The lawsuit filed in federal court by the owner of a former classic car and auto repair shop in Roanoke Rapids is a SLAPP complaint, the attorney representing two defendants wrote in a memo to support dismissal or compel arbitration filed today.

A SLAPP lawsuit, according to the Reporters Committee for Freedom of the Press, is one which is designed to intimidate and silence criticism through expensive, baseless legal proceedings. SLAPP stands for strategic lawsuits against public participation.

Chapel Hill Attorney James C. White, who is representing defendants Dennis Harvey and Vickie Evans, wrote, “This case is a SLAPP suit brought to retaliate against defrauded consumers who had the temerity to fight back. Defendants Dennis Harvey and Vickie Evans are among twenty-one victims of scams perpetrated by Vivian Pompliano, Anthony Pompliano and their company Pomp Boys Motors.”

White continues in the memo that  Harvey, Evans and the other consumers are parties to a pending arbitration against the plaintiffs in this matter. “Every victim (including Harvey and Evans) has strong claims against the Pomp Boys under North Carolina's Motor Vehicle Repair Act. Ironically, given the allegations of this complaint, the conduct of Pomp Boys described in the arbitration claim likely gives rise to criminal liability under North Carolina’s False Pretenses statute.” 

The consumers in the arbitration, including Harvey and Evans, have much in common, White writes. “In each case the Pomplianos and Pomp Boys looked for weakness and in each case they saw a way to profit from it. In addition to exorbitant and often unauthorized charges, they would brazenly claim work was done that was never undertaken. Additionally, Pomp Boys would tack on storage fees of $35 per day, even where a vehicle was undrivable because it had never been repaired.”

Accepting the facts asserted by the plaintiffs as true, Harvey and Evans spoke to police officers and/or filed a complaint with the police department.

These plaintiffs filed a second SLAPP suit in Wake County Superior Court in which they allege that two other consumers who are parties to the same arbitration as Harvey and Evans defamed them by discussing the pending lawsuit with the press. That lawsuit was filed against Capitol Broadcasting.

Harvey and Evans filed an action regarding claims at issue in this case in Wake County, and Pomp Boys successfully moved to compel arbitration. As a result, an arbitration of the Harvey and Evans claims against plaintiffs is pending before James Gale. “The facts in this federal action are intertwined with those in the state case and thus, intertwined with the issues subject to arbitration. Because plaintiffs and defendants in this federal action all agreed that jurisdiction would be in AAA — American Arbitration Association — this court should dismiss the complaint in its entirety pursuant to Federal Rule of Civil Procedure … or stay this action and send all of the claims to arbitration.”

Statement of facts

The allegations in the federal case arise from the same set of facts that are asserted in the Wake County case. “The state court case was initiated by a group of twenty-one consumers who allege fraudulent acts by Vivian Pompliano and AJP Group, LLC d/b/a Pomp Boys.”

That case asserts that the individual plaintiffs were harassed and deprived of their civil rights by officers acting under the authority of the city of Roanoke Rapids and it further alleges that Harvey and Evans conspired with police officers of Roanoke Rapids because the officers “solicited and encouraged (Evans and Harvey) to file a civil lawsuit in the beginning of 2023 against the Pomp Boys. The state and federal actions arise from the same state of facts and involve the same parties.”

But White writes, “In reality, the Pomp Boys repeatedly made false statements that Pompliano knew were untrue, deceptive and misleading. The Pomp Boys took advantage of consumers who entrusted their vehicles to the Pomp Boys, and ultimately Pomp Boys held those vehicles hostage and required customers to pay excessive fees to reclaim their property.” 

White contends Pomp Boys’ conduct violated the North Carolina Unfair and Deceptive Trade Practices Act, potentially rising to a violation of North Carolina’s criminal statute for fraud. “They may also be liable for conversion and unjust enrichment.”

Argument

The case against Harvey and Evans should be dismissed because it does not state a claim for conspiracy, the filing says.

The only claim against Harvey and Evans in this case is the allegation that they “conspired” with Roanoke Rapids police officers. “Pomp Boys offer no legal support for the novel idea that one can conspire to file a civil action. Filing a civil complaint is not per se improper. There are several remedies for an improper civil complaint, including sanctions under Rule 11 or (state statutes). Not only have Pomp Boys not moved for sanctions in state court against Harvey and Evans for filing their complaint, they have not even been able to dismiss a single claim. Instead, Harvey, Evans and the other plaintiffs obtained pre-judgment attachment of Pomp Boys’ assets — an order that is in place today.”

Rather than move to dismiss the state complaint, Pomp Boys instead stipulated to arbitration. “The arbitration is ongoing. There surely cannot be liability for discussing conduct that gives rise to a valid civil action for deceit and wrongful conduct even if those alleged discussions were with law enforcement. Vague allegations of discussions that merely posit a conjecture of some nefarious conduct simply cannot rise to the level of a conspiracy.”

White writes that neither Harvey nor Evans had the power to deprive Pomp Boys of their constitutional rights. “In fact, they filed suit along with nineteen other consumers who were not named in this case, apparently because they did not conspire with the police before bringing their claims.” 

The federal complaint, White contends, is based upon the same acts and actors as are present in the related arbitration and state court action.

“While plaintiffs assert that the police knew that they lacked probable cause to bring criminal charges against Ms. Pompliano, their ‘co-conspirators’ described that probable cause in their arbitration claim.” 

Arbitration claim

The arbitration claim asserts that Pomp Boys would:

Falsely represent that repairs had been made; they would falsely claim that certain parts or repairs were necessary; they would falsely claim that cars were in dangerous condition and needed immediate repairs; they would alter invoices and other documents. “Whether the Pomp Boys committed fraud, or some other crime, is central to the arbitration claim.” 

White wrote there are at least 19 other consumers who can testify that the practices employed by Pomp Boys were — to say the least — deceptive. “The consumers believed that Pomp Boys was capable of repairs to their vehicles, and that the repairs would not be negligent or a mere pretext for extorting money for repairs that, if done at all, were shoddy. Certainly, neither Harvey and Evans nor the other consumers anticipated the exorbitant storage fees. Accordingly, Harvey and Evans have a valid Unfair and Deceptive Trade Practices Act counterclaim.”