UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION
Civil Case No. 5:14CV85-RLV
JAMES LEE PARLIER JR., an individual (d/b/a
Jimmy Parlier Horse Transport, Parlier Farms
and Parlier Equine Transport & Carriages);
Plaintiff,
v.
TIFFANY LEWIS, an individual,
KANSAS CITY PREMIER APARTMENTS,
INC., a Missouri corporation,
JASON STAHL, an individual,
MARIA BOGDANOVA PEIFER, an individual,
BRENDA CASTEEN, an individual,
MARILYN MEEKER BERNSTEIN, an
individual,
JOHN AND JANE DOES 1-10, presently
unknown individuals;
Defendants.

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ORDER

THIS MATTER is before the Court on Defendant Brenda Casteens (Defendant

Casteen) Motion for Claim and Delivery Pursuant to N.C. GEN. STAT. 1-471, et. seq. and Federal
Rule of Civil Procedure 64, filed April 24, 2015 (Motion for Claim and Delivery). [Doc. 56].
Defendant Casteen moves the Court pursuant to FED. R. CIV. P. 64 and N.C. GEN. STAT.
1-472 for the immediate return of a certain Peruvian Paso Mare horse named Allie (Allie) which
is being held by Plaintiff James Lee Parlier, Jr. (Plaintiff). In support of her motion, Defendant
Casteen filed a memorandum of law, the Affidavit of Brenda Casteen, and supporting exhibits.
[Doc. 56]. A hearing was held on Defendant Casteens Motion on June 2, 2015, the undersigned

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presiding. Although Plaintiff did not personally appear for the hearing, counsel made a limited
appearance on Plaintiffs behalf. Both parties were provided an opportunity to present evidence
and to be heard. Based upon the findings and conclusions set out below and on the terms stated
herein, Defendant Casteens motion will be allowed.
I.

FACTUAL BACKGROUND

In 2009 Casteen purchased a Peruvian Paso Mare horse named, Allie (Allie) from
Plaintiff. [Doc. 44 1]. Exhibit B to Defendant Casteens Motion for Claim and Delivery are
copies of veterinary records, bills and other documentation from the years 2009, 2010 and 2011
which identify Defendant Casteen as the owner of Allie and describe Allie as a Peruvian Paso
Mare Horse that is dark bay in color. [Doc. 56]. In approximately 2011, Defendant Casteen and
Plaintiff began a romantic relationship. [Doc. 44 2]. Over the course of her relationship
with Plaintiff, Defendant Casteen would occasionally stay at Plaintiffs home and stable her
horses, including Allie, at a barn located on Plaintiffs property in Lincoln County, North Carolina.
[Id. 23 & 25]. On or about June 1, 2012, Plaintiff and Defendant Casteens relationship ended.
[Id. 24]. Defendant Casteens counterclaim indicates that she informed Plaintiff that she wanted
her property located at his home returned to her, including her horses. [Id. 25]. At that time
Defendant Casteen contends that Plaintiff declined to allow Defendant Casteen to leave his home
with her horses, including Allie. [Id. 26-27]. Plaintiff later informed Defendant Casteen that he
would load her horses and other belongings which were at his property onto a hauling trailer and
bring them to her. [Id. 28]. Defendant Casteen recognizes that Plaintiff did bring some of her
belongings and horses to her but would not allow Defendant Casteen to take Allie from his
property. [Id. 29-31]. Defendant Casteen avers that since that time she has made demands upon
Plaintiff for the return of Allie but Plaintiff has refused to return Allie. [Id.].
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On May 29, 2014, Plaintiff filed a verified Complaint in this federal district court against
numerous Defendants including Defendant Casteen. [Doc. 1]. Plaintiffs Complaint asserted
causes of action for (1) Tortious Interference with Contract; (2) Defamation Per Se; (3) Defamation
Per Quod; and (4) Unfair and Deceptive Trade Practices based upon statements alleged to have
been made by the Defendants about Plaintiff and his horse transport and carriage business on
certain internet websites. [Id.]. Federal subject matter jurisdiction over Plaintiffs claims is
supplied by diversity of citizenship. See 28 U.S.C. 1332.
On August 11, 2014, Defendant Casteen filed an Answer and Counterclaims. [Doc. 19].
On October 9, 2014, Defendant Casteen filed her Answer and Amended Counterclaim making
claims against Plaintiff for: (1) claim and delivery pursuant to N.C. GEN. STAT. 1-472, et. seq.,
and FED. R. CIV. P. 64; (2) Breach of Contract; (3) Implied Contract/Quantum Meruit; (4)
Conversion; (5) Possession of Personal Property; (6) Fraud; (7) Unfair and Deceptive Trade
Practices; (8) Punitive Damages; (9) Battery; (10) Assault; (11) False Imprisonment; and (12)
Intentional Infliction of Emotional Distress. [Doc. 44]. Defendant Casteens Amended
Counterclaim makes demand for the return of Allie pursuant to the North Carolina Claim and
Delivery statutes. N.C. GEN. STAT. 1-472 et. seq.. [Doc. 44].
On January 13, 2015, Plaintiff submitted a Stipulation of Dismissal as to all named
Defendants with the exception of Defendant Casteen. [Doc. 53].
On April 24, 2015, Defendant Casteen filed her Motion for Claim and Delivery Pursuant
to N.C. GEN. STAT. 1-471, et. seq. and Federal Rule of Civil Procedure 64. [Doc. 56]. Plaintiff
did not file a written response to Casteens Motion or request additional time to do so.
This matter is ripe for disposition by the Court.

