brought in federal court originally.” Sonoco Prods. Co. v. Physicians Health Plan, Inc., 338

F.3d 366, 379 (4th Cir. 2003) (internal quotation marks omitted) (alteration in original). The party

seeking removal bears the burden of demonstrating that the district court has original jurisdiction.

Id. “If federal jurisdiction is doubtful, a remand [to state court] is necessary.” Mulcahey v.

Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (citation omitted).

Federal courts are courts of limited jurisdiction. When subject matter jurisdiction is based

on diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(1), the parties’ citizenship must be

completely diverse—such that “no plaintiff may be a citizen of the same state as any defendant”—

and “the amount in controversy must exceed $75,000, exclusive of interest and costs.” Elliott v.

Am. States Ins. Co., 883 F.3d 384, 394 (4th Cir. 2018) (citing 28 U.S.C. § 1332(a)(1)). The

“amount in controversy” is equivalent to the amount at stake in the litigation, meaning courts must

consider the possible recovery based on plaintiffs’ claims, not the probable recovery. See Bell v.

Preferred Life Assur. Soc. of Montgomery, Ala., 320 U.S. 238, 240–41 (1943) (suggesting the

relevant figure for the amount in controversy requirement is the amount possibly recoverable based

on a plaintiff’s claims).

Generally, the amount claimed by the plaintiff in good faith controls the amount in

controversy determination. See 28 U.S.C. § 1446(c)(2); see also JTH Tax, Inc. v. Frashier, 624

F.3d 635, 638 (4th Cir. 2010) (“Courts generally determine the amount in controversy by reference

to the plaintiff’s complaint.”). “If a complaint does not allege a specific amount of damages, the

removing defendant must prove by a preponderance of the evidence that the amount in controversy

exceeds [$75,000].” Francis v. Allstate Ins. Co., 709 F.3d 362, 367 (4th Cir. 2013) (internal

quotation marks omitted) (alteration in original). In North Carolina, plaintiffs are prohibited from

pleading an exact amount of claimed damages, and thus, a determination of the amount of

controversy may not be possible from the face of the complaint. See N.C. GEN. STAT. § 1A-1.

Under such circumstances, a court may consider “any evidence of the amount in controversy.”

Gwyn v. Wal-Mart Stores, Inc., 955 F. Supp. 44, 46 (M.D.N.C. 1996). However, if a court can

determine the amount in controversy from the face of the complaint, the standard rule still applies.

As the Magistrate Judge determined, the plain reading of the Complaint makes clear the

amount in controversy requirement is met. (Doc. No. 17, p. 3–4). While the Complaint does not

include a specific amount in controversy as to comply with Rule 8(a)(2), it does list all damages

sought. (Doc. No. 1-1, p. 22–23). Importantly, Plaintiff seeks “damages in an amount to be

determined and greater than $25,000” and “[t]reble damages and attorney fees against Brown as

allowed by North Carolina’s Unfair and Deceptive Trade Practices Act.” (Id.) (emphasis added)

The Court agrees with the Magistrate Judge’s finding that “[c]ompensatory damages of at least

$25,000, then trebled plus attorney’s fees are greater than the $75,000 jurisdictional threshold.”

(Doc. No. 17, p. 4). Even if Plaintiff recovers no attorney’s fees due to his status as a pro se

litigant,3 the amount in controversy is met as the language of the Complaint clearly identifies

damages sought “greater than $25,000” with the potential for treble damages. (Doc. No. 1-1, p.

22–23). Because the amount in controversy exceeds $75,000 on the basis of Plaintiff’s complaint,

3As noted by the Court in footnote one (1), supra, Plaintiff is a pro se litigant who is also a lawyer.

Nevertheless, the United States Supreme Court has held that pro se litigants, including those who are attorneys, are

not entitled to recover attorney’s fees. Kay v. Ehrler, 499 U.S. 432, 435–38 (1991).

the Court need not further consider whether Defendant has proven by a preponderance of the

evidence the amount in controversy. See Francis, 709 F.3d at 367.

2. Plaintiff’s Post-Removal Affidavit and Stipulation

Plaintiff objects to the Magistrate Judge’s determination that Plaintiff’s post-removal

stipulation does not defeat jurisdiction. (Doc. No. 18, p. 1). Plaintiff argues his post-removal

stipulation, stating he would not seek damages in excess of $75,000, is binding and should be

considered by the Court in assessing the amount in controversy. (Id.) However, Plaintiff’s

argument fails.

