               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-206

                                Filed: 6 October 2015

Guilford County, No. 12 CVS 4940

WILLIAM THOMAS FOX and SCOTT EVERETT SANDERS, Plaintiffs,

             v.

MITCHELL JOHNSON, TIMOTHY R. BELLAMY, GARY W. HASTINGS, and
MARTHA T. KELLY, in their individual capacities, Defendants.


      Appeal by Defendants from order entered 25 September 2014 by Judge Ronald

E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 26

August 2015.


      Morrow Porter Vermitsky Fowler and Taylor PLLC, by John C. Vermitsky, for
      Plaintiffs.

      Wilson Helms & Cartledge, LLP, by G. Gray Wilson, Stuart H. Russell, and
      Lorin J. Lapidus, for Defendants.


      STEPHENS, Judge.


      In this appeal, we consider whether Plaintiffs’ malicious prosecution claims

under North Carolina law brought in Guilford County Superior Court are barred by

the doctrine of collateral estoppel as a result of the dismissal under Federal Rule of

Civil Procedure 12(b)(6) of certain federal law claims brought in Plaintiffs’ earlier

federal lawsuit against Defendants. Because we conclude that dismissal of federal

claims pursuant to Federal Rule 12(b)(6) is not an adjudication on the merits for
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                                          Opinion of the Court



purposes of collaterally estopping a plaintiff from raising the same issues under state

law in our State’s courts, we affirm the trial court’s order denying Defendants’ motion

to dismiss on the basis of collateral estoppel.

                               Factual and Procedural Background

          This appeal arises from claims and counterclaims of racial discrimination,

misconduct, and conspiracies by various factions in the Greensboro Police

Department (“GPD”) and the government of the City of Greensboro (“the City”). In

simplified form, some African American GPD officers alleged that a secret unit of

Caucasian GPD officers was targeting them for improper investigations based on

their race, while some of the accused Caucasian officers denied those allegations and

instead asserted that they were the victims of racially motivated false claims and

criminal charges.

          In June 2005, GPD Officer James Hinson and other African American GPD

officers accused then-GPD Chief David Wray of using certain Caucasian officers of

the Special Investigation Section (“SIS”), a subdivision of the GPD, to surveil and

target African American GPD officers. Officially, the SIS was tasked with duties such

as protecting celebrities who visited Greensboro, investigating allegations of criminal

activities by GPD officers, and handling other sensitive police matters.1




1   Prior to June 2005, Hinson himself had been investigated by the SIS for alleged police misconduct.

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                                  Opinion of the Court



       Hinson alleged that one tool the SIS used in its supposed racial misconduct

against African American GPD officers was a binder containing photographs of

African American GPD officers known as the “black book.” The SIS did in fact have

a black binder which contained photo arrays of African American GPD officers, but

SIS officers asserted that the photos were only those officers who had been on duty

at the time of an alleged sexual assault by a uniformed African American GPD officer

and that the binder was shown only to the victim of the alleged sexual assault as part

of an SIS investigation into the matter.

       After learning of Hinson’s claims, Defendant Mitchell Johnson, who was

employed by the City first as Assistant City Manager and later as City Manager, and

who also served on the City Council, met with attorneys representing some of the

African American GPD officers who made the allegations against the SIS. After that

meeting, Johnson instructed the City Attorney’s Office to initiate an investigation of

Plaintiffs William Thomas Fox and Scott Everett Sanders, two Caucasian GPD

officers alleged to have been part of the SIS group racially targeting African American

officers.   Johnson and the City Council also contracted with Risk Management

Associates, Inc., (“RMA”) to conduct a private investigation of Plaintiffs and the SIS

to supplement the official City investigation.           Plaintiffs contend that the

investigations were initiated by Johnson as part of a plan to pressure Wray into




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                                   Opinion of the Court



resigning as well as to tarnish Plaintiffs’ own reputations and ultimately remove

them from their positions with the SIS.

