Plaintiff’s suit was terminated in the district court partly by a grant of summary judgment, partly by a ruling that plaintiff had failed to state a claim on which relief could be granted, and partly by a ruling that some of plaintiff’s claims fell within the domestic-relations exception to federal diversity jurisdiction. We affirm in part and reverse in part.
I.
On November 16, 1977, James D. Cole, a resident of Georgia, brought suit for compensatory and punitive damages against Mary Franklin Carter Cole (his former wife), against Dale Padgett (a deputy sheriff in the Sheriff’s Department of Onslow County, North Carolina), and against J. H. Padgett (a policeman with the town of Holly Ridge, North Carolina). All defendants are residents of North Carolina.
1
In addi
Plaintiff’s allegations may usefully be subdivided into four general groups:
“Count 1” 2 -Plaintiff charged Mary Cole with malicious prosecution and abuse of process. The factual underpinnings of Count 1 consisted of allegedly numerous and knowingly false criminal charges initiated for purposes of harassment by the defendant, Mary Cole, against the plaintiff during the time that they were still married. 3 The criminal charges plaintiff claims were preferred against him included:
(a) secretly installing a live electric wire or wires in Mary Cole’s 4 house, with intent to shock anyone who entered;
(b) using profane and indecent language in telephone calls, involving Mary Cole and others;
(c) assaulting Mary Cole;
(d) abandonment and nonsupport of Mary Cole.
“Count 2”-Plaintiff alleged that Mary Cole and Dale Padgett had conspired to burn or to cause to be burned on November 30, 1974, a dwelling house owned and occupied by the plaintiff. He further charged that, prior to the fire, Mary Cole had caused the fire insurance on the dwelling to be transferred from plaintiff’s name to her name and that she be designated as beneficiary. The designation of beneficiary change assertedly was done without notification to or approval by the plaintiff, who claimed that he did not discover the change until he attempted to collect the proceeds due for the loss of his house and was told that his request for payment was denied because the proceeds had already been paid to Mary Cole. Also, plaintiff alleged that prior to the fire Mary Cole and her co-conspirators had removed from the house several thousand dollars worth of personal property belonging to the plaintiff.
In support of Count 2, plaintiff filed an affidavit in which he swore that, prior to the burning of the house, Mary Cole had threatened to destroy everything that the plaintiff had; that on the day of the fire, prior to it, he had seen Mary Cole in the immediate vicinity of his home; and that after the fire had begun, he saw Dale Pad-gett in the vicinity of the house. Plaintiff further swore that the “fire was set by someone,” that plaintiff had not set the fire himself, and that, on the day of the fire shortly before it began, Mary Cole had tried to run plaintiff’s truck off the road while plaintiff was driving it.
Mary Cole filed an affidavit in which she swore that plaintiff had told her several times that he would burn his house down before he would give it to any woman through a divorce or separation agreement; that with the protection of the Onslow County Sheriff’s Department she had retrieved some of her personal property from the house between October 18, 1974, and November 14, 1975, but that she had not returned to the house after November 15;
“Count 3”-Plaintiff alleged that although he had adequately prepaid the premium for his automobile liability insurance, Mary Cole had contacted the insurance company and requested it to cancel coverage. The company then cancelled the insurance without immediately notifying the plaintiff. Plaintiff further alleges that, before he received notice of the cancellation, Mary Cole and Dale Padgett had conspired to cause plaintiff’s arrest for operating a motor vehicle without meeting the requirements of North Carolina’s financial responsibility statute. Allegedly, pursuant to the asserted conspiracy, Dale Padgett stopped plaintiff’s motor vehicle and attempted to arrest plaintiff for operating it without liability insurance. When plaintiff, however, was able to produce what appeared to be a valid automobile liability insurance policy card which indicated on its face that the liability insurance was still in force, Dale Padgett did not proceed to arrest the plaintiff, but he did verbally harass and abuse plaintiff. In his affidavit, plaintiff swore that the encounter took place on approximately November 23, 1974; that Dale Padgett had told the plaintiff that Mary Cole had said to Dale Padgett that the plaintiff did not have liability insurance because she had had it cancelled; and that after Dale Padgett saw the liability insurance card, he told plaintiff that “he was going to get the Plaintiff one way or the other,” that he “had been laying for the Plaintiff,” and that he would shoot the plaintiff.
“Count 4”-Plaintiff alleged that on June 21, 1976, Dale Padgett and J. H. Padgett had stopped plaintiff’s motor vehicle without cause and had proceeded to harass and abuse the plaintiff. The alleged harassment and abuse included unprovoked assault and battery resulting in physical injury to the plaintiff.