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II.

DISCUSSION

Rule 64 of the Federal Rules of Civil Procedure provides that [a]t the commencement of
and throughout an action, every remedy is available that, under the law of the state where the court
is located, provides for seizing a person or property to secure satisfaction of the potential
judgment. Section 1-472 of the North Carolina General Statues provides that [t]he plaintiff in an
action to recover the possession of personal property may claim, the immediate delivery of the
property . . . at any time before the judgment in the principal action. N.C. GEN. STAT. 1-472.
The plaintiff in such an action is entitled to delivery of the property, after posting of the appropriate
bond, upon establishing: (i) that the plaintiff is the owner of the property or is lawfully entitled to
its possession; (ii) that the property is being wrongfully detained by the defendant; (iii) the alleged
cause of the detention; (iv) that the property has not been taken for tax, assessment of fine, pursuant
to a statute or seized under an execution or attachment against the property of the plaintiff; and (v)
the actual value of the property. N.C. GEN. STAT. 1-473; Weener Plastics, Inc. v. HNH
Packaging, LLC, 590 F. Supp.2d 760, 763-64 (E.D.N.C. 2008). As set forth below, the Court
concludes that Defendant Casteen has established each element required by N.C. GEN. STAT. 1473 so that she is entitled to the delivery of Allie upon the posting of an appropriate bond.1

Section 1-475 of the North Carolina General Statutes requires the posting of a written
undertaking or bond:
The plaintiff must give a written undertaking payable to the defendant, executed by one
or more sufficient sureties, approved by the sheriff, to the effect that they are bound in
double the value of the property, as stated in the affidavit for the prosecution of the
action, for the return of the property to the defendant, with damages for its deterioration
and detention if return can be had, and if for any cause return cannot be had, for the
payment to him of such sum as may be recovered against the plaintiff for the value of the
property at the time of the seizure, with interest thereon as damages for such seizure and
detention.
N.C. GEN. STAT. 1-475.
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1. Defendant Casteen Asserts a Claim for Recovery of Allie.

As the Court in Weener Plastics observed, 590 F.Supp.2d at 765, and as is plain from
reading N.C. GEN. STAT. 1-472, to be entitled to immediate possession of property in accordance
with North Carolinas claim and delivery statute, the party seeking possession must assert a claim
for possession in an underlying lawsuit. In her Amended Counterclaim, Defendant Casteen asserts
a cause of action against Plaintiff for conversion, return of personal property and seeks the return
of Allie through the claim and delivery process.
2. Defendant Casteen is Allies Owner.
As demonstrated in the Casteen affidavit and the documents submitted by Defendant
Casteen in support of her Motion for Claim and Delivery, Casteen is the owner of Allie. Moreover,
Plaintiff does not challenge that Defendant Casteen is the owner of Allie.2
3. The Plaintiff is Wrongfully Detaining Allie.
As set forth in the Casteen Affidavit and Defendant Casteens Counterclaim, Defendant
Casteen avers that she has demanded on a number of occasions that Plaintiff return Allie to her
and Plaintiff has refused to do so. While Plaintiffs counsel offered argument at the June 2, 2015
hearing that Plaintiff had asserted a lien for Allie for boarding, veterinary and other services,
Plaintiff has not submitted a contract, invoices or any other evidence of indebtedness sufficient to
establish that Plaintiff is a person entitled to a lien claim on personal property. More particularly,
N.C. Gen. Stat. 44A-2(c) states, in pertinent part, that [a]ny person engaged in the business of
boarding animals has a lien on the animals boarded for reasonable charges for such boarding which
2

