# FIERRO

> District Court, M.D. North Carolina · November 21, 2025

URL: https://www.frixlaw.com/law-library/cases/11207255

## Case

- **Full name:** Jesus Fierro, et al. v. Zachary Taylor Hammer, et al.
- **Court:** District Court, M.D. North Carolina
- **Decided:** November 21, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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).
2
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
3
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,
4
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
5
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).
6
□□□ (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

9

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11207255. Public record. Not legal advice.