A party’s stipulation can be enforceable if it is “a formal, truly binding, pre-removal

stipulation signed by counsel and his client explicitly limiting recovery.” McCoy v. Erie Ins. Co.,

147 F. Supp. 2d 481, 485 (S.D.W.Va. 2001); see also Green v. Caterpillar Inc., No. 2:14-CV-26,

2014 WL 4798705, at *3 (W.D.N.C. Sept. 26, 2014). Additionally, “[t]he stipulation should be

filed contemporaneously with the complaint.” McCoy, 147 F. Supp. 2d at 486. “The Fourth Circuit

has adopted a general rule regarding the effect of stipulations decreasing the amount in controversy

after a complaint has been filed or after a case has been removed when the amount in controversy

is plainly stated in the complaint.” Progressive W. Ins. Co. v. Morrissey, No. 2:21-1257, 2021 WL

3275883, at *2 (D.S.C. July 29, 2021) (citing JTH Tax, Inc. v. Frashier, 624 F.3d 635, 638 (4th

Cir. 2010)). In such instances, “[c]ourts generally determine the amount in controversy by

reference to the plaintiff’s complaint.” Morrissey, 2021 WL 3275883, at *2 (citing Frashier, 624

F.3d at 638). Meaning, post-removal limits or waivers on damages claims cannot defeat

jurisdiction. See Cargo Logistics Servs. Corp. v. XTRA Lease, LLC, No. 3:12-CV-832, 2013 WL

789744, at *2 (W.D.N.C. March 4, 2013). Nevertheless, where the initial complaint does not

specify an amount in controversy, a post-removal stipulation limiting damages may be considered

as a clarification of an ambiguous complaint. See Stanley v. Auto-Owners Ins. Co., 423 F. Supp.

3d 225, 229 (D.S.C. 2019) (collecting cases).

Here, Plaintiff filed his Complaint on February 13, 2023, with no mention of an intent to

limit the damages sought to less than the amount in controversy requirement. Then, on May 19,

2023, Plaintiff filed a Motion to Remand and Memorandum in Support which included an affidavit

from Plaintiff stipulating for the first time that he will not seek damages in excess of $75,000.

(Doc. No. 8-1, p. 2–3). Thus, Plaintiff’s stipulation is post-removal. Though the stipulation may

be considered to clarify an ambiguous complaint, it is not necessary here. As discussed above, the

plain reading of the Complaint makes clear the amount in controversy requirement is met. (Doc.

No. 17, p. 3–4). Plaintiff’s Motion to Remand must be DENIED.

B. Defendant’s Motion to Dismiss

The Court now turns to Defendant’s Motion to Dismiss, (Doc. No. 5), wherein Defendant

seeks dismissal of Plaintiff’s Complaint pursuant to both Rule 12(b)(1) and Rule 12(b)(6) of the

Federal Rules of Civil Procedure. Accordingly, the Court will address each ground for dismissal

in turn below.

1. Lack of Subject Matter Jurisdiction

The first claim for relief in Plaintiff’s Complaint seeks a declaratory judgment “to declare

rights, status, and other legal relations of Plaintiff and Brown at issue herein.” (Doc. No. 1-1, p.

18). Defendant moves for dismissal of the claim, arguing this Court lacks subject matter

jurisdiction as a result of Plaintiff’s failure to meet the requirements set out in the federal

Declaratory Judgment Act (“DJA”). 28 U.S.C. § 2201.

Pursuant to the DJA, a district court “may declare the rights and other legal relations of

any interested party seeking such declaration, whether or not further relief is or could be sought.”

Aetna Cas. & Sur. Co. v. Ind-Com Elec. Co., 139 F.3d 419, 421 (4th Cir. 1998). For a federal court

to properly exercise jurisdiction in a declaratory judgment proceeding, three elements must be met:

(1) the complaint alleges an actual controversy between the parties of sufficient immediacy and

reality to warrant issuance of a declaratory judgment; (2) the court possess an independent basis

for jurisdiction; and (3) the court does not abuse its discretion in its exercise of jurisdiction. Volvo

Const. Equipment N.A., Inc. v. CLM Equipment Co., 386 F.3d 581, 592 (4th Cir. 2004). “If a

district court, in the sound exercise of its judgment, determines after a complaint is filed that a

declaratory judgment will serve no useful purpose, it cannot be incumbent upon that court to

proceed to the merits before staying or dismissing the action.” Witton v. Seven Falls, Co., 515 U.S.

