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Beck v. City of Durham12/3/2002
lly and in their official capacity. Defendants removed the action to the United States District Court for the Middle District of North Carolina. Thereafter, defendants filed a motion to dismiss plaintiff's action. On 29 November 2000, the middle district court dismissed plaintiff's federal claims, and after declining to exercise supplemental jurisdiction over plaintiff's state law claims, dismissed those claims without prejudice. Plaintiff did not appeal the judgment.
Plaintiff reasserted his state law claims on 29 December 2000 in another complaint filed in Durham County Superior Court. In support of these claims, plaintiff's complaint contained all of the allegations previously mentioned, as well as allegations that (1) the work conditions created by McNeil forced him into retirement, (2) the City and Powell negligently promoted, supervised, and retained McNeil as Chief of Police despite having knowledge of his actions, and (3) Ewell induced a client to terminate her contract with plaintiff's private investigative business. The complaint further alleged that the City had waived its governmental immunity by purchasing liability insurance.
On 12 April 2001, defendants filed a motion seeking dismissal of plaintiff's first six claims pursuant to Rule 12(b)(6) or, in the alternative, pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. In support of their motion, defendants submitted a certified copy of the order and judgment from the middle district court and the affidavit of Laura W. Henderson ("Henderson"), an employee of the City who was familiar with the City's insurance policies. In her affidavit, Henderson stated that the City had no liability insurance that provided coverage for any of the matters alleged by plaintiff in his complaint.
On 12 April 2001, defendants noticed the hearing on their motion to dismiss for 31 May 2001 at 9:30 a.m. At 9:34 a.m. on 31 May 2001, plaintiff filed an amended complaint and served it during the hearing. The amended complaint contained a new claim alleging the City's violation of plaintiff's rights to due process and equal protection, as well as additional allegations to support plaintiff's other six claims. Nevertheless, defendants' motion to dismiss was granted in an order and judgment filed 26 June 2001. Plaintiff appeals the court's dismissal of all his claims against all defendants, with the exception of his claim for NIED against Ewell (as stated in plaintiff's brief).
I.
The first issue presented to this Court is whether the trial court properly dismissed plaintiff's action pursuant to either Rule 12(b)(6) or Rule 56.
Rule 12(b) provides, inter alia, that a trial court's review of a 12(b)(6) motion to dismiss requires a determination of "whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not." Miller v. Nationwide Mutual Ins. Co., 112 N.C. App. 295, 300, 435 S.E.2d 537, 541 (1993). Rule 12(b) further provides that if "matters outside the [complaint] are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . ." N.C. Gen. Stat. ยง 1A-1, Rule 12(b) (2001). Thus, in treating a motion as one for dismissal under Rule 56, the trial court, when viewing the evidence in the light most favorable to the non-movant, must determine whether the moving party has shown, through pleadings and affidavits, that there is no genuine issue of material fact requiring a trial and that he is entitled to judgment as a matter of law. BruceTerminix Co. v. Zurich Ins. Co., 130 N.C.
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