      In the midst of the official and private investigations, on 9 January 2006, Wray

resigned as GPD Chief, and Defendant Timothy R. Bellamy was appointed as acting

Chief and then Chief of the GPD.          A few days later, the Federal Bureau of

Investigation (“FBI”) began its own investigation into the actions of Wray and

Plaintiffs. After learning that the FBI investigation revealed no evidence of civil

rights violations by Wray, Fox, or Sanders, Bellamy directed Johnson to request an

investigation by the State Bureau of Investigation (“SBI”).        In the course of its

investigation, the SBI interviewed numerous GPD officers, including defendants

Gary R. Hastings and Martha T. Kelly. Plaintiffs contend that Bellamy and Johnson

sought the SBI investigation despite knowing that the allegations of wrongdoing by

Fox and Sanders were false. Plaintiffs further assert that Hastings and Kelly gave

false information to the SBI and destroyed and/or refused to turn over to the SBI

evidence and information that was favorable to Fox and Sanders.                The SBI

investigation concluded in the fall of 2007, and resulted in the indictment of Fox on

one count each of felonious obstruction of justice and felonious conspiracy, while

Sanders was indicted on one count of accessing a government computer without

authorization, two counts of felonious obstruction of justice, and one count of felonious

conspiracy.



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                                        Opinion of the Court



       Following a trial in February 2009, a jury found Sanders not guilty of

improperly accessing a government computer. As a result of a post-trial Brady2

motion by Sanders, previously undisclosed statements came to light, leading to the

dismissal of all the remaining charges against both Plaintiffs. Plaintiffs contend

those exculpatory statements had been intentionally and maliciously suppressed by

Hastings and Kelly, among others, as part of a conspiracy against Plaintiffs.

       Plaintiffs filed a complaint on 23 March 2010 against Johnson, Bellamy,

Hastings, and Kelly, as well as the City, RMA, and GPD officers John Slone and

Ernest Cuthbertson (collectively, “the federal defendants”) in the United States

District Court for the Middle District of North Carolina. See Fox v. City of Greensboro,

807 F. Supp. 2d 476 (2011). In their complaint, Plaintiffs alleged claims for

               violation of 42 U.S.C. § 1981 by the City and Johnson
               (Counts Two & Three); violation of the Fourth Amendment
               by the City, Johnson, Bellamy, Hastings, and Kelly
               (Counts Four & Five); and violation of 42 U.S.C. § 1985 by
               Johnson, Bellamy, Hastings, Kelly, Slone, Cuthbertson,
               and RMA (Counts Six & Seven). Plaintiffs also allege[d] a
               variety of state-law claims against various combinations of
               Defendants:          declaratory     judgment    regarding
               indemnification of litigation expenses (Count One);
               malicious prosecution (Counts Eight and Nine); abuse of
               process (Counts Ten and Eleven); negligence (Count
               Twelve); defamation (Count Thirteen); civil conspiracy
               (Counts Fourteen and Fifteen); and punitive damages
               (Count Sixteen).



2A criminal defendant is entitled to production of all government evidence favorable to him. See Brady
v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963).

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                                   Opinion of the Court



Id. at 483-84. After the federal defendants moved to dismiss, Plaintiffs sought and

were granted leave by the federal court to amend their complaint to “clarify and

amplify the factual basis for their allegations.” Id. at 501. Plaintiffs filed their

amended complaint on 1 April 2011. The federal defendants then moved to dismiss

the amended complaint, including, inter alia, Plaintiffs’ claims “that the City,

Johnson, Bellamy, Hastings, and Kelly took certain actions . . . that led to ‘unfounded’

criminal charges against Plaintiffs (which ultimately terminated in their favor) and

the arrest and detention of Plaintiffs in violation of their Fourth Amendment right to

be free from unreasonable searches and seizures.” Id. at 491. Specifically as to those

Fourth Amendment claims, “Defendants argue[d] that Plaintiffs’ vague allegations

d[id] not sufficiently indicate that each Defendant performed actions proximately

causing Plaintiffs’ indictment and arrest.” Id.

