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AGI Assocs., LLC v. City of Hickory

United States Court of Appeals, Fourth Circuit

December 11, 2014

AGI ASSOCIATES, LLC, Plaintiff - Appellee,
v.
CITY OF HICKORY, NORTH CAROLINA, Defendant - Appellant, and PROFILE AVIATION CENTER, INCORPORATED, Defendant

Argued October 28, 2014

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. (5:13-cv-00061-RLV-DCK). Richard L. Voorhees, District Judge.

ARGUED:

J. Samuel Gorham, III, John William Crone, III, GORHAM & CRONE, LLP, Hickory, North Carolina, for Appellant.

Edward Bilbro Davis, BELL, DAVIS & PITT, P.A., Charlotte, North Carolina, for Appellee.

ON BRIEF:

Frank C. Newton, Jr., Charlotte, North Carolina, for Appellant.

Adam T. Duke, BELL, DAVIS & PITT, P.A., Winston-Salem, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and DAVIS, Senior Circuit Judge. Senior Judge Davis wrote the opinion, in which Chief Judge Traxler and Judge Diaz joined.

OPINION

Page 577

DAVIS, Senior Circuit Judge:

This case concerns a question of North Carolina law: whether governmental immunity from equitable claims is waived when a county or municipality acts in a proprietary, rather than governmental, capacity. The district court answered that question in the affirmative and denied Appellant City of Hickory's motion to dismiss for lack of subject matter jurisdiction. For the reasons that follow, we affirm.[1]

I.

In January 2013, Appellee AGI Associates, LLC, commenced this action against City of Hickory and Profile Aviation Center, Inc. on claims arising out of an agreement between Hickory and Profile. Jurisdiction was based on diversity of citizenship. Hickory and Profile agreed that Hickory ...


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