John Wooton v. CL, LLC

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:09-cv-00034-FL. Copies to all parties and the district court/agency. [999019474]. Mailed to: CL, LLC, Jay Lundblad. [11-1786]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1786

JOHN D. WOOTON,
Plaintiff - Appellant,
v.
CL, LLC, a Florida Limited Liability Company; TERRENCE
COYLE, Individually and as Manager/Member of CL, LLC, a
Florida Limited Liability Company; JAY ROBERT LUNDBLAD;
PETER CHICOURIS; ANDERSON MIDGETT; STOCKTON MIDGETT; MIDGETT
REALTY, INCORPORATED,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.
Louise W.
Flanagan, District Judge. (2:09-cv-00034-FL)

Argued:

December 4, 2012

Decided:

January 10, 2013

Before GREGORY, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Gregory and Judge Agee joined.

ARGUED:
David
Hart
Nelson,
DAVID
HART
NELSON,
ESQUIRE,
Charlottesville, Virginia, for Appellant.
Jeffrey Douglass
McKinney,
BAILEY
&
DIXON,
Raleigh,
North
Carolina,
for
Appellees.
ON BRIEF: Robert H. Merritt, Jr., BAILEY & DIXON,
Raleigh, North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.

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WYNN, Circuit Judge:
This
Plaintiff

appeal
John

concerns
D.

procedural

Wooton

brought

issues

an

action

that

arose

seeking

related to his investment in a condominium project.

after

damages
In that

action, Wooten sued companies and individuals connected with the
project

alleging

misrepresentation,

fraudulent
gross

inducement
negligence,

of

contract,

negligent

conversion,

civil

conspiracy, violation of North Carolina’s Unfair and Deceptive
Trade Practices Act, violation of the North Carolina Securities
Act, violation of the Interstate Land Sales Full Disclosure Act,
and breach of contract.

The district court barred Wooton from

amending

and

the

pleadings

dismissing Wooton’s suit.
appeal.

extending

discovery,

ultimately

Wooton challenges these decisions on

For the reasons discussed below, we affirm.

I.
In the underlying action, Wooton contended that he invested
$400,000 in a condominium project that was never built, and that
his investment was not returned.

Wooton sought damages from

Defendants—Anderson and Stockton Midgett (the “Midgetts”), their
company Midgett Realty, Inc., and Peter Chicouris—alleging that

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they

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misrepresented

and

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concealed

material

facts

to

induce

Wooton to invest in the project. 1
After the Midgetts and Chicouris filed motions to dismiss,
Wooton moved to amend his Complaint, seeking to add “only four
sentences: two providing more detail regarding [his] negligent
misrepresentation claim against all defendants and two providing
more

detail

on

the

gross

negligent

misrepresentation

claim.”

Wooton v. CL, LLC, No. 2:09-CV-34-FL, at 4 (Sept. 27, 2010)
(“Order I”). 2
The

district

court

found

that

even

with

Wooton’s

amendments, the Complaint failed to survive the Midgetts’ and
Chicouris’s motions to dismiss because the Complaint contained
“conclusory allegations and mere rephrasing[s] of the cause[s]
of action;” failed to allege any contact with the Midgetts and
Chicouris prior to Wooton’s investment in the project such that
it was impossible for them to have induced Wooton to invest; and
failed to show that they owed Wooton duties of care.
7.
to

Order I at

Accordingly, the district court denied Wooton’s first Motion
Amend

the

Complaint

Midgetts and Chicouris.

and

dismissed

his

claims

against

the

Midgett Realty then moved for judgment

1

Wooton also brought claims against the project’s owner,
CL, LLC, and CL, LLC partners Terrence Coyle and Jay Lundblad,
none of whom are involved in this appeal.
2

Order I is found at J.A. 326-43.

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on the pleadings or dismissal, contending that Wooton’s claims
against it were premised on the actions of the Midgetts and thus
failed as a matter of law after the district court had dismissed
the claims against the Midgetts.
On

October

25,

2010,

nearly

a

month

after

the

district

court issued Order I, Wooton moved for leave to alter judgment
under Federal Rule of Civil Procedure 59(e) and to amend his
Complaint under Rule 15(a), attaching a Proposed Second Amended
Complaint containing significant alterations.