      The federal court dismissed with prejudice all of Plaintiffs’ federal law claims,

including the Fourth Amendment claims.          Id. at 501. In addition, noting that,

“[u]nder 28 U.S.C. § 1367(c), a federal district court may decline to exercise

supplemental jurisdiction over such state-law claims if the district court has

dismissed all claims over which it has original jurisdiction[,]” the federal court

“decline[d] to exercise supplemental jurisdiction over [Plaintiffs’] state-law claims[,]”

which it dismissed without prejudice. Id. at 500 (citation and internal quotation

marks omitted).



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                                       Opinion of the Court



       On 23 January 2012, Plaintiffs filed a complaint (“the state complaint”) in

Forsyth County Superior Court3 against all of the federal defendants except RMA,

and added Defendant Norman O. Rankin, another GPD officer (collectively, “the state

defendants”).      The state complaint alleged the following claims:                   malicious

prosecution, abuse of process, civil conspiracy, and punitive damages against

Johnson, Bellamy, and Hastings; malicious prosecution and abuse of process against

Kelly; civil conspiracy and punitive damages against Cuthbertson, Slone, and

Rankin; and declaratory judgment, malicious prosecution, abuse of process, and

punitive damages against the City.               Johnson, Bellamy, Hastings, and Kelly

(“Defendants”) were sued in both their official and individual capacities, while

Cuthbertson, Slone, and Rankin were sued only in their individual capacities.

       On 24 February 2012, the individual state defendants moved to dismiss all

claims against them “because [the complaint] fails to sufficiently plead a conspiracy,

abuse of process, and other matters.” See N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2013).

The City also moved to dismiss. At the motion hearing, the state defendants argued

that Plaintiffs’ claims were barred by, inter alia, the statute of limitations, the

intracorporate conspiracy doctrine, collateral estoppel, and the failure to plead

sufficient facts. On 11 July 2012, the trial court granted the motion to dismiss as to

the City and dismissed all claims against it with prejudice, a ruling that also


3By consent order entered 12 March 2012, the action was transferred from Forsyth County to Guilford
County.

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                                     Opinion of the Court



effectively eliminated Plaintiffs’ claims against the individual state defendants in

their official capacities. See Moore v. City of Creedmoor, 345 N.C. 356, 367, 481 S.E.2d

14, 21 (1997) (“[O]fficial-capacity suits generally represent only another way of

pleading an action against an entity of which an officer is an agent. Thus, where the

governmental entity may be held liable for damages resulting from its official policy,

a suit naming public officers in their official capacity is redundant.”) (citations and

internal quotation marks omitted). On 14 August 2012, the trial court entered an

order dismissing Plaintiffs’ civil conspiracy and abuse of process claims against the

remaining state defendants in their individual capacities, but “otherwise denied” the

motions to dismiss, leaving intact Plaintiffs’ malicious prosecution claims against

Defendants in their individual capacities.

      Defendants appealed from the trial court’s 14 August 2012 order, contending

that the trial court erred by failing to dismiss Plaintiffs’ malicious prosecution claims

pursuant to Rule 12(b)(6). Plaintiffs cross-appealed from the trial court’s dismissal

of their civil conspiracy and abuse of process claims. In an unpublished opinion

entered 17 December 2013, this Court dismissed the appeal and cross-appeal as

interlocutory. Fox v. City of Greensboro, 752 S.E.2d 256 (2013), available at 2013

N.C. App. LEXIS 1321, disc. review denied, 367 N.C. 494, 757 S.E.2d 919 (2014). In

its opinion, this Court noted that

             collateral estoppel is an affirmative defense that must be
             pled. However, our Supreme Court has held that the


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                                  Opinion of the Court



            denial of a motion to dismiss a claim for relief affects a
            substantial right when the motion to dismiss makes a
            colorable assertion that the claim is barred under the
            doctrine of collateral estoppel. Thus, collateral estoppel is
            properly before the trial court if that defense is specifically
            argued in a motion to dismiss made before a defendant has
            answered the plaintiff's complaint. . . .

