Lawsuit against county moving forward

Erin Smith Staff writer

September 3, 2013

ELIZABETHTOWN — A civil lawsuit filed against Bladen County and Sheriff Prentis Benston by Jeff Smith, owner of Cybenet LLC — which operated under the name Aladdin in Dublin — continues to slowly work its way through the system.
The lawsuit stems from the Bladen County Sheriff's Office forcing Smith to cease operation of the business' electronic sweepstakes machines in March.
The county is represented by attorneys William Johnson and W. Leslie Johnson of the Johnson Law Firm of Elizabethtown. According to W. Leslie Johnson, the county is now awaiting an answer to its motion to dismiss.
“We've asked the court to go ahead and set that hearing for the motion to dismiss,” said Johnson.
He anticipates that date to be either in late September or early October.
In the motion to dismiss, the county is asking for “an order dismissing the case, in the alternative, judgement on the pleadings that plaintiffs' activities are forbidden under the Hest decision, in the alternative, Rule 17 relief that the state of North Carolina should be named as a party. Defendants also pray their attorney fees and costs be reimbursed.”
The Hest decision, which was rendered by the N.C. Supreme Court in December, upheld the validity of N.C. General Statute 14-306.4 which essentially bars “the operation of electronic machines that conduct sweepstakes through the use of an 'entertaining display.'”
The county filed its answer to Smith's complaint earlier this summer. Smith alleges that his business opened in September 2012 and offered 25 machines which provided Internet time. In addition the business employed the use of the Frontier Sweepstakes System —which the lawsuit claims is used to market and promote Internet time.
Johnson said his firm filed an “answers and affirmative defenses” also earlier this summer.
The first affirmative defense noted is “res judicata” and sites the case of Hest Technologies, Inc. v. State of North Carolina as its basis. “Res judicata” essentially is a Latin term meaning “the case or issue has already been decided,” according to
The second affirmative defense claims “… the plaintiffs are trying to hijack the issues that are going to be argued in the criminal cases now pending.”
The third affirmative defense argues that the plaintiffs have “failed to join certain necessary parties to this action including the local District Attorney and/or State Attorney General.”
The fourth affirmative defense argues the county “is not responsible for the actions of the sheriff's office” and the fifth affirmative defense argues the principle of sovereign immunity. According to Wikipedia, the principle of sovereign immunity argues that the “sovereign or state cannot commit a legal wrong and is immune to civil suits or criminal prosecution.”