McRae v. Perry et al
Filing
214
ORDER re: 183 Motion to Dismiss is MOOT; denying 190 Motion to Dismiss; granting 193 Motion to Dismiss; and granting 205 Motion to Dismiss. The Clerk of Court is directed to enter the appropriate Judgment of dismissal and close the case. Signed by Chief Judge Lisa G. Wood on 6/26/2013. (csr)
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Plaintiff,
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VS.
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MICHAEL B. PERRY; SSI DEVELOPMENT, *
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LLC; SCOTT COCHRAN; EDWARD
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OSTERVOLD; GLYNN COUNTY,
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GEORGIA; DOES 1-30;
BRUNSWICK-GLYNN COUNTY JOINT *
WATER AND SEWER COMMISSION; and *
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KEITH MORGAN,
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Defendants.
MARGIE MCRAE,
CV 211-193
ORDER
Presently before the Court are several motions. A final
order and judgment in this case is appropriate as all claims
against all defendants are hereby resolved as explained below.
I. Defendant Michael Perry
McRae asserted a claim of legal malpractice against
Defendant Perry, who served as McRae's counsel in a previous
lawsuit. On September 7, 2012, this Court granted Defendant
Perry's Motion for Summary Judgment. Dkt. No. 166.
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II. Defendants SSI Development, LLC, Scott Cochran, and Edward
Os tervold
McRae brought suit against SSI Development, LLC, Scott
Cochran, and Edward Ostervold for damage they allegedly caused
to McRae's pipe. See Dkt. No. 5. Cochran and Ostervold were
members of SSI Development. See Dkt. No. 5. On July 5, 2012,
SSI Development, Cochran, and Ostervold filed a Motion for
Summary Judgment. Dkt. No. 122. Ostervold also filed a
suggestion of Bankruptcy and invoked the protection of an
automatic stay pursuant to 11 U.S.C. § 362(a) (1). Dkt. No. 168.
On November 28, 2012, this Court granted Glynn County, SSI
Development, and Cochran's motions for summary judgment. See
Dkt. No. 179. Ostervold was the only remaining defendant. He
had filed for bankruptcy at the time of the summary judgment
hearing, so the automatic stay precluded his motion for summary
judgment from being entered.
On December 13, 2012, the United States Bankruptcy Court
for the Northern District of Georgia granted Ostervold
discharge. Dkt. No. 183, Ex. A. Shortly thereafter, Ostervold
filed a Motion to Dismiss. Dkt. No. 183. Ostervold's Motion to
Dismiss is MOOT because the Court may now consider and GRANT
Ostervold's earlier Motion for Summary Judgment. See Dkt. No.
122. Summary judgment in favor of Ostervold is appropriate for
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the same reasons the Court earlier granted SSI Development and
Cochran's Motions for Summary Judgment. See Dkt. No. 179.
III. Defendant Glynn County
On November 28, 2012, this Court also granted Glynn
County's Motion for Summary Judgment. See Dkt. No. 179. After
that Order was entered, McRae filed a Third Amended Complaint,
which is further discussed below. See Dkt. No. 192. In
addition to asserting new claims against new defendants, McRae's
Third Amended Complaint contained all claims and allegations
against the original defendants. To the extent that McRae seeks
to relitigate claims against Glynn County through the filing of
her Third Amended Complaint, she cannot do so. Summary judgment
has already been granted in favor of Glynn County. Accordingly,
Glynn County's Motion to Dismiss, Dkt. No. 193, is GRANTED.
IV. Defendants Brunswick-Glynn County Joint Water & Sewer
Commission and Keith Morgan
On February 4, 2013, the Court issued an Order directing
McRae to amend her complaint to identify Defendant Does 1-30
within twenty-one days. Dkt. No. 189. In an apparent but
misguided and improper effort to comply with that request, McRae
filed a Third Amended Complaint asserting new claims against the
Brunswick-Glynn County Joint Water and Sewer Commission and its
director Keith Morgan. Dkt. No. 192. McRae appears to have
interpreted the Magistrate Judge's Order directing her to
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identify the Doe Defendants as an invitation to assert entirely
new claims.