In support of that allegation, plaintiff swore in his affidavit that he had been stopped around 9:30 p. m. while safely and properly driving through Holly Ridge, North Carolina. According to the affidavit, the two defendants were both in an unmarked green Sheriff’s Department car when they flagged him over and asked to see his driver’s license and vehicle registration. Plaintiff contends that, notwithstanding his compliance with the request, they attempted physically to extract him from the vehicle, drew a gun on him, and physically beat him with a blackjack. They released plaintiff only after having received instructions over the radio to turn him loose. Plaintiff then drove a few miles down the road, reported the incident to the Onslow County Sheriff from a pay phone, and proceeded directly to a hospital where he received treatment for his injuries, which he described as a dislocated shoulder and abrasions. An emergency room bill accompanying the affidavit showed that plaintiff had been admitted to the hospital at 10:25 p. m. At the bottom of the bill was written: “dx. Abrasion (L) forearm.”
Affidavits submitted by the defendants stated that, during the afternoon of November 21,1976, plaintiff had appeared at a gasoline station in a very intoxicated condition; that, when a member of the gasoline station staff had spoken well of Dale Pad-gett, plaintiff had raised a pipe wrench as if to strike the individual; that plaintiff’s drunken condition and the assault had been reported to Dale Padgett; and that when plaintiff drove past the gas station a half an hour later, Dale Padgett followed him in a marked Sheriff’s Department car to stop him. Affiants who stated that they had observed the afternoon encounter either from across the street or from a block or two away swore that plaintiff’s vehicle was stopped oply for a matter of 10 minutes or
Plaintiff’s affidavits denied the alleged encounter at the gas station.
Defendants, who had timely requested a jury trial on all issues, moved that summary judgment be granted in their favor as to some counts and that the case be dismissed as to all others. Over plaintiff’s objections, the district court, in a one-paragraph opinion, adopted a magistrate’s “Proposed Findings of Fact,” “Proposed Conclusions of Law,” and “Proposed Order.”
The court thereby ruled that Counts 1, 2, and 3 concerned matters of domestic relations and thus were not within the jurisdiction of the federal courts. Accordingly, Count 1 (malicious prosecution and abuse of process) and Count 2 (arson, conspiracy, conversion) were dismissed for want of subject matter jurisdiction.
The court also indicated that if it “chose” to exercise jurisdiction, it would grant summary judgment as to Count 2 because affidavits filed by the defendants had established that they were nowhere in the vicinity of the plaintiff’s house at the time it burned.
Notwithstanding the court’s adoption of the statement elsewhere in the magistrate’s opinion that there was no subject matter jurisdiction over Count 3 (stopping plaintiff’s truck for lack of insurance), the court adopted the magistrate’s recommendation that Count 3 be dismissed on the merits for failure to state a claim upon which relief might be granted.
Finally, the court granted summary judgment with respect to Count 4 (vehicle stop on June 21, 1976). It first stated that defendants’ alleged conduct, even if tortious under state law failed as a matter of law to rise to a violation of 42 U.S.C. § 1983. Turning to claims because of state-law torts, the court held that plaintiff was time-barred under North Carolina’s one-year statute of limitations for assault, battery, or false imprisonment. See N.C.Gen. Stat. § 1-54(3) (1969).
Plaintiff appealed.
II.
In dismissing the first and second counts, the district court invoked the general principle that Congress had not given the federal courts original diversity jurisdiction over domestic relations cases.
See, e. g., Wilkins v. Rogers,
In granting diversity jurisdiction to the district courts, Congress did not authorize them to declare
ab initio
litigants’ rights and duties under family relations laws. That is, the district courts have no original diversity jurisdiction to grant a divorce, to award alimony, to determine child custody, or to decree visitation.
But see Solomon
v.
Solomon,
Such statements, however, merely emphasize that federal courts will be alert to preclude what are genuinely divorce, alimony, or child custody and support cases from creeping around the barrier. Understandably but incorrectly, in seeking to expand the exception to federal jurisdiction, district courts have occasionally looked beyond the nature of the rights which the proposed litigation seeks to establish. Such courts have referred more globally to exceptions grounded on “the domestic relations
nature”
of a case,
Cherry v. Cherry,
Not all family feuds, however, fall directly into the specialized category of true domestic relations cases (primarily divorce, alimony, child custody and support). A district court may not simply avoid all diversity cases having intrafamily aspects. Rather it must consider the exact nature of the rights asserted or of the breaches alleged. As Judge Weinstein wrote in the
Spindel
case: “A federal court is not deprived of competence merely because the parties involved are husband and wife or the controversy might be termed a ‘marital dispute.’ ... If a woman were suing her former husband for assault and battery in federal district court, no one would question the court’s power to award the plaintiff damages.”
The instant case does not present any true domestic relations claims. Even though the parties have been marriage partners, where alleged breaches (whether tortious or contractual in nature) are of a duty which does not arise solely from family relations law, a federal district court may not deny jurisdiction simply on the grounds of the supposed etiology of the emotions underlying either the alleged breach by the defendant or the decision by the. plaintiff to bring suit.