            Where an affirmative defense is raised for the first time in
            a motion to dismiss under Rule 12(b)(6), the motion must
            ordinarily refer expressly to the affirmative defense relied
            upon. However, where the non-movant has not been
            surprised and has full opportunity to argue and present
            evidence on the affirmative defense, the failure of the
            motion to expressly refer to the affirmative defense will not
            bar consideration of the defense by the trial court. Once it
            is determined that the affirmative defense is properly
            before the trial court, dismissal under Rule 12(b)(6) on the
            grounds of the affirmative defense is proper if the
            complaint on its face reveals an insurmountable bar to
            recovery.

Id. at *6-7 (citations, internal quotation marks, and brackets omitted). This Court

then held that Defendants

            did not make any colorable claim of collateral estoppel in
            their motion to dismiss. In fact, Defendants’ motion is
            devoid of any mention of collateral estoppel. There is no
            pleading in the record asserting collateral estoppel.
            Further, Defendants’ motion does not reference the prior
            order of the District Court for the Middle District of North
            Carolina upon which they base their argument for
            collateral estoppel. Finally, . . . the complaint in the
            present case makes no mention of the federal court
            judgment.

            It is true that Defendants argued collateral estoppel at the
            hearing on their motion to dismiss, and that Plaintiffs,
            without objection, argued against collateral estoppel at


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                                  Opinion of the Court



             that hearing. It also appears that Defendants submitted a
             brief in support of their motion to dismiss in which they
             argued collateral estoppel. However, that brief does not
             appear in the record. Assuming, arguendo, the collateral
             estoppel argument was properly before the trial court, we
             do not see how the trial court could have granted
             Defendants’ motion to dismiss based upon that argument.

Id. at *8-11 (citations and internal quotation marks omitted).

      Following dismissal of the prior appeal, Defendants filed a timely answer to

Plaintiffs’ complaint on 14 November 2013, specifically pleading the factual basis for

their collateral estoppel defense and attaching and incorporating by reference the

relevant federal complaint and order upon which that defense is based. On 5 August

2014, Defendants moved for judgment on the pleadings pursuant to Rule 12(c) of our

North Carolina Rules of Civil Procedure:

             In support of this motion, [D]efendants contend that
             [P]laintiffs’ remaining claim for malicious prosecution is
             barred by the doctrine of collateral estoppel given the final
             judgment in the prior case Fox v. City of Greensboro, 807 F.
             Supp. 2d 476 (M.D.N.C. 2011) (See Answer, First Defense.)
             Specifically, the federal court previously dismissed with
             prejudice, inter alia, [P]laintiffs’ claim for malicious
             prosecution rooted in the Fourth Amendment to the
             Federal Constitution because the alleged misconduct of
             [D]efendants did not proximately cause them harm. This
             federal order and judgment therefore bar[s] [P]laintiffs’
             remaining      malicious     prosecution     claims  against
             [D]efendants because the causation element essential to
             that state law claim was previously decided against
             [P]laintiffs by virtue of the federal court’s order.




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                                    Opinion of the Court



Following a hearing on 4 September 2014, the trial court denied Defendants’ motion

specifically as to the issue of collateral estoppel by order entered 25 September 2014.

From that order, Defendants appeal.

                             Grounds for Appellate Review

      As Defendants note, this appeal is interlocutory.

             Interlocutory orders are those made during the pendency
             of an action which do not dispose of the case, but instead
             leave it for further action by the trial court in order to settle
             and determine the entire controversy. As a general rule,
             interlocutory orders are not immediately appealable.
             However, immediate appeal of interlocutory orders and
             judgments is available . . . when the interlocutory order
             affects a substantial right under [N.C. Gen. Stat.] §§ 1-
             277(a) and 7A-27(d)(1).

             . . . . [The] denial of a motion to dismiss a claim for relief
             affects a substantial right when the motion to dismiss
             makes a colorable assertion that the claim is barred under
             the doctrine of collateral estoppel. . . . Under the collateral
             estoppel doctrine, parties and parties in privity with them
             . . . are precluded from retrying fully litigated issues that
             were decided in any prior determination and were
             necessary to the prior determination. The doctrine is
             designed to prevent repetitious lawsuits, and parties have
             a substantial right to avoid litigating issues that have
             already been determined by a final judgment.

Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009)

(citations and internal quotation marks omitted). As noted supra, following dismissal

of their previous appeal, Defendants filed an answer in which they specifically

asserted collateral estoppel as a defense to Plaintiffs’ malicious prosecution claims



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and moved for judgment on the pleadings based upon their collateral estoppel

defense. Defendants having made “a colorable assertion that the claim is barred

under the doctrine of collateral estoppel[,]” the denial of their motion for judgment on

the pleadings affects a substantial right.          See id.   Accordingly, Defendants’

interlocutory appeal is properly before this Court.

                                       Discussion

      Defendants argue that the trial court erred in denying their motion for

judgment on the pleadings as to Plaintiffs’ malicious prosecution claims based on the

doctrine of collateral estoppel. We disagree.

I. Relation of the trial court’s Rule 12(c) and 12(b)(6) orders

      As a preliminary matter, we consider Defendants’ assertion that the trial

court’s August 2012 order denying their Rule 12(b)(6) motion did not bar the trial

court from adjudicating Defendants’ motion for judgment on the pleadings pursuant

to Rule 12(c). It is well established that, ordinarily, “no appeal lies from one Superior

Court judge to another; that one Superior Court judge may not correct another's

errors of law; and that ordinarily one judge may not modify, overrule, or change the

judgment of another Superior Court judge previously made in the same action.”

Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). The only

exception occurs when three conditions are met: (1) the subsequent order “was

rendered at a different stage of the proceeding, [(2)] the materials considered by [the



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second judge] were not the same, and [(3)] the [first] motion . . . did not present the

same question as that raised by the later motion . . . .” Smithwick v. Crutchfield, 87

N.C. App. 374, 376, 361 S.E.2d 111, 113 (1987) (citation omitted). Defendants argue

that all three of the Smithwick conditions are satisfied here.

      First, Defendants point out that a motion pursuant to Rule 12(c) may be made

only after the pleadings are closed, while a Rule 12(b)(6) motion must be made before

the pleadings are closed. See N.C. Gen. Stat. § 1A-1, Rule 12; see also Robertson v.

Boyd, 88 N.C. App. 437, 440, 363 S.E.2d 672, 675 (1988) (noting that “[t]he principal

difference between the two motions is that a motion under Rule 12(c) . . . is properly

made after the pleadings are closed while a motion under Rule 12(b)(6) must be made

prior to or contemporaneously with the filing of the responsive pleading”). Plaintiffs

counter that, because “[b]oth a motion for judgment on the pleadings and a motion to

dismiss for failure to state a claim upon which relief should be granted when a

complaint fails to allege facts sufficient to state a cause of action or pleads facts which

deny the right to any relief[,]”       id. (citations omitted), there is no “functional”

difference between the stage of the proceedings when each motion is decided. We

must reject Plaintiffs’ contention:

             As we have recognized, a complaint is subject to dismissal
             under Rule 12(b)(6) if no law exists to support the claim
             made, if sufficient facts to make out a good claim are
             absent, or if facts are disclosed which will necessarily
             defeat the claim. On the other hand, a motion for judgment
             on the pleadings pursuant to Rule 12(c) should only be


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              granted when the movant clearly establishes that no
              material issue of fact remains to be resolved and that the
              movant is entitled to judgment as a matter of law. Neither
              rule employs the same standard. It is plainly evident
              under our Rules of Civil Procedure that because a plaintiff
              has survived a 12(b)(6) motion, and thus has alleged a
              claim for which relief may be granted, his survival in the
              action is not the equivalent of the court determining that
              conflicting issues of fact exist and no party is entitled to
              judgment as a matter of law under Rule 12(c).

Cash v. State Farm Mut. Auto. Ins. Co., 137 N.C. App. 192, 201-02, 528 S.E.2d 372,

378 (2000) (citations and internal quotation marks omitted).