277, 288 (1995). Courts have used this discretion to decline to address declaratory judgment claims

that are duplicative of other claims in the complaint. See e.g., Laera v. Rosenbaum, No. 3:15-CV-

371, 2016 WL 6775638, at *5 (W.D.N.C. Nov. 15, 2016); Federal Nat'l Mortg. Ass'n v. K.O.

Realty, Inc., No. 3:13-CV-2781, 2014 WL 3900619, at *8 (N.D. Tex. Aug. 8, 2014); Takeda

Pharm. Co. v. Mylan Inc., 62 F. Supp. 3d 1115, 1122 (N.D. Cal. 2014).

Here, the basis for Plaintiff’s request for declaratory judgment mirrors the other allegations

in the Complaint. The legal questions raised by the declaratory judgment are, thus, imbedded

within Plaintiff’s second, third, and fourth claims for relief (abuse of process, libel per se, and

unfair and deceptive trade practices). Namely, a declaration as to Defendant’s legal standing to

object in the Brown v. Anderson matter would inherently address legal elements of Plaintiff’s

remaining claims. Therefore, Plaintiff’s request for declaratory judgment is duplicative and serves

no useful purpose. For this reason, the Court exercises its discretion to decline to address Plaintiff’s

declaratory judgment claim. Accordingly, Plaintiff’s claim seeking a declaratory judgment is

DISMISSED WITHOUT PREJUDICE. Defendant’s Motion to Dismiss as to Plaintiff’s claim

for declaratory judgment is DENIED as moot.

2. Failure to State a Claim

Plaintiff’s Complaint seeks damages for Defendant’s alleged (1) abuse of process, (2) libel

per se, and (3) unfair and deceptive trade practices. Defendant moves to dismiss each alleged claim

arguing that Plaintiff has failed to state a claim upon which relief can be granted. Accordingly, the

Court begins its analysis below with Plaintiff’s libel per se claim.

i. Libel Per Se

To recover for defamation, a plaintiff must allege that the defendant caused injury to the

plaintiff by making false, defamatory statements of or concerning the plaintiff, which was

published to a third party. Craven v. Cope, 656 S.E.2d 729, 732 (N.C. Ct. App. 2008). Written

defamation constitutes libel per se when (1) the statement is “subject to only one interpretation”

“when considered alone without innuendo, colloquium or explanatory circumstances” by

“ordinary people” and (2) that interpretation (i) “charges that a person has committed an infamous

crime”; (ii) “charges a person with having an infectious disease”; (iii) “tends to impeach a person

in that person’s trade or profession”; or (iv) “otherwise tends to subject one to ridicule, contempt

or disgrace.” Renwick v. News & Observer Publ’g Co., 312 S.E.2d 405, 409 (N.C. 1984). “In

North Carolina, [w]hether a publication is libelous per se is a question of law for the court.”

Eshelman v. Puma Biotechnology, Inc., 2 F.4th 276, 281 (4th Cir. 2021) (quoting Boyce & Isley,

PLLC v. Cooper, 568 S.E.2d 893, 899 (N.C. Ct. App. 2002)).

Additionally, it is well established that defamatory statements made during a judicial

proceeding are absolutely privileged and cannot support a civil action for defamation. Scott v.

Statesville Plywood & Veneer Co., 81 S.E.2d 146, 148 (N.C. 1954); Jarman v. Offutt, 80 S.E.2d

248, 251 (N.C. 1954). The absolute privilege applies where (1) the statements are made during the

course of a judicial proceeding, (2) they are sufficiently relevant to the judicial proceeding, and

(3) the claim is based upon the allegation that the statement at issue is false, fraudulent, or

misleading. N.C. Mut. Life Ins. Co. v. Stamford Brook Capital, LLC, No. 1:16CV1174, 2019 WL

4739539, at *4 (M.D.N.C. Sept. 27, 2019). “If [the statements are] so related to the subject matter

of the controversy that it may become the subject of inquiry in the course of the trial, the rule of

absolute privilege is controlling.” Scott, 81 S.E.2d at 149. If, however, the statements are “so

palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt its

irrelevancy or impropriety”, the privilege will not be applied. Id. North Carolina courts have

defined the phrase “judicial proceeding” broadly. Harris v. NCNB Nat. Bank of N.C, 355 S.E.2d

838, 842 (N.C. Ct. App. 1987).

