FIERRO

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JESUS FIERRO, et al., )

)

Plaintiffs, )

)

v. ) 1:25cv416

)

ZACHARY TAYLOR HAMMER, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on “Defendants’ Motion to

Dismiss” (Docket Entry 8) (the “Motion”) filed by VMT

Transportation, LLC (“VMT”) and its employee, Zachary Taylor Hammer

(“Defendant Hammer”) (collectively, the “Defendants”). For the

reasons that follow, the Court should grant the Motion.

BACKGROUND

Relying on this Court’s diversity jurisdiction, Jesus and

Erika Fierro (the “Plaintiffs”), Texas residents, sued Defendants,

North Carolina residents, for negligence following an automobile

collision in Tennessee. (See Docket Entry 1 (the “Complaint”) at

1–4.)1 According to the Complaint, filed May 23, 2025 (see id. at

1):

1 Docket Entry page citations utilize the CM/ECF footer’s

pagination.

On or about May 23, 2022, in Jackson, Madison

County, Tennessee, Defendant Hammer was travelling

westbound on I-40 while simultaneously Plaintiffs were

travelling behind Defendant [Hammer]. Suddenly and

without warning, Defendant Hammer lost control of his

eighteen-wheeler and collided into a concrete barrier

causing Plaintiff[s] to collide into Defendant[ Hammer’s]

vehicle. At the time of the collision, Defendant Hammer

was employed by [VMT] and acting within the course and

scope of said employment.

As a result of the collision, Plaintiffs suffered

serious bodily injuries, [including] aggravation[s] of

pre-existing conditions.

(Id. at ¶¶ 8-9 (paragraph numbering and all-caps font omitted).)

Asserting that the applicable statute of limitations bars

Plaintiffs’ claims (see, e.g., Docket Entry 9 at 2), Defendants

moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure (the “Rules”) (see Docket Entry 8

at 1). Contending that their claims qualify as timely, Plaintiffs

opposed the Motion. (See Docket Entry 11 at ¶ 1; see also Docket

Entry 13 (replying to Plaintiffs’ response in opposition).)

DISCUSSION

I. Relevant Standards

In ruling on a Rule 12(b)(6) motion, the “[C]ourt evaluates

the complaint in its entirety . . . .” E.I. du Pont de Nemours &

Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The

Court also “may properly take judicial notice of matters of public

record.” Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th

Cir. 2009).

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Rule 12(b)(6) “tests the sufficiency of a complaint

. . . [and] does not resolve contests surrounding the facts, the

merits of a claim, or the applicability of defenses.” Republican

Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)

(emphasis added). Nevertheless, dismissal remains “appropriate

when the face of the complaint clearly reveals the existence of a

meritorious affirmative defense.” Brooks v. City of Winston-Salem,

85 F.3d 178, 181 (4th Cir. 1996). “‘A complaint showing that the

statute of limitations has run on the claim is the most common

situation in which the affirmative defense appears on the face of

the pleading,’ rendering dismissal appropriate.” Id. (quoting 5A

Wright & Miller’s Federal Practice & Procedure § 1357, at 352 (2d

ed. 1990)).

“When sitting in diversity, a federal court must apply the law

of the forum state as it is interpreted by the state’s highest

court.” Moore v. Equitrans, L.P., 27 F.4th 211, 220 (4th Cir.

2022) (internal quotation marks omitted). “If the state’s highest

court does not provide an answer, then [the C]ourt must seek

guidance from [the] intermediate state court.” F.D.I.C. ex rel Co-

op Bank v. Rippy, 799 F.3d 301, 310 (4th Cir. 2015).

II. Analysis

Relying on North Carolina General Statute Section 1-21

(“Section 1-21”), Defendants assert that, because Plaintiffs reside

outside North Carolina, Tennessee’s one-year statute of limitations

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for personal injuries, see Tenn. Code § 28-3-104(a)(1), applies to

Plaintiffs’ claims, rendering them untimely. (See Docket Entry 9

at 5.) Conversely, Plaintiffs maintain that, because Defendants

reside in North Carolina, Section 1-21 requires the application of

North Carolina’s three-year statute of limitations for personal

injuries, see N.C. Gen. Stat. § 1-52(5). (See generally Docket

Entry 11.) Defendants’ position should prevail.

As noted above, “[w]hen sitting in a diversity action, th[is

C]ourt must apply the law of the forum, including its choice of law

rules.” Fortress Re, Inc. v. Central Nat’l Ins. Co. of Omaha, 766

F.2d 163, 165 (4th Cir. 1985). “Under North Carolina choice of law

rules, [courts] apply the substantive law of the state where the

cause of action accrued and the procedural rules of North

Carolina.” Martin Marietta Materials, Inc. v. Bondhu, LLC, 241

N.C. App. 81, 83, 772 S.E.2d 143, 145 (2015) (internal quotation

marks omitted). However, the North Carolina “General Assembly

provided a legislative exception to th[at] traditional rule by

enacting [Section 1-21],” George v. Lowe’s Cos., Inc., 272 N.C.