      Regarding the second and third Smithwick conditions, this Court’s opinion

dismissing Defendants’ previous appeal shows that different materials and questions

were considered by the trial court in ruling on the respective Rule 12(b)(6) and Rule

12(c) motions.    In ruling on Defendants’ Rule 12(b)(6) motion, the trial court

considered only Plaintiffs’ complaint and the arguments of the parties, while the later

Rule 12(c) ruling was based upon the trial court’s consideration of additional

materials:   Defendants’ answer, the federal complaint, and the federal court’s

decision.    Further, as we observed supra, this Court dismissed Defendants’

interlocutory appeal precisely because it was not persuaded by Defendants’ argument

that the trial court’s denial of their Rule 12(b)(6) motion “necessarily rejected their

argument that Plaintiffs’ malicious prosecution claims were barred by collateral

estoppel.” Fox, 2013 N.C. App. LEXIS 1321 *4. In contrast, the trial court’s Rule

12(c) order explicitly ruled on Defendants’ collateral estoppel argument. In sum, the


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                                  Opinion of the Court



Rule 12(c) order appealed from here is not an improper “overruling” by a second

superior court judge of an earlier superior court judge’s Rule 12(b)(6) order.

II. Standard of review

       “A motion for judgment on the pleadings [pursuant to Rule 12(c)] should not

be granted unless the movant clearly establishes that no material issue of fact

remains to be resolved and that he is entitled to judgment as a matter of law.” B.

Kelley Enters., Inc. v. Vitacost.com, Inc., 211 N.C. App. 592, 593, 710 S.E.2d 334, 336

(2011) (citation and internal quotation marks omitted).

             The trial court is required to view the facts and permissible
             inferences in the light most favorable to the nonmoving
             party.    All well pleaded factual allegations in the
             nonmoving party’s pleadings are taken as true and all
             contravening assertions in the movant’s pleadings are
             taken as false.       All allegations in the nonmovant’s
             pleadings, except conclusions of law, legally impossible
             facts, and matters not admissible in evidence at the trial,
             are deemed admitted by the movant for purposes of the
             motion.

Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974) (citations

omitted). We review de novo a trial court’s ruling on a motion to dismiss under Rule

12(c). Id. Further, for a Rule 12(c) motion based upon an assertion of collateral

estoppel:

             In determining what issues were actually litigated or
             determined by the earlier judgment, the court in the second
             proceeding is free to go beyond the judgment roll, and may
             examine the pleadings and the evidence if any in the prior
             action. . . . The burden is on the party asserting issue


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               preclusion to show with clarity and certainty what was
               determined by the prior judgment.

Burgess v. First Union Nat’l Bank of N.C., 150 N.C. App. 67, 75, 563 S.E.2d 14, 20

(2002) (citation, internal quotation marks, brackets, and emphasis omitted).

III. The trial court’s rejection of Defendants’ collateral estoppel defense

       Defendants’ collateral estoppel defense is based on their contention that, in its

2011 opinion dismissing, inter alia, Plaintiffs’ Fourth Amendment claims for failure

to state a claim under Federal Rule 12(b)(6), the federal court ruled against Plaintiffs

on the same issue of proximate cause applicable to their state malicious prosecution

allegations, thereby precluding re-litigation of those claims in Guilford County

Superior Court. Although we agree that both Plaintiffs’ federal Fourth Amendment

claims and their state malicious prosecution claims include the same element of

proximate cause,4 after a careful analysis of the procedural posture of the federal

case, we are not persuaded that the dismissal of the Fourth Amendment claims for

failing to meet the federal “plausibility” pleading standard means “the federal court

has already determined that [P]laintiffs cannot establish the same requisite

causation element essential to their [state malicious prosecution] claim[s].”

       “Under the doctrine of collateral estoppel, when an issue has been fully litigated

and decided, it cannot be contested again between the same parties, even if the first


4 “It is well settled that a plaintiff asserting a constitutional tort under § 1983 must, like any tort
plaintiff, satisfy the element of proximate causation.” Fox, 807 F. Supp. 2d at 492 (citation, internal
quotation marks, brackets, and ellipsis omitted).