Here, Plaintiff’s libel per se claim stems from Defendant’s objections to the Sprint

Subpoena which Defendant submitted to Sprint and the parties in Brown v. Anderson—a judicial

proceeding.4 Defendant’s subpoena objections specifically questioned Plaintiff’s intentions for

both filing the Brown v. Anderson lawsuit and Plaintiff’s intentions for requesting Defendant’s

phone records. (Doc. No. 1-1, p. 72–73). Plaintiff has plainly alleged that Defendant’s statements

are false. (Doc. No. 1-1, p. 21). Furthermore, the statements are sufficiently relevant to the Brown

v. Anderson proceeding. Plaintiff’s Sprint Subpoena sought a wide variety of records from

4 Plaintiff incorrectly cites Topping v. Myers, 270 N.C. App. 613 (2020) and Bouvier v. Porter, 279 N.C.

App. 528 (2021) for the proposition that “[p]rivilege is afforded to attorneys participating in and serving as counsel

of record in the judicial proceeding at issue, not to non-parties thereto.” (Doc. No. 14, p. 13) (emphasis added). Rather,

the North Carolina Court of Appeals in Topping chose not to extend privilege to “statements made by counsel during

an out-of-court press conference” because “[a] press conference to the media is not communication between the

parties, their counsel, nor with or concerning the court.” Topping, 270 N.C. App. at 624. As for Bouvier, the allegedly

defamatory statements were prepared by the Law Firm Defendants without consultation with or for a client. Bouvier,

279 N.C. App. at 546–47. Then, the Law firm Defendants recruited individual protestors who were left to “initiate

and prosecute the actual protest proceedings pro se.” Id. at 547. This is distinct from the manner in which Defendant’s

objections were made and disseminated, making Defendant more akin to Porter who the Court of Appeals held was

protected by the privilege.

Defendant’s cellphone use over a seven-year period including: all billing statements; all incoming

and outgoing call logs; all incoming and outgoing text logs; all IP connection logs; all call detail

records/direct connect detail; all cell site information; and all subscriber information. (Doc. No.

1-1, p. 67). While a party generally lacks standing to challenge a subpoena issued to a third party,

a movant will have standing to object to such subpoenas when a privilege, proprietary interest, or

personal interest exists in the subpoenaed matter. See United States v. Idema, 118 F. App’x 740,

744 (4th Cir. 2005). Unfortunate for Defendant, there is no established privacy interest in

“telephone bills, invoices, incoming and outgoing call records, [and] incoming and outgoing text

messages.” Corsair Special Situations Fund, L.P. v. Engineered Framing Sys., Inc., No. 09-1202-

PWG, 2011 WL 3651821, at *2–4 (D. Md. Aug. 17, 2011). Though, it remains unclear as to what

extent Defendant may rightfully have a privacy interest in her cell site information. Regardless, a

“court may, for good cause, issue an order to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense, including . . . limiting the scope of

disclosure or discovery to certain matters.” FED. R. CIV. P. 26(c)(1)(D). Therefore, irrespective of

the merits of Defendant’s objections, Defendant raised valid personal privacy concerns related to

the potential harassment and oppression which probing and disseminating seven years of cellphone

records may cause. Ultimately, the scope of Defendant’s cellphone records is relevant to the

underlying controversy as the discovery sought by Plaintiff was central to the alleged claims of

conspiracy and fraud. Thus, the Defendant’s objections meet the requirements for absolute

privilege. Accordingly, Defendant’s Motion to Dismiss is GRANTED as to Plaintiff’s libel per se

claim.

ii. Unfair and Deceptive Trade Practices

North Carolina's Unfair and Deceptive Trade Practices Act (“UDTPA”) is a broad statute

with expansive language encompassing various types of unfair trade or business practices. N.C.

GEN. STAT. § 75–1.1; see also Drouillard v. Keister Williams Newspaper Servs., Inc., 423 S.E.2d

324, 326–27 (N.C. Ct. App. 1992) (rejecting the notion that, under the UDTPA, conduct must be

specifically prohibited by statute). Ultimately, a determination of whether a practice is unfair or

deceptive requires consideration of the facts on a case-by-case basis.

