Salzer v. King Kong Zoo

773 S.E.2d 548, 242 N.C. App. 120, 2015 N.C. App. LEXIS 577
CourtCourt of Appeals of North Carolina
DecidedJuly 7, 2015
DocketNo. COA14–1211.
StatusPublished
Cited by1 cases

This text of 773 S.E.2d 548 (Salzer v. King Kong Zoo) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salzer v. King Kong Zoo, 773 S.E.2d 548, 242 N.C. App. 120, 2015 N.C. App. LEXIS 577 (N.C. Ct. App. 2015).

Opinion

HUNTER, JR., ROBERT N., Judge.

*120Charlene Salzer, Mary Elder, and Martha Buffington ("Plaintiffs") appeal from an order granting dismissal of their complaint for lack of subject matter jurisdiction. For the following reasons, we reverse and remand the decision of the district court.

*121I. Factual & Procedural History

In 1991, the current and former owners of King Kong Zoo incorporated the King Kong Zoological Park, Inc. in North Carolina, with Defendant John Curtis as its registered agent. King Kong Zoological Park, Inc. privately owns and operates King Kong Zoo. King Kong Zoo is an Animal Welfare Act ("AWA") licensed exhibitor of wild and domestic animals in Murphy, North Carolina.

On 30 April 2014, Plaintiffs Charlene Salzer, Mary Elder, and Martha Buffington initiated a civil action against King Kong Zoo and John Curtis ("Defendants") in Cherokee County District Court, alleging facts amounting to animal cruelty in violation of N.C. Gen.Stat. § 19A-1. According to Plaintiffs, the conditions in which King Kong Zoo kept the animals were grossly substandard. Plaintiffs moved the Cherokee County District Court for a permanent injunction against King Kong Zoo's exhibition of domestic and exotic wildlife, as well as an order terminating John Curtis's ownership and possessory rights in the animals exhibited. Defendants subsequently moved for dismissal of Plaintiffs' complaint for lack of personal jurisdiction over King Kong Zoological Park, Inc. pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure, and for lack of jurisdiction over the subject matter of the complaint pursuant to Rule 12(b)(1) of the North Carolina Rules of Civil Procedure.

The case came on for hearing on 18 August 2014. Defendants first argued insufficient service of process because Plaintiffs named an improper party-"King Kong Zoo"-instead of "King Kong Zoological Park, Inc." in their service of summons. Defendants next argued that, because the federal AWA governs exhibitors and the welfare of animals in licensed zoos, the United States District Court is vested jurisdiction in the subject matter, and such federal law preempts Plaintiffs from seeking relief under N.C. Gen.Stat. § 19A-1. In response, Plaintiffs contended N.C. Gen.Stat. § 19A-1 is not preempted, but rather works in conjunction with the federal AWA.

On 29 August 2014, the district court issued a written order denying Defendants' motion for dismissal on the grounds of personal jurisdiction. However, the court granted Defendants' motion to dismiss for lack of subject matter jurisdiction. The court stated the applicable law in this case is the federal AWA, contained in Chapter 54 of Title 7 of the United States Code because " N.C. Gen.Stat. § 19A-1 ... has no application to licensed zoo operations." Therefore, the court found, jurisdiction lies not in the State court but in the United States District Court. Plaintiffs filed timely written notice of appeal to this Court on 17 September 2014.

*122II. Jurisdiction

Jurisdiction lies in this Court pursuant to N.C. Gen.Stat. § 7A-27(b)(2), which provides for an appeal of right to the Court of Appeals from any final judgment of a district court in *550a civil action. See N.C. Gen.Stat. § 7A-27(b)(2) (2014).

III. Standard of Review

The standard of review "of a motion to dismiss under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure is de novo. " M Series Rebuild, LLC v. Town of Mount Pleasant, Inc., 222 N.C.App. 59, 63, 730 S.E.2d 254, 257 (2012) (citation and quotation marks omitted). "Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the [trial court]." Id.

IV. Analysis

This is a case of first impression in North Carolina-addressing whether the federal AWA preempts Plaintiffs from bringing their claim in Cherokee County District Court under N.C. Gen.Stat. § 19A. Pursuant to the Tenth Amendment of the United States Constitution, "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. Federal law, therefore, preempts state law only when: "(1) Congress explicitly provides for the preemption of state law; (2) Congress implicitly indicates the intent to occupy an entire field of regulation to the exclusion of state law; or (3) the relevant state law principle actually conflicts with federal law." Eastern Carolina Reg'l Hous. Auth. v. Lofton, ---N.C.App. ----, ----, 767 S.E.2d 63, 69 (2014) (citing Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) ). Courts typically begin their analysis of federal preemption "with a presumption against federal preemption." Davidson Cnty. Broad., Inc. v. Rowan Cnty. Bd. of Comm'rs, 186 N.C.App. 81, 89, 649 S.E.2d 904, 910 (2007) (quotation marks and citation omitted). Moreover, "[w]here ... the field that Congress is said to have pre-empted has been traditionally occupied by the States 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' " Id.

Therefore, here, the issue is whether the federal AWA (A) expressly preempts any State regulation of animal welfare; (B) implies an intent to regulate the welfare of all animals in the United States; or (C) conflicts with N.C. Gen.Stat. § 19A so that "compliance with both state and federal requirements is impossible, or where state law stands as an obstacle *123to the ... objectives of Congress."

Free access — add to your briefcase to read the full text and ask questions with AI

Related

DTH Media Corp. v. Folt
816 S.E.2d 518 (Court of Appeals of North Carolina, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
773 S.E.2d 548, 242 N.C. App. 120, 2015 N.C. App. LEXIS 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salzer-v-king-kong-zoo-ncctapp-2015.