In addition to naming Does 1-30 as defendants, McRae made
the following allegations regarding the Doe Defendants in her
initial complaint and her first Amended Complaint.' See Dkt.
Nos. 1, 5. In reference to Count 3 "Damage to Property," McRae
alleged that "[a]s a direct result of the damage to her sewer
line, defendants SSI Development, LLC, Cochran Ostervald, Glynn
County and the Doe defendants caused plaintiff's property to be
uninhabitable and created a health risk." Dkt. No. 5, ¶ 94
(emphasis added). Additionally, in Count 4 "Continuing
Nuisance," McRae alleged "[a]s a direct result of the damage of
her sewer line, defendants SSI Development, LLC, Cochran,
Ostervald, Glynn County and the Doe defendants created a covert
continuing nuisance of sewage contamination that is a public
health issue." Dkt. No. 5, ¶ 95 (emphasis added). Clearly, the
Doe Defendants listed in McRae's Amended Complaint were parties
involved in the alleged damage done to McRae's pipe.
However, the "Theft by Conversion" and "Theft by Deception"
claims asserted against the new defendants concern utility bills
McRae paid for services she allegedly never received. Dkt. No.
192, 191 99-100. These are different claims than those initially
' McRae earlier sought leave to file a second amended complaint to
assert additional claims against Glynn County. See Dkt. No. 46.
That motion was denied. Dkt. No. 53.
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alleged against the Doe Defendants. Amending the complaint at
this stage in the proceedings is untimely to say the least. The
last day to file motions to amend or add parties pursuant to the
scheduling order was March 16, 2012. See Dkt. No. 38. McRae
filed her Third Amended Complaint on February 27, 2013, over
eleven months past that deadline.
Where a motion to amend an answer is filed after the
deadline contained in the scheduling order, the applicable
standard is found in Federal Rule of Civil Procedure 16, rather
than Rule 15, because the motion is a motion to amend the
scheduling order. See Sosa v. Airprint Sys., Inc., 133 F.3d
1417, 1418 (11th Cir. 1998); Pugh v. Kobelco Const. Machinery
Am., LLC, 413 F. App'x 134, 135 (11th Cir. 2011). "A schedule
may be modified only for good cause and with the judge's
consent." Fed. R. Civ. P. 16(b) (4). "This good cause standard
precludes modification unless the schedule cannot "be met
despite the diligence of the party seeking the extension."
Sosa, 133 F.3d at 1418. McRae has not articulated why she did
not raise these new claims earlier. Accordingly, McRae cannot
assert these new claims against entirely new defendants.
Brunswick-Glynn County Joint Water and Sewer Commission and
Morgan's Motion to Dismiss, Dkt. No. 205, is GRANTED.
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V. Defendants Does 1-30
Because her Third Amended Complaint did not identify the
Doe Defendants discussed in her First Amended Complaint, McRae
has not complied with this Court's request. Accordingly, the
claims against the Doe Defendants are DISMISSED.
CONCLUSION
Ostervold's Motion to Dismiss as a result of his discharge
in bankruptcy is MOOT. See Dkt. No. 183. This Court can now
GRANT Ostervold's Motion for Summary Judgment, Dkt. No. 122, and
enter judgment in his favor. McRae's "Motion to Dismiss
Complaint Against Defendant Ostervold Due to Immunity by
Bankruptcy and Opposition to Ostervold Motion to Dismiss" is
baffling and, regardless, is DENIED to the extent that it
opposes Ostervold's dismissal. See Dkt. No. 190. Glynn
County's Motion to Dismiss Plaintiff's Third Amended Complaint,
Dkt. No. 193, is GRANTED.
Defendants Brunswick-Glynn County
Joint Water and Sewer Commission and Keith Morgan's Motion to
Dismiss Plaintiff's Third Amended Complaint, Dkt. No. 205, is
also GRANTED.
The claims against the Doe Defendants identified
in the Amended Complaint are DISMISSED.
All claims in this
action have now been resolved. The Clerk of Court is directed
to enter the appropriate judgment and close the case.
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SO ORDERED,
this 26th day of June, 2013.
LISA GODBEY OOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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