Then, on December

16, 2010, Wooton moved for an additional sixty days of extended
time to complete discovery and file dispositive motions.
On December 29, 2010, the district court granted Midgett
Realty’s Motion to Dismiss and denied Wooton’s various motions.
Wooton v. CL, LLC, No. 2:09-CV-34-FL (Dec. 29, 2010) (“Order
II”). 3

The district court entered final judgment on July 12,

2011, adopting in full Orders I and II.

II.
On appeal, Wooton contends that the district court erred in
denying his second Motion to Amend the Complaint.

This Court

reviews a district court’s denial of a motion to amend for abuse

3

Order II is found at J.A. 559-68.

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of discretion.

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Nourison Rug Corp. v. Parvizian, 535 F.3d 295,

298 (4th Cir. 2008).
Although district courts should freely give leave to amend
pleadings “when justice so requires,” Fed. R. Civ. P. 15(a),
“after the deadlines provided by a scheduling order have passed,
the

good

cause

standard

[of

Rule

16]

must

be

satisfied

to

justify leave to amend the pleadings,” Nourison Rug, 535 F.3d at
298.

Here, the district court determined that Wooton’s second

Motion

to

Amend

the

Complaint

was

not

timely

under

the

scheduling order and that Wooton failed to show good cause for
filing late.
Wooton
additional

Order II at 6.
devotes
facts

much

of

contained

his
in

argument
his

on

Proposed

appeal

to

the

Second

Amended

Complaint instead of the facts that allegedly prevented him from
presenting

his

Complaint

before

averments
the

Wooton

did

not

even

before

the

district

in

the

scheduling
address
court.

Proposed

order

the

had

has

Amended

expired.

untimeliness

Wooton

Second

of

showed

Indeed,

his

no

motion

abuse

of

discretion on the part of the district court, and we therefore
affirm the decision to deny Wooton’s second Motion to Amend the
Complaint.
Wooton

also

contends

that

the

district

court

erred

in

denying as moot his Motion to Alter or Amend Judgment as to
Order I, which dismissed Wooton’s claims against the Midgetts
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and

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Chicouris

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based

on

the

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insufficiency

of

the

pleadings.

Because Wooton’s motion to alter or amend was premised entirely
on the additional facts alleged in his Proposed Second Amended
Complaint, he can prevail on this argument only if the district
court should have allowed him to amend the pleadings.
already

determined

denying

Wooton’s

that

the

second

district

Motion

to

court

Amend

did

err

in

Complaint,

the

not

Having

we

conclude the district court did not err in also denying Wooton’s
Motion to Alter or Amend Judgment.
Wooton
discretion
discovery.

next
in

argues

denying

that

his

the

motion

district
to

extend

court
the

abused

its

timeline

for

This Court gives district courts “‘wide latitude in

controlling discovery’” and will not disturb discovery orders
“‘absent a showing of clear abuse of discretion.’”

Rowland v.

Am. Gen. Fin., Inc., 340 F.3d 187, 195 (4th Cir. 2003) (quoting
Ardrey

v.

United

Parcel

Serv.,

798

F.2d

679,

682

(4th

Cir.

1986)).
Here, the district court determined that Wooton had “failed
to diligently use the additional time allowed [by an earlier
extension of discovery] to complete the necessary discovery.”
Order II at 9.

The reasons Wooton offers for needing additional

discovery—such

as

additional

to

review

depositions—are

discovery

insufficient

materials

and

take

to

that

the

show

district court abused its discretion in refusing to grant his
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motion.

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Accordingly, we affirm the district court’s denial of

Wooton’s Motion to Extend Discovery Deadlines.
Finally, Wooton argues that the district court erred in
dismissing his claims.

Because this argument is premised on the

acceptance of the facts included in Wooton’s Proposed Second
Amended Complaint, which the district court did not abuse its
discretion in rejecting, 4 we affirm the dismissal of Wooton’s
Complaint.

III.
For the reasons discussed above, we affirm the district
court’s denial of Wooton’s motions to amend his Complaint, alter
judgment, and extend discovery.

Further, we affirm the district

court’s dismissal of Wooton’s Complaint.
AFFIRMED

4

We decline to consider whether, as Wooton argues, this
Court should adopt the Seventh Circuit’s rule for accepting an
unsubstantiated version of the facts on appeal to review a
motion to dismiss. See Reynolds v. CB Sports Bar, Inc., 623 F.3d
1143, 1146-47 (7th Cir. 2010).

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