United States of America, EX Rel Harmsen v. Moore County Dental Care Center, et alMOTION TO DISMISS FOR FAILURE TO STATE A CLAIMM.D.N.C.January 23, 20171 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA UNITED STATES OF AMERICA, ex rel. BRANDI HARMSEN, Plaintiff, vs. MOORE COUNTY DENTAL CARE CENTER, ANNA FIELDS GOODRICH AND FAYE FIELDS, Defendant. Case No. 1:11cv179 MOTION TO DISMISS DEFENDANT’S COUNTERCLAIM COME NOW Relator Brandi Harmsen (“Relator”), who moves to dismiss Defendant Moore County Dental Care Center’s Counterclaim (“Defendant”) for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). FACTS Defendant’s Counterclaim alleges one cause of action for conversion based on North Carolina state common law. In paragraph #3, of the counterclaim, the Defendant states that Relator was terminated from employment on the same day it became aware of the alleged conversion of funds. Relator’s complaint stated that she was terminated on October 6, 2010 in paragraph 14. Defendant admitted in paragraph 14 of its answer that Relator was an employee in years 2008 and 2009. The counterclaim was filed on December 21, 2016. Case 1:11-cv-00179-TDS-JLW Document 55 Filed 01/23/17 Page 1 of 4 2 ARGUMENT Statute of Limitations N.C.G.S. §1-52(4) provides for a three-year-statute of limitations for taking, detaining, converting or injuring any goods or chattels, including action for their specific recovery. If an action is one for conversion, it is clear that subsection (4) of this section is applicable. First Investors Corp. v. Citizens Bank, Inc., 757 F. Supp. 687, 690 (W.D.N.C. 1991), aff'd, 956 F.2d 263 (4th Cir. 1992). Defendant plead in its counterclaim that the alleged conversion took place during the Relator’s employment. The Relator stated that her employment ended on October 6, 2010 and the Defendant agrees via its answer that Relator was employed by Defendant in 2008 and 2009. Since the counterclaim was filed on December 21, 2016, and this date is more than 3 years since October 6, 2010 and any date in 2008 and 2009, which is the last alleged act of conversion, the action is barred by the statute of limitations. WHEREFORE, Relator requests that this Honorable Court grant the motion to dismiss and that Defendant Moore County Dental Care Center’s Counterclaim be dismissed for being barred by the applicable statute of limitation. Respectfully submitted, Browner Law, PLLC Dated: 1/23/2017 /s/Jeremy Todd Browner By: Jeremy T. Browner, Esq. (38941) Attorney for Relator Brandi Harmsen 1709 Legion Rd., Ste. 215 Chapel Hill, NC 27517-2374 919-537-8039 Tel 919-869-1668 Fax Case 1:11-cv-00179-TDS-JLW Document 55 Filed 01/23/17 Page 2 of 4 3 jb@brownerlaw.com Case 1:11-cv-00179-TDS-JLW Document 55 Filed 01/23/17 Page 3 of 4 4 CERTIFICATE OF SERVICE I hereby certify that on January 23, 2017, I electronically filed the foregoing Relator’s Motion to Dismiss Defendant’s Counterclaim with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: Thomas M. Van Camp, Attorney for the Defendants Respectfully submitted, Browner Law, PLLC Dated: 1/23/2017 /s/Jeremy Todd Browner By: Jeremy T. Browner, Esq. (38941) Attorney for Relator Brandi Harmsen 1709 Legion Rd., Ste. 215 Chapel Hill, NC 27517-2374 919-537-8039 Tel 919-869-1668 Fax jb@brownerlaw.com Case 1:11-cv-00179-TDS-JLW Document 55 Filed 01/23/17 Page 4 of 4
