Friday, August 12, 2022

Federal judge dismisses part of jet ski lawsuit with prejudice, attorney says it’s not over yet

A federal lawsuit filed against the Town of Wrightsville Beach regarding the legality of the town’s enforcement against several jet ski rental companies has been dismissed by a judge. (Port City Daily/File)

WRIGHTSVILLE BEACH — United States District Judge Lousie Flanagan has dismissed the majority of the plaintiff’s claims to the pending lawsuit against the Town of Wrightsville Beach with prejudice, ruling in favor of the town. The lawsuit was filed against the town in February by two jet ski rental companies utilizing state-owned property to launch their skis.

Flanagan also dismissed a number of claims without prejudice (meaning they can be brought to court again) including the plaintiff’s claims of civil conspiracy, defamation, and unfair and deceptive trade practices against Town Manager Tim Owens in his individual capacity.

Related: Deep dive: After years without issues, what made Wrightsville Beach go after a jet-ski rental company?

According to U.S. Legal, dismissal with prejudice means, “The plaintiff is barred from bringing an action on the same claim. Dismissal with prejudice is a final judgment and the case becomes res judicata on the claims that were or could have been brought in it.”

According to the order which was submitted on Nov. 20, the motion to dismiss was based on multi-part reasoning.

“This matter is before the court on defendants’ motions to dismiss for lack of subject matter of Civil Procedure 12(b)(1) and 12(b)(6). (DE 15, 22). Plaintiffs failed to respond to these motions, and the time for doing so has elapsed. Also before the court is plaintiffs’ motion for partial summary judgment (DE 30), defendants’ motion to strike (DE 34), and defendants’ motion to extend case management order deadlines (DE 36). In this posture, the issues raised are ripe for ruling,” according to the order.

The reasoning the judge lists for the dismissal of the majority of the plaintiff’s claims is known as res judicata (latin for ‘a matter judged’).

“Generally, res judicata is the principle that a cause of action may not be relitigated once it has been judged on the merits. “Finality” is the term which refers to when a court renders a final judgment on the merits,’ according to Cornell Law School.

Essentially, the motion claims that the decision on the matter has already been ruled on in state court and cannot be decided in federal court. But the attorney for the plaintiff’s, Greg Buscemi said he does not agree with the court’s decision.

“The court is basically saying that my clients cannot bring constitutional claims because they are all bound by Mangum’s 2018 consent judgment — even though [Mitchell Carson] Seitter and Carolina Coastal Watersports are not parties in that case. The reasoning fails to recognize that the existence of ongoing due process constitutional violations and lack of original jurisdiction in the state court case brought by the town each render that judgment void and therefore should have no preclusive effect on the current claims,” Buscemi said.

The consent judgment stemmed from the town’s civil citations against Mangum and was essentially a deal that would drop fines (and the threat of state debt collection) if Mangum agreed not to do business at the boat ramp anymore — it’s a deal Mangum feels he took under duress, although he has abided by it. However, when Mangum began leasing his jetskis to other businesses that then rented them and used the boat ramp, those businesses were then targeted by the town; this happened even these businesses were separate from Mangum and despite the fact that Mangum’s part of the operation took place completely outside of the boat ramp and Wrightsville Beach.

Because of this, Buscemi said he will be filing for reconsideration and if necessary, will file an appeal.

It is worth noting that while the bulk of the complaints against the town and its representatives were dismissed with prejudice, three of the claims were dismissed without prejudice. These claims were filed under state law, not federal law, and were, therefore, considered ‘supplemental jurisdiction.’

“Having dismissed all claims arising under federal law, the court declines to exercise supplemental jurisdiction over plaintiffs’ remaining state law claims (plaintiffs’ fourteenth, fifteenth, and sixteenth claims) and dismisses them without prejudice,” the order states.

These three claims were filed against Town Manager Tim Owens and former Town Attorney John Wessell individually. The first claim is that of civil conspiracy and was filed against both Owens and Wessell. The second was for defamation filed against Owens, and finally, unfair and deceptive trade practices, again, filed against Owens.

Port City Daily reached out to the State Department of Wildlife, the entity that owns the boat launch access to ask their opinion on whether or not jet ski rentals could use the access, and if the town had any enforcement over the property.

“All of our Boating Access Areas are open to the public 24/7 and anyone is allowed to launch from these sites, assuming they follow the regulation posted on our website. That being said jet ski rental companies can use the ramp. Since the Wrightsville Beach property is owned wholly by Wildlife Commission, the town has no jurisdiction at this BAA,” according to Ryan Kennemur for the N.C. Wildlife Resources Commission.


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