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adjudication is conducted in federal court and the second in state court.” McCallum

v. N.C. Coop. Extension Serv. of N.C. State Univ., 142 N.C. App. 48, 52, 542 S.E.2d

227, 231 (citation omitted; emphasis added), appeal dismissed and disc. review

denied, 353 N.C. 452, 548 S.E.2d 527 (2001). In addition, “parties are precluded from

retrying fully litigated issues that were decided in any prior determination, even

where the claims asserted are not the same.” Id. at 51, 542 S.E.2d at 231 (citation

omitted). “The elements of collateral estoppel . . . are as follows: (1) a prior suit

resulting in a final judgment on the merits; (2) identical issues involved; (3) the issue

was actually litigated in the prior suit and necessary to the judgment; and (4) the

issue was actually determined.” Bluebird Corp. v. Aubin, 188 N.C. App. 671, 678, 657

S.E.2d 55, 61 (citation and internal quotation marks omitted; emphasis added), disc.

review denied, 362 N.C. 679, 669 S.E.2d 741 (2008). Thus, as an initial step, we must

determine whether the federal court’s dismissal of Plaintiffs’ claims under Federal

Rule 12(b)(6) was a final judgment on the merits that actually decided the issue of

proximate cause.

      It is well settled that “[a] dismissal under [North Carolina Rule of Civil

Procedure] Rule 12(b)(6) operates as an adjudication on the merits unless the court

specifies that the dismissal is without prejudice.” Hoots v. Pryor, 106 N.C. App. 397,

404, 417 S.E.2d 269, 274 (citations omitted), disc. review denied, 332 N.C. 345, 421

S.E.2d 148 (1992); see also N.C. Gen. Stat. § 1A-1, Rule 41(b) (2013). However, the



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federal court did not dismiss Plaintiffs’ federal claims under North Carolina Rule

12(b)(6), but rather dismissed them pursuant to Federal Rule 12(b)(6). See Fox, 807

F. Supp. 2d at 484. No North Carolina case law or statute that we have discovered

directly addresses the question of whether a dismissal under Federal Rule 12(b)(6)

operates as an adjudication on the merits so as to collaterally estop a plaintiff from

re-litigating a claim or issue in our State’s courts. Of course, if the evaluation of a

claim in light of a motion to dismiss pursuant to Federal Rule 12(b)(6) were identical

to the evaluation made in response to a motion under North Carolina Rule 12(b)(6),

it would be clear that the federal court’s dismissal had adjudicated and settled the

same issue Plaintiffs raise in their state complaint. However, our review of the

pertinent statutes and case law demonstrates that the standard under Federal Rule

12(b)(6), which the federal court here held Plaintiffs failed to meet, is a different,

higher pleading standard than mandated under our own General Statutes. In other

words, the fact that Plaintiffs’ allegations of proximate cause in the federal complaint

did not meet the pleading standard under Federal Rule 12(b)(6) does not necessarily

mean that their allegations of proximate cause would have resulted in dismissal

pursuant to North Carolina Rule 12(b)(6).

      As the federal court noted in its order, “[t]he purpose of a motion under Federal

Rule of Civil Procedure 12(b)(6) is to test[] the sufficiency of a complaint and not to

resolve contests surrounding the facts, the merits of a claim, or the applicability of



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defenses.” Id. (citation and internal quotation marks omitted; emphasis added). In

so doing, the federal court explicitly applied the so-called “plausibility” pleading

standard as enunciated by the United States Supreme Court in Bell Atl. Corp. v.

Twombly:

             Under Federal Rule of Civil Procedure 8(a)(2), a complaint
             must contain a “short and plain statement of the claim
             showing that the pleader is entitled to relief.” Although the
             complaint need only “give the defendant fair notice of what
             the . . . claim is and the grounds upon which it rests,” Bell
             Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955,
             167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355
             U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), abrogated
             on other grounds by Twombly, 550 U.S. 544, 127 S. Ct.
             1955, 167 L. Ed. 2d 929), a plaintiff’s obligation “requires
             more than labels and conclusions, and a formulaic
             recitation of the elements of a cause of action will not do,”
             id. [Federal] Rule 12(b)(6) protects against meritless
             litigation by requiring sufficient factual allegations “to
             raise a right to relief above the speculative level” so as to
             “nudge[] the[] claims across the line from conceivable to
             plausible.” Id. at 555, 570; see Ashcroft v. Iqbal, 556 U.S.
             662, 129 S. Ct. 1937, 1949-51, 173 L. Ed. 2d 868 (2009).