The duty to abstain from malicious prosecution, from abuse of process, from arson, and from conversion does not arise out of or require, in order to give rise to the duty, a present or prior family relation. Mr. and Mrs. Cole may have very strong
The dismissal of Counts 1 and 2 for lack of jurisdiction must, therefore, be reversed. We, of course, express no opinion as to the probable outcome. Plaintiff still will have the burden of proof. We rule only that there was jurisdiction which precluded dismissal for want thereof.
III.
In its opinion, the district court indicated that if it had had jurisdiction, it would have granted summary judgment for defendants concerning Count 2 (the allegations connected with the destruction by fire of plaintiff’s house). We have ruled that the district court did in fact have jurisdiction. Therefore, we discuss the propriety of summary judgment on the present record.
Although the district court purported to credit all of plaintiff’s affidavits, in its “Proposed Findings of Fact” it also credited defendants’ affidavits even when those affidavits were inconsistent with inferences favorable to the plaintiff which could reasonably be drawn from affidavits submitted by him. For instance, although plaintiff swore that on November 30, 1974, after the house fire commenced, he had seen Dale Padgett in the vicinity of the house, the district court “found” (apparently on the strength of affidavits from Dale Padgett’s wife and in-laws) that it was not until December 1, 1974, that Padgett returned to Onslow County, North Carolina, from a Thanksgiving trip to Lima, Ohio. As the term “Findings of Fact” indicated-and as counsel for the plaintiff vainly pointed out to the district court-the magistrate was dealing with a motion for summary judgment as if it were a hearing on the merits in a nonjury trial. At the summary judgment stage, improbability of one party’s version is not enough. The improbable does, now and again, occur. “[Ejvidence purporting to create doubts as to facts that is too incredible to be accepted, by reasonable minds will not prevent summary judgment,” but the party opposing summary judgment is entitled to “the benefit of all reasonable doubts.” 10 C. Wright & A. Miller, Federal Practice & Procedure § 2727, at 551 (1973).
If, with respect to a material fact, some inferences favorable to one party are inconsistent with some inferences favorable to another, summary judgment is inappropriate even if a clever factfinder should discover a possible set of inferences consistent with the purely factual allegations of all the affidavits submitted. Selecting one set of conflicting inferences, as opposed to another, is part of the ultimate factfinding process, not of the disposition at the summary judgment stage. 6
The district court’s inappropriate fact-finding infected the suggested judgments
With respect to defendant Dale Padgett under Count 2, for summary judgment purposes, we must assume on the basis of plaintiff’s affidavit that Dale Padgett was present in the vicinity of plaintiff’s house the night it burned. The record before the court (as to which it stated that it would have granted summary judgment, had it not already granted a motion to dismiss) contained no evidence (other than alibi evidence) which tended to establish Dale Pad-gett’s nonliability on Count 2. It did not even contain a denial by him that he had participated in burning down plaintiff’s house. 8 If defendant had put in evidence tending to establish his nonliability, plaintiff could not have rested simply on the bare allegations in the complaint to resist summary judgment. 9 Analogously, where plaintiff’s affidavit contradicts the only evidence before the court which tends to establish Dale Padgett’s nonliability (the wife’s and in-laws’ statements as to his absence from the scene on the critical date), Padgett cannot achieve summary judgment solely on the bare denial in his answer. On the present record, therefore, the district court would have been in error if it had awarded summary judgment for defendant Dale Padgett on Count 2.
IV.
With respect to Count 3,
10
there is no allegation that defendant Dale Padgett
As for the claim under Count 3 against Mary Cole, the fair intendment of the complaint is that her cancellation of plaintiff’s automobile liability insurance was unauthorized by the plaintiff (even if her status as plaintiff’s wife were sufficient to give her apparent authority in the eyes of the insurance company to order the cancellation). By purporting to act as plaintiff’s agent, Mary Cole assumed a fiduciary duty to him. Absent some defense, she is subject to liability to him for any damages which he suffered as a result of her breach of that duty, especially where her alleged report to Dale Padgett was for the purpose of, and succeeded in, precipitating plaintiff’s alleged damage.
Thus, as to her, Count 3 should not have been dismissed.
V.
Even if the affidavits submitted by plaintiff and those submitted by the defendants with respect to Count 4 in fact referred to the same event (something as to which the record is by no means clear), they present a question of fact which may not properly be resolved on a motion for summary judgment. Where the affidavits raise an uncertainty as to whether the nighttime event complained of was in fact the same as the innocuous late afternoon event described by defendants’ witnesses, summary judgment becomes doubly inappropriate.
