Opinion
4:98cv5-C.
January 12, 1999
MEMORANDUM OF DECISION
THIS MATTER is before the court upon defendant Chuck Quire's Motion for Summary Judgment, defendant Chuck Quire's Supplemental Motion for Summary Judgment, defendants Fasco Controls Corporation's and Bill Noblitt's Second Supplemental Motion for Summary Judgment, and plaintiff's responses to those various motions. From the outset, the court agrees with plaintiff's argument that the filing of multiple motions for summary judgment is abusive where the issues were capable of being raised in the first motion. Without finding fault in this case, the court will always assure those with few resources protection from unnecessary expense.
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). By reviewing substantive law, the court may determine what matters constitute material facts. Id. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id., at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits filed in support of a motion for summary judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979).
Surviving the first round of summary judgment were plaintiff's Title VII claim and three common-law torts, including intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent retention. At oral arguments, plaintiff conceded that the federal claims were time barred, since they were not filed within 90 days of plaintiff's receipt of the "right-to-sue" letter issued by the Equal Employment Opportunity Commission (EEOC). That claim, therefore, will be dismissed.
Defendant Chuck Quire moved at the hearing for clarification of this court's earlier Order allowing partial summary judgment. See Order of August 28, 1998, docket entry 40. For purposes of clarification, that Order applies equally to defendant Chuck Quire's Motion for Summary Judgment, docket entry 34, which mirrors the arguments presented by respective counsel in their motions and briefs.
As to the remaining state-law claims, they are also time barred. Under the reasoning of Doe v. Doe, 973 F.2d 237, 241 (4th Cir. 1992), both the intentional and negligent infliction of emotional distress claims are time barred. Pursuant to 28, United States Code, Section 1367(c)(3), exercise of supplemental jurisdiction is discretionary where, as here, the federal claims are not viable, and this court has taken care to determine whether the result would be different if plaintiff's state-law claims were dismissed without prejudice or remanded to state court. See Doe v. Doe, supra, at n. 2. While plaintiff has argued well that, under North Carolina law, a cause of action for either negligent or intentional infliction of emotional distress should not accrue until diagnosis, that argument finds no support in the reported state cases. In a supplemental brief that was allowed at the conclusion of the hearing, plaintiff cited the following cases in support of her contention that the period does not begin until diagnosis: Russell v. Adams, 125 N.C. App. 637 (1997); Waddle v. Sparks, 331 N.C. 73 (1992); and Bryant v. Thalhimer Brothers, Inc., 113 N.C. App. 1 (1993), cert. denied, 336 N.C. 71 (1994). InRussell, which is the most recent decision on the subject by a North Carolina appellate court, the North Carolina Court of Appeals held, as follows:
Plaintiff has also cited Carroll v. Litton Systems, 1990 WL 312969 (W.D.N.C.), but does not mention that such decision was reversed on appeal. In any event, Carroll does not support plaintiff's contention that the period of limitations does not begin until diagnosis.
Causes of action for emotional distress, both intentional and negligent, are governed by the three-year statute of limitation provisions of N.C. Gen. Stat. § 1-52(5) (1996). Because severe emotional distress is an essential element of both negligent and intentional emotional distress claims, the three-year period of time for these claims does not begin to run (accrue) until the "conduct of the defendant causes extreme emotional distress." In other words, these claims do not accrue until the plaintiff "becomes aware or should reasonably have become aware of the existence of the injury."
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In this case the plaintiff alleges that Dr. Adams negligently and intentionally caused her severe emotional distress when he stated to Ms. Johnson (in 1989) and to Miller (on 8 September 1992) that she was mentally ill with a borderline personality. The complaint is silent as to when plaintiff's alleged severe emotional distress manifested itself and we are thus unable to determine when the action accrued. The severe emotional distress may not have occurred until she was informed by Miller on 2 November 1994 of his 8 September 1992 conversation with Dr. Adams or at some later time, in which event the complaint was timely filed.Id., at 640-41 (citations omitted). In Russell, the trial court was faced with a motion to dismiss and the bare allegations of the complaint. Here, defendants have moved for summary judgment. Contrary to plaintiff's argument, the standard is not when the injury was diagnosed, but when plaintiff "becomes aware or should reasonably have become aware of the existence of the injury." Id., In this case, the undisputed evidence reveals that, based on her own recounting that the actions of her supervisor were so offensive as to make her immediately ill and cry uncontrollably, she should have become aware of the existence of the injury at the time of the alleged wrongdoing. As to equitable tolling, plaintiff has made a novel argument — that because she filed a claim of discrimination with the EEOC, her time for filing common-law claims should be equitably tolled. In support of that argument, she citesPittman v. Anaconda Wire and Cable Co., 408 F. Supp. 286 (E.D.N.C. 1974). Plaintiff has provided the court with no case law that allows the equitable tolling of the three-year statute of limitations in common-law claims based on filing a charge of discrimination. What plaintiff has touched on is the Supreme Court's establishment of a rule that the filing of a timely charge of discrimination with the EEOC is subject to equitable tolling, Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 393 (1982), which was later enlarged to provide that tolling could be extended to the 90-day period in which to file a suit after receiving a right-to-sue letter, Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984).
Independent of plaintiff's efforts to satisfy this court's request for supporting authority, the court has also searched the cases, both federal and state, for any decision indicating that equitable tolling is appropriate based on either a lack of diagnosis or mis-diagnosis, and none was found. As defendants' objections at the hearing made clear, this was above and beyond what was required in light of the clear mandate of Doe however, this court believes that had the post-Doe state case law developed in a manner that seriously called into question the federal interpretation of state law, this court would have been obliged as a matter of comity to either follow the contrary state law, certify the question to the circuit court, or remand to state court. Finding that a different result would not likely be obtained in state court, the undersigned is compelled to exercise its supplemental jurisdiction in the interest of judicial economy, and, following the decision of the Court of Appeals for the Fourth Circuit in Doe (which has not been questioned or distinguished by any reported case), dismiss plaintiff's negligent and intentional infliction of emotional distress claims with prejudice as filed beyond North Carolina's three-year statute of limitations. Plaintiff has not shown any act occurring within the three years immediately preceding the filing of her claim of negligent retention. No argument can be made, equitable or otherwise, for tolling that three-year limitations period.
"The very nature of diversity jurisdiction leaves open the possibility that a state court will subsequently disagree with a federal court's interpretation of state law. However, this aspect of our dual justice system does not mean that all diversity judgments are subject to revision once a state court later addresses the litigated issues. Such a rule would be tantamount to holding that the doctrine of finality does not apply to diversity judgments, a theory that has no basis in Erie or its progeny." McGheshick v. Choucair, 72 F.3d 62, 64 (7th Cir. 1995). As is indicated by subsequent decisions, the "finality" of Doe only applies to the litigants therein, and a line of state interpretations of its own laws contrary to the federal decision may be followed by a lower federal court without doing harm to Erie or the deference which is due by this court to superior federal courts. "Erie requires that, at the time of decision, the federal court apply the law of the state in which it sits," Cincinnati Ins. Co. v. Flanders Electric Motor Service, Inc., 131 F.3d 625, 629 (7th Cir. 1997); and, as here, absent state law to the contrary, this court must follow the decision of the Court of Appeals for Fourth Circuit in Doe, supra.
Having considered the arguments of respective counsel, the court will grant the remaining motions for summary judgment filed by defendants, deny all other motions pending of record, and dismiss all remaining claims with prejudice for the reasons discussed herein and for the reasons which were more fully discussed and placed on the record at the final pretrial conference. A separate judgment reflecting this decision shall be entered contemporaneously herewith.