App. 278, 280, 846 S.E.2d 787, 788 (2020), disc. rev. denied, 378

N.C. 372, 860 S.E.2d 919 (2021), which applies to “claim[s] arising

in another jurisdiction,” id.

More specifically, Section 1-21 contains a tolling provision,

which stays the running of the statute of limitations for claims

involving defendants not subject to jurisdiction in North Carolina,

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and a borrowing provision, which applies to certain claims arising

outside North Carolina, as follows:

If when the cause of action accrues or judgment is

rendered or docketed against a person, he is out of the

State, action may be commenced, or judgment enforced

within the times herein limited after the return of the

person into this State, and if, after such cause of

action accrues or judgment is rendered or docketed, such

person departs from and resides out of this State, or

remains continuously absent therefrom for one year or

more, the time of his absence shall not be a part of the

time limited for the commencement of the action or the

enforcement of the judgment. Provided, that where a cause

of action arose outside of this State and is barred by

the laws of the jurisdiction in which it arose, no action

may be maintained in the courts of this State for the

enforcement thereof, except where the cause of action

originally accrued in favor of a resident of this State.

N.C. Gen. Stat. § 1-21.

After Section 1-21’s enactment, “however, it became evident

that where a defendant was [located outside North Carolina but

nevertheless] subject to [its] jurisdiction . . . , there was no

need to toll the statute of limitations.” George, 272 N.C. App. at

281, 846 S.E.2d at 788-89 (citation omitted). Accordingly,

[t]he [North Carolina] General Assembly [in 1979]

modified [Section 1-21] to reflect this realization by

adding a second paragraph: “The provisions of this

section shall not apply to the extent that a court of

this State has or continues to have jurisdiction over the

person under the provisions of N.C. Gen. Stat. § 1-75.4.”

Id., 846 S.E.2d at 789 (brackets omitted) (quoting N.C. Gen. Stat.

§ 1-21). “This newly added language gave rise to the argument that

. . . the second paragraph invalidated both the tolling and the

borrowing provisions.” Id. Rejecting such interpretation, North

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Carolina courts have consistently “recognized that what the [state]

legislature intended was for the second paragraph to nullify the

tolling provision of [Section] 1-21, not to nullify the borrowing

provision of the statute.” Id. (internal quotation marks

omitted). “Personal jurisdiction over defendants . . . , standing

alone, [therefore], is not sufficient to place [an] action outside

[Section] 1-21.” Glynn v. Stoneville Furniture Co., 85 N.C. App.

166, 169, 354 S.E.2d 552, 553 (1987), disc. rev. denied, 320 N.C.

512, 358 S.E.2d 518 (1987). A “[p]laintiff must also be a resident

of [North Carolina] at the time his action originally accrued in

order to maintain an action in the courts of [North Carolina] which

is barred by the laws of the jurisdiction in which it arose.” Id.

Accordingly, “[a]fter careful review of [North Carolina]

precedent, the instant case is straightforward.” George, 272 N.C.

App. at 282, 486 S.E.2d at 789. The Complaint reveals that

Plaintiffs reside in Texas, Defendants reside in North Carolina,

and the collision occurred in Tennessee. (See Docket Entry 1 at

¶¶ 1-4, ¶ 8.)2 Tennessee law afforded Plaintiffs one year from the

collision to bring suit. See Tenn. Code § 28-3-

2 Public records also confirm that Plaintiffs qualified as

Texas residents at the time of the collision. See El Paso Cent.

Appraisal Dist. (Nov. 19, 2025, at 8:40:45 MST),

h t t p s : / / e p c a d . o r g / S e a r c h / D e t a i l s / 7 4 9 8 9 / 2 0 2 6

[https://perma.cc/EP28-PS2U] (choose “History”; then choose “Deed

History” from dropdown) (confirming Plaintiffs resided at the

address listed in the Complaint (see Docket Entry 1 at 5) since

2017).

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□□□ (1). Plaintiffs instead waited three years. (See Docket

Entry 1 at @ 8 (noting collision “[o]n or about May 23, 2022”), 1

(stamped as filed May 23, 2025).) ™“Plaintiff[s] failed to timely

file [their] action, . . . [which] bars [their] claim[s] not only

in [Tennessee], but also in North Carolina.” George, 272 N.C. App.

at 282, 486 S.E.2d at 789. Therefore, “because Plaintiff[s were]

not [] resident[s] of [North Carolina] at the time [their] cause of

action originally accrued, and [their] claim[s are] barred in

[Tennessee], the jurisdiction in which the[y] arose, Plaintiff[s’]

claim[s are] also barred in [North Carolina] pursuant to [Section]

1-21.” Id. (brackets and internal quotation marks omitted).