Although many state law torts by law enforcement officers do not rise to constitutional violations under 42 U.S.C. § 1983 (1976), 12 the constitutional question is a subtle one of mixed fact and law. Since the state-law claims based on the same events as the § 1983 claims raise genuine issues of material fact, summary judgment on Count 4 must be reversed. As some dispositions of the state-law claims might render the constitutional question moot, we decline to answer it on the present record and thus also reverse summary judgment on the § 1983 claims, without prejudice to defendants’ ability to raise the question subsequently, if it should then make a difference.
Although the district court correctly noted that North Carolina has a one-year statute of limitations for assault, battery, or false imprisonment, N.C.Gen.Stat. § 1— 54(3) (1969), it did not consider the import of N.C.Gen.Stat. § 1-52(13) (Supp.1979), effective January 1, 1976, which provides for a three-year statute of limitations for actions “[ajgainst a public-officer, for a trespass, under color of his office.” Moreover, as claims cognizable under N.C.Gen.Stat. § 109-34 (1978),
13
plaintiff’s allegations
Should it prove relevant, we note that the statute of limitations for claims under 42 U.S.C. § 1983 is taken from North Carolina’s three-year statute of limitations for “a liability created by statute, either state or federal, unless some other time is mentioned in the statute creating it.” N.C.Gen. Stat. § 1-52(2) (Supp.1979).
See Bireline v. Seagondollar,
Plaintiff’s claims under Count 4, therefore, are not time-barred.
VI.
Without stating any opinion about the merits of plaintiff’s claims, we wish to express our sympathy with the predicament of an overburdened district court which is compelled by precedent to base a denial of summary judgment on evidence which the court believes to be of little credibility. However, notwithstanding the court’s desire to see justice done and done expeditiously, on a motion for summary judgment the court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).
Dismissal of the claim in Count 3 against defendant Dale Padgett is affirmed. In other respects, the judgment of the district court is reversed, and the case is remanded to that court for further proceedings.
AFFIRMED IN PART; REVERSED IN PART.
Notes
. The complaint as originally filed also listed the Hartford Fire Insurance Company as a defendant in connection with Count 2. The dis
. The claims referred to as “Count 1” appear in Section III of the complaint; the claims called “Count 2” appear in Section IV; and so on.
. Inconsistently, the plaintiff asserts in his complaint; “Prior to the divorce Mary Franklin Carter Cole repeatedly harassed and abused the plaintiff by resorting to the Courts of the State of North Carolina and causing the malicious prosecution of the plaintiff in numerous criminal actions." (emphasis added) Yet in his Brief he asserts; “The plaintiff and the defendant, Mary Franklin Carter Cole, were previously married and divorced prior to the occurrence of any of the acts which are the subject of this action.” (emphasis added)
We shall accept the actual pleading, rather than a generalization in the Brief and proceed on the basis that the two parties were married at the time of the initiation of the criminal actions underlying the claims.
. An affidavit filed by Mary Cole stated that the house involved was James Cole’s house and that, approximately two and a half weeks after Mary Cole had permanently separated from him, someone accompanying her was shocked when she entered the house to retrieve some of her personal property.
. Since the instant complaint alleges no breach of family-relations duties which were established in a prior judicial action, we express no opinion on when, and to what extent, actions on such breaches are properly excluded from diversity jurisdiction.
. See
Winters v. Highlands Ins. Co.,
. See 10 C. Wright & A. Miller, supra, '§ 2727, at 526-28 (“Because the burden is on the mov-ant, the evidence presented to the court always is construed in favor of the party opposing the motion and he is given the benefit of all favorable inferences that can be drawn from it.”).
Because of North Carolina’s three-year statute of limitations for conversion, see N.C.Gen. Stat. § 1-52(4) (1969), judgment may hereafter properly be entered, however, without regard . to the merits, in favor of defendant Mary Cole, if and to the extent that the proof establishes that the alleged takings of plaintiff’s personal property occurred on or before November 15, 1974.
. Defendant Dale Padgett had submitted to the court an affidavit containing a denial that he had participated in any way in the burning of plaintiff’s house, but by stipulation of the parties the affidavit was withdrawn from the record and was not considered for purposes of judgment on the pleadings or of summary judgment. In indicating that the present record is insufficient to sustain a summary judgment against the plaintiff, we do so without prejudice to Padgett’s right to renew the motion for summary judgment after an expansion of the record and after adequate opportunity for discovery, should the district court in its discretion allow such expansion. We, of course, express no opinion as to how any such motion should be disposed of, bearing in mind especially the possibility of counter-affidavits or other discovery. We only wish to make clear that such a motion is not foreclosed by anything expressed in this opinion.
. Fed.R.Civ.P. 56(e) (“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”).
. If the district court had been correct in its statement that Count 3 fell within the domestic relations exception to diversity jurisdiction, we would have been constrained
sua sponte
to
. No claim of assault has been asserted in connection with Count 3.
.
See, e. g., Paul
v.
Davis,
.
See Price v. Honeycutt,