At the June 2, 2015 hearing, Plaintiff submitted to the Court a copy of a letter purported to be
Plaintiffs lien claim on Allie filed with the Lincoln County Clerk of Superior Courts office in which
Plaintiff acknowledges that Defendant Casteen is the owner of Allie.
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are contracted for with an owner or legal possessor of the animal. (emphasis added). In the
absence of the production of any underlying contract for boarding or other evidence thereof,
Plaintiffs argument fails and Defendant Casteen has established that Allie is being wrongfully
detained.
4. The Alleged Cause of Plaintiffs Wrongful Detention of Allie.
As set forth in the Casteen Affidavit and in her Amended Counterclaim, Defendant Casteen
believes that Plaintiff is wrongfully detaining Allie in retaliation over Plaintiff and Defendant
Casteens relationship ending and Defendant Casteens choice to leave the relationship. Defendant
Casteen avers that on multiple occasions she has made due demand for Allie but Plaintiff has
refused to provide her. While Plaintiffs counsel contends that Plaintiff has provided boarding,
veterinary and other services which entitle him to a lien, Plaintiff has submitted no affidavits or
other evidence concerning the reasons why he has continued to board Allie at his property. Also,
as identified above, Plaintiff has failed to produce evidence of an underlying contract sufficient to
establish a valid lien claim. In the absence of any other evidence to the contrary, Defendant
Casteens sworn affidavit is the best evidence of the reason for the detention and Defendant
Casteen has established that Allie is being wrongfully detained.
5. Allie Has Not Been Taken for Tax or Related Purposes.
Finally, Allie has not been taken for tax, assessment or fine, pursuant to a statute or seized
under an execution or attachment against Defendant Casteens property.

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6. The Actual Value of Allie.

Defendant Casteen avers that the actual value of Allie is $1,750.00. Defendant Casteen
bases this valuation on her experience in buying, selling and owning horses. Plaintiff did not object
or offer any contrary evidence concerning the value of Allie.
III.

CONCLUSION

Having satisfied the requirements of the North Carolina Claim and Delivery Statute, N.C.
Gen. Stat. 1-473, the Court finds that Defendant Casteen is entitled to issuance of an order of
claim and delivery conditioned upon her filing a bond in the amount of $3,500.00 with the Clerk
of Courts Office for the United States District Court for the Western District of North Carolina,
Statesville Division. See N.C. Gen. Stat. 1-474476.3
IT IS HEREBY ORDERED that Defendant Casteens Motion for Claim and Delivery is
GRANTED. Upon receipt of the bond and approval by this Court, a separate Order of Claim and
Delivery will issue directing the U.S. Marshals Service and / or the Lincoln County Sheriffs
Department to execute said Claim and Delivery pursuant to North Carolina law.

N.C. Gen. Stat. 474(a) reads in pertinent part:

The clerk of court may, upon notice and hearing as provided in G.S. 1-474.1 and upon the
giving by the plaintiff of the undertaking prescribed in G.S. 1-475, require the sheriff of
the county where the property claimed is located to take the property from the defendant
and deliver it to the plaintiff.
Pursuant to N.C. Gen. Stat. 476:
Upon the receipt of the order from the clerk with the plaintiffs undertaking, the sheriff
shall forthwith take the property described in the affidavit, if it is in the possession of the
defendant or his agent, and retain it in his custody. He shall also, without delay, serve on
the defendant a copy of the affidavit, notice, and undertaking, by delivering the same to
him personally, if he can be found, or to his agent, from whose possession the property is
taken; or, if neither can be found, by leaving them at the usual place of abode of either,
with some person of suitable age and discretion.
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Signed: June 8, 2015

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