Posted by: Patricia Salkin | October 27, 2018

Fed. Dist. Court of NC Dismisses Counterclaims of Defamation and Conspiracy Brought by Planning Board Member

This post was authored by Matthew Loeser, Esq,

In 2010, Raley Miller sought to have a piece of property annexed by the Village of Marvin.  David Miller was the contact for Raley Miller during these negotiations with the Village of Marvin. However, several of these conversations between Miller and representatives of the Planning Board “became highly contentious.” The Village of Marvin Council eventually denied Raley Miller’s annexation application, which Miller reinitiated in 2014 with his partners David Miller, Larry Raley, and Kenneth Orndorff. Shkut personally provided some negative feedback regarding the Application, so Raley Miller and RTS Investors sent a letter via counsel to the Village of Marvin demanded Shkut “recuse herself from the Planning Board’s activities and not engage further in any manner in this rezoning application, whether as a member of the Planning Board or otherwise.” After consideration of the Application, the Planning Board voted unanimously to recommend that the Council deny the Application.

After withdrawing the Application, Orndorff began making “repeated and constant public record requests, seeking audio recordings of all Village of Marvin Planning Board meetings.” Orndorff used these recordings to write lengthy commentaries contained false statements about Shkut, which he would then distribute to the Planning Board, Village of Marvin staff, and Village of Marvin residents. Additionally, after being heckled and ridiculed by Orndorff, Shkut subsequently quit her job as Interim Planner. When the Village of Marvin Council voted to reappoint Shkut as a member of the Planning Board, Orndorff brought suit against Shkut and the Village of Marvin. Shkut then filed a First Amended Counterclaim and Third-Party Complaint alleging six different causes of action.

Shkut first contended that Movants’ political allies shared the complaint filed against her publicly in an attempt to gain an advantage over her in the Village of Marvin local elections. The Court found that Shkut failed to allege that Movants utilized the legal process to gain an advantage in a collateral matter. As such, the Court found that Movants’ smear campaign did not constitute abuse of process. Additionally, the Amended Counterclaim and Third-Party Complaint failed to specify how the fragmented quotes that were listed constituted defamation.

Shkut next alleged that Movants acted in an extreme and outrageous manner by repeatedly attending the meetings of the Planning Board while none of the Movants had business before the Planning Board. While attending these meetings, Shkut alleged that the Movants targeted Shkut for insults, video recorded her, publicly defamed, and embarrassed Shkut. However, the court found that while these actions may be described as annoying, they failed to compare to the actions described above that the North Carolina Court of Appeals held were not extreme or outrageous. Accordingly the Court held that these actions did not rise to the level of extreme and outrageous under North Carolina law. Moreover, the different instances of stalking argued by Shkut only amounted to one indictable offense for purposes of the RICO statute-one count of stalking. Thus, Shkut failed to allege the pattern of racketeering activity as required by the RICO statute.  As, all of Shkut’s underlying substantive claims had been dismissed, she could not sustain a cause of action for civil conspiracy.

Orndorff v Raley, 2018 WL 5284040 (W.D. NC 10/24/2018)

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