Id. at 484. As a prior panel of this Court has previously held, the higher federal

plausibility pleading standard differs from our State’s notice pleading standard:

             Plaintiff argues that this [C]ourt should apply the
             plausibility standard as set forth in Bell Atlantic Corp. v.
             Twombly . . . . Plaintiff has also correctly noted that to
             date, North Carolina has not adopted the plausibility
             standard set forth in Bell Atlantic for 12(b)(6) Motions to
             Dismiss. This Court does not have the authority to adopt
             a new standard of review for motions to dismiss. Instead,
             we use the following standard, which is the correct



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                                   Opinion of the Court



             standard of review as used by the North Carolina appellate
             courts:

             On a motion to dismiss pursuant to Rule 12(b)(6) of the
             North Carolina Rules of Civil Procedure, the standard of
             review is 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.
             The complaint must be liberally construed, and the court
             should not dismiss the complaint unless it appears beyond
             a doubt that the plaintiff could not prove any set of facts to
             support his claim which would entitle him to relief.

Holleman v. Aiken, 193 N.C. App. 484, 490-91, 668 S.E.2d 579, 584-85 (2008)

(citations, internal quotation marks, and brackets omitted).

      Given the difference between the federal and State pleading standards, we

must conclude that a federal court’s dismissal of claims pursuant to Federal Rule

12(b)(6) is not an adjudication on the merits for purposes of collaterally estopping a

plaintiff from raising the same or related claims under State law in our State’s courts.

See Hoots, 106 N.C. App. at 404, 417 S.E.2d at 274. In other words, a determination

that Plaintiffs’ allegations regarding proximate cause in their Fourth Amendment

claims did not pass the federal plausibility test does not automatically mean they fail

to meet the notice pleading requirements of our State. We acknowledge that the

federal court’s well-reasoned and highly detailed opinion amply demonstrates that

the allegations in Plaintiffs’ federal complaint regarding proximate cause between

Defendants’ alleged acts and Plaintiffs’ criminal prosecutions were, “to put it

charitably, sparse at best.” Fox, 807 F. Supp. 2d at 495. However, the “issue actually


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                                    FOX V. JOHNSON

                                   Opinion of the Court



litigated in the prior suit . . . and . . . actually determined” by the federal court, see

Bluebird Corp., 188 N.C. App. at 678, 657 S.E.2d at 61 (citation and internal

quotation marks omitted), was whether Plaintiffs’ pleadings met the plausibility

standard applicable to motions to dismiss pursuant to Federal Rule 12(b)(6). The

federal court’s opinion simply did not consider or address the issue of whether

Plaintiffs’ pleadings sufficiently stated a claim to survive a motion to dismiss

pursuant to the notice pleading requirements of North Carolina Rule 12(b)(6).

Accordingly, the trial court properly denied Defendants’ motion to dismiss pursuant

to Rule 12(c) based upon their assertion of collateral estoppel.

      We emphasize that our holding here is specific and limited to the sole issue

raised by Defendants in this appeal: whether Plaintiffs are collaterally estopped from

litigating their state malicious prosecution claims in North Carolina courts because

the federal court dismissed their federal “malicious prosecution” claims for failing to

meet the plausibility standard applicable to motions to dismiss pursuant to Federal

Rule 12(b)(6). We express no opinion about whether Plaintiffs’ malicious prosecution

claims were sufficiently pled under North Carolina Rule 12(b)(6). As noted by this

Court in Defendants’ previous appeal, that interlocutory issue is not before us at this

point. See, e.g., Turner, 363 N.C. at 558, 681 S.E.2d at 773.




                                          - 21 -
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                                  Opinion of the Court



      In sum, Plaintiffs are not collaterally estopped from bringing their malicious

prosecution claims under state law. Accordingly, the trial court did not err in denying

Defendants’ motion to dismiss on that basis, and its order is

      AFFIRMED.

      Judges MCCULLOUGH and ZACHARY concur.




                                         - 22 -