Nevertheless, Plaintiffs assert without supporting authority

that precedent from the North Carolina Court of Appeals “is not

mandated authority on this Court” (Docket Entry 11 at 94 17-18)°

3 Plaintiffs instead rely first on North Carolina Supreme

Court decisions (see Docket Entry 11 at @ 13 (citing Merchants &

Planters Nat’l Bank of Sherman _v. Appleyard, 238 N.c. 145, 77

S.E.2d 783 (1953), and Hill v. Lindsay, 210 N.C. 694, 188 S.E. 406

(1936)) decided decades before the addition of Section 1-21’s

second paragraph and relevant only to the statute’s tolling

provision and, second, federal district court decisions (see id. at

GJ 5-6, @ 8, TT 13-14 (citing Stokes v. Southeast Hotel Props.,

Ltd., 877 F. Supp. 986 (W.D.N.C. 1994)), @F 7 (citing Smith v.

Cessna Aircraft Co., 571 F. Supp. 433 (M.D.N.C. 1983)), FI 10

(citing Snyder v. Wylie, 239 F. Supp. 999 (W.D.N.C. 1965)), 47 12-

13, FTI 16 (citing Cochrane v. Turner, 582 F. Supp. 971 (W.D.N.C.

1983)) that prove unpersuasive, see, e.g., Snyder, 239 F. Supp. at

1003 (imposing a requirement on Section 1-21 that the North

Carolina Supreme Court rejected the following year, see Little v.

Stevens, 267 N.C. 328, 334, 148 S.E.2d 201, 205 (1966)), and, asa

general matter, do not constitute “binding precedent,” Camreta v.

Greene, 563 U.S. 692, 709 n.7 (2011) (internal quotation marks

(continued...)

because “[t]he North Carolina Supreme Court has not adopted [those

decisions]” (Id.). This argument misses the mark.

“[B]lecause North Carolina currently has no mechanism for

[federal courts] to certify questions of state law to its Supreme

Court, [the Court] must follow the decision[s] of an intermediate

appellate state court unless there is persuasive data that the

[state’s] highest court would decide differently.” Town of Nags

Head v. Toloczko, 728 F.3d 391, 398 (4th Cir. 2013) (internal

quotation marks and citation omitted). Repeatedly, and across many

decades, the Supreme Court of North Carolina has declined to review

decisions by the North Carolina Court of Appeals construing Section

1-21’s second paragraph as applying only to the tolling provision

and holding that plaintiffs invoking the North Carolina statute of

limitations must qualify as North Carolina residents “at the time

[their] action originally accrued,” Glynn, 85 N.C. App. at 169, 354

S.E.2d at 553. See, e.g., George, 272 N.C. App. at 281-82, 846

S.E.2d at 789; Laurent v. USAir, Inc., 124 N.C. App. 208, 211-12,

3(...continued)

omitted), on the Court. Instead, and as stated above, the Court

“must determine issues of state law as it believes the highest

court in [North Carolina] would determine them,” Bessinger v. Food

Lion, Inc., 305 F. Supp. 2d 574, 578 n.7 (D.S.C. 2003) (internal

quotation marks omitted), aff’d sub nom., Bessinger v. Food Lion,

LLC, 115 F. App’x 636 (4th Cir. 2004), including by adhering to

decisions from the “intermediate appellate state court .. . which

[are] not to be disregarded by [the C]Jourt unless it is convinced

by other persuasive data that the highest court of the state would

decide otherwise,” West v. American Tel. & Tel. Co., 311 U.S. 223,

237 (1940).

476 S.E.2d 443, 446 (1996), disc. rev. denied, 346 N.C. 178, 486

S.E.2d 205 (1997); Glynn, 85 N.C. App. at 169, 354 S.E.2d at 553-

54; Stokes v. Wilson & Redding L. Firm, 72 N.C. App. 107, 113, 323

S.E.2d 470, 475 (1984), disc. rev. denied, 313 N.C. 612, 332 S.E.2d

83 (1985). “[T]hat [the North Carolina Supreme C]ourt denied

discretionary review in [those] cases[] indicat[es] . . . its

acceptance of the[ir] rulings.” Knibbs v. Momphard, 30 F.4th 200,

232 (4th Cir. 2022) (emphasis omitted).

Under these circumstances, the Court should follow the well-

established precedent from the North Carolina Court of Appeals,

pursuant to which Tennessee’s one-year statute of limitations

applies to Plaintiffs’ claims.

CONCLUSION

Under Section 1-21, the Tennessee statute of limitations bars

Plaintiffs’ claims.

IT IS THEREFORE RECOMMENDED that the Motion (Docket Entry 8)

be granted.

This 20th day of November, 2025.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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