The attorney representing a classic car and auto repair shop Monday filed an amended complaint against two of the defendants in the federal civil lawsuit.
Along with that complaint was a response to a motion by the attorneys for Dennis Harvey and Vickie Evans to dismiss or as an alternative stay and compel arbitration in the case.
Abraham Rubert-Schewel, the attorney representing plaintiff Vivian Pompliano, the owner of the former Pomp Boys Motors in Roanoke Rapids, said the amended complaint moots the motions of Harvey and Evans.
“Concurrent with this response, plaintiffs have timely filed an amended complaint,” Rubert-Schewel wrote. “Because that pleading supersedes the original, any motions directed at the prior complaint are generally to be denied as moot.”
The amended complaint does not affect allegations against the other defendants, the attorney noted.
“To be clear, this case is in the correct forum and should not be dismissed or stayed,” the response says. “Only defendants Harvey and Evans are part of the action pending in arbitration. Likewise, only Harvey and Evans have moved to dismiss or stay plaintiffs’ claims.”
Rubert-Schewel wrote that all other defendants have answered and the city of Roanoke Rapids, which is also a defendant in the complaint, has opposed Harvey and Evans’ motions to move the case to a different forum. “Plaintiffs intend to swiftly prosecute this action as proposed in their scheduling order and should be permitted to do so.”
The argument continues that an arbitrator will soon decide whether Harvey and Evans are party to the pending arbitration at all, although as noted in their supportive memorandum, Harvey and Evans are presently parties to a pending arbitration against the plaintiffs in this matter.
But, Pompliano’s attorney wrote, “that may soon no longer be the case.”
On May 13, an arbitrator determined that the plaintiff’s underlying mechanics lien claims against Harvey and Evans were non-arbitrable and as a result, those claims are now pending in state court. “After the arbitrator’s determination, however, Harvey and Evans’s counterclaims remained in the arbitration. In order to have the lien claims and any related counterclaims proceed in the same forum, plaintiffs have asked the arbitrator to dismiss Harvey and Evans’s lingering claims from the arbitration proceeding.”
Harvey and Evans filed a response 10 days ago and it is anticipated that the arbitrator will make a decision in short order. “Again, Harvey and Evans’s motion before this court is now moot and plaintiffs intend to respond fully to any renewed motion to compel arbitration in this case, should the need arise.”
The response notes it is agreed that the Roanoke Rapids Police Department defendants should not be compelled to arbitrate. “Likewise — and out of an abundance of caution — plaintiffs agree with (the) city of Roanoke Rapids, (officers) Antonio Seward, and Jayme Sheburne that this is the proper forum for plaintiffs’ claims against them.”
Rubert-Schewel wrote that Harvey and Evans’s arguments to the contrary are unavailing. “None of the RRPD defendants are signatories to any arbitration provision or stipulation with plaintiffs. Nor have they ever attempted to enforce or otherwise benefit from any third-party contract requiring arbitration with plaintiffs. In short, they have not agreed to submit to arbitration, and prefer — as do plaintiffs — to remain in this forum.”
At issue in the Pompliano complaint is the contention that Pomp Boys was forced to close after the defendants harassed, threatened, and eventually conspired to bring false criminal charges against her and the company. “Plaintiffs bring this action seeking damages for their financial loss, and loss of liberty and good name caused by defendants’ false charges and false allegations.”
The argument filed on behalf of Pompliano notes that she was a car shop owner who, like many others, used mechanics liens to recover unpaid bills. “Their use of the lien process gave rise to civil disputes with several customers — including defendants Harvey and Evans.”
To gain leverage in those disputes, the complaint charges, the customers conspired with officers of the Roanoke Rapids Police Department to initiate unsupported criminal charges against Pomp Boys and Pompliano. “Due to these false charges and allegations, plaintiffs were forced to close their classic car shop.”