To withstand a motion to dismiss on a claim for UDTP under North Carolina law, a plaintiff

must plausibly allege three elements: (1) an unfair or deceptive act or practice, (2) in or affecting

commerce, which (3) proximately caused actual injury to the claimant. See Ellis v. Northern Star

Co., 388 S.E.2d 127, 131 (N.C. 1990). In a business setting, libel per se “is an unfair or deceptive

act in or affecting commerce in violation of N.C.G.S. § 75–1.1, which will justify an award of

damages under N.C.G.S. § 75–16 for injuries proximately caused.” Id. at 130–31.

Here, Plaintiff’s UDTPA claim is entirely based on the premise that Defendant’s objections

constitute libel per se. (Doc. No. 1-1, p. 18). As the Court explained above, Defendant’s objections

were privileged and cannot be the basis for a civil claim of libel per se. By extension, Defendant’s

privileged conduct cannot support a UDTPA claim. Therefore, Defendant’s Motion to Dismiss is

GRANTED as to Plaintiff’s UDTPA claim.

iii. Discretion over Retaining Jurisdiction

In the absence of Plaintiff’s claims dismissed by the Court—specifically, unfair and

deceptive trade practices—the amount in controversy is clearly insufficient to support federal

diversity jurisdiction. As such, the Court declines in the exercise of its discretion to retain

jurisdiction over this case.

“[I]f some event subsequent to the complaint reduces the amount in controversy, such as

the dismissal of one count based on the defendant’s answer, the court must then decide in its

discretion whether to retain jurisdiction over the remainder of the case.” Shanaghan v. Cahill, 58

F.3d 106, 112 (1995). The Fourth Circuit in Shanaghan v. Cahill discussed when it may be

appropriate to dismiss state law claims when the federal basis for an action, including the amount

in controversy requirement, drops away. Id. at 109–12. As when a court decides whether to

exercise supplemental jurisdiction after the federal questions in a case disappear, the court may

consider: “(1) the convenience and fairness to both parties; (2) judicial economy; (3) whether the

amount claimed in the complaint was made in good faith or whether plaintiff was “consciously

relying on flimsy grounds” to get into federal court; (4) whether plaintiff would be prejudiced from

dismissal of the action, such as the existence of a statute of limitations bar; (5) the amount of time

and energy already expanded; (6) existence of an issue of state law best resolved in state court;

and (7) other case-by-case considerations.” See id. at 112–13; see also Piedmont Roofing Services,

LLC v. Nationwide Mutual Ins. Co., No. 5:22-CV-00145, 2023 WL 1466613, at *2 (W.D.N.C.

Feb. 2, 2023).

In consideration of these factors, the Court will exercise its discretion to remand the case

to state court. Plaintiff originally brought this action in state court and in fairness should be

permitted its choice of forum, especially in light of the dismissal of potential treble damages. The

good faith of Plaintiff has not been challenged as related to the amount in controversy claimed in

the complaint. Additionally, there is no added convenience to the parties by litigating in federal

court. Plaintiff’s claim of abuse of process, governed by North Carolina state law, is better resolved

at the state court level. Finally, the parties’ time and efforts will not be wasted by remanding the

case. Any unresolved claims from the motions will remain fully briefed for a determination by a

state superior court judge. Accordingly, the Court declines to retain jurisdiction over this matter

and REMANDS the remaining merits of Defendant’s motion to dismiss for the North Carolina

state courts to decide.

IV. CONCLUSION

IT IS THEREFORE ORDERED that for the foregoing reasons, Magistrate Judge

Rodriguez’s M&R, (Doc. No. 17), is AFFIRMED and ADOPTED, Plaintiff's Objections, (Doc.

No. 18), are OVERRULED, and Plaintiff's Motion for Remand, (Doc. No. 7), is DENIED.

IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss, (Doc. No. 5), is

GRANTED IN PART to the extent that Plaintiff's claims for libel per se and unfair and deceptive

trade practices are DISMISSED, and REMANDED IN PART to the extent that this Court

declines jurisdiction over Plaintiff's abuse of process claim.

IT IS FURTHER ORDERED that Plaintiff's Declaratory Judgment Claim, (Doc. No. 1-

1, p. 13), is DISMISSED as moot.

IT IS SO ORDERED.

Signed: September 27, 2023

Frank D. Whitney

United States District Judge * ey

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