Sansotta et al v. Town of Nags Head et al

Filing 80

ORDER denying 48 Defendant's Motion to Dismiss, 51 Plaintiff's Motion to Amend/Correct Scrivener's Error, and 59 Plaintiff's Motion to Strike. Signed by US District Judge James C. Dever III on 8/5/2011. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

NORTHERN DIVISION

No.2:10-CV-29-D

ROC F. SANSOTTA, Trustee
and Executor for the Estate of
Father Joseph Klaus, et al.,
Plaintiffs,

v.
TOWN OF NAGS HEAD,
Defendant.

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ORDER

Plaintiffs have sued the Town ofNags Head ("Town" or "defendant") and essentially contend
that the Town of Nags Head is improperly seeking to coerce plaintiffs into relinquishing their
property rights in their beach cottages without paying just compensation. The Town disagrees and
asserts four counterclaims.
On January 14,2011, the Town filed a motion to dismiss certain claims in plaintiffs' second
amended complaint [D.E. 48]. On January 26, 2011, plaintiffs filed a motion to amend their
amended complaint to correct a scrivener's error in second amended complaint [D.E. 51]. On
January 28,2011, the Town responded in opposition to the motion to amend [D.E. 53]. On January
31, 2011, plaintiffs responded in opposition to the Town's motion to dismiss [D .E. 55]. On February
22, 2011,plaintiffsmoved to strike portions ofthe Town's February 17,2011 reply brief [D.E. 59].
On February 22, 2011, the Town responded in opposition to the motion to strike [D.E. 60].
As explained below, the Town's motion to dismiss [D.E. 48], plaintiffs' motion to amend
[D.E. 51], and plaintiffs' motion to strike [D.E. 59] are denied.

I.

The Town seeks to dismiss certain claims in plaintiffs' second amended complaint and argues
that plaintiffs have failed to state a claim upon which reliefcan be granted. The court has considered
the motion to dismiss under the governing standard.

See,~,

Fed. R. Civ. P. 12(b)(6); Ashcroftv.

Iqbal, 129 S. Ct. 1937,1949 (2009); BellAtl. Corp. v. Twombly. 550 U.S. 544,555-56,563 (2007);
Coleman v. Md. ct. ofAWea1s, 626 F.3d 187, 190 (4th Cir. 2010), cert. granted, 2011 WL 500227
(U.S. June 27, 2011) (No. 10-1016); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008);
Goodman v. Praxair. Inc., 494 F.3d 458,464 (4th Cir. 2007) (en banc); Kloth v. Microsoft Corp.,
444 F.3d 312,319 (4th Cir. 2006). The Town's motion to dismiss is denied.
As for plaintiffs' motion to amend/correct the amended complaint to correct a scrivener's
error in second amended complaint ("motion to amend"), plaintiffs seek to add an allegation in their
seventh, eighth, and ninth claims that no adequate state remedies exist. In support, plaintiffs
explain the information that they failed to include in the second amended complaint and cite Federal
Rule of Civil Procedure 15(a)(2). See PIs.' Mem. Supp. Mot. Leave Am. 4--6. In opposition, the
Town argues that Rule 16' s "good cause" standard governs the motion to amend and that plaintiffs
have failed to meet the good cause standard. See Def.'s Mem. Opp'nMot. Am. 4--6. The Town also
contends that the proposed amended complaint would be prejudicial. See id. at 6-7.
Provided certain time requirements are met, a party may amend a pleading once as a matter
ofcourse. Fed. R. Civ. P. 15(a)(1). Additional amendments are allowed only with the permission
ofthe opposing party or with leave ofcourt, and such leave should be :freely given ''when justice so
requires." Fed. R. Civ. P. 15(a)(2). However, when a party files a motion to amend "after the
deadlines provided by a scheduling order have passed, [Rule 16(b)' s] good cause standard must be

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satisfied to justify leave to amend the pleadings." Nourison Rug Com. v. Parviziml, 535 F.3d 295,
298 (4th Cir. 2008). Here, the original scheduling order required that motions "to amend pleadings
... be made promptly after the information giving rise to the motion becomes known to the party
or counsel. Any such motion filed after October 29,2010, must meet the standards ofFed. R. Civ.
P. 15 and 16." [D .E. 32] at 2. Therefore, any motion to amend filed after October 29, 2010, had to
meet Rule 16(b)'s good cause standard.
"Rule 16(b)'s good cause standard focuses on the timeliness of the amendment and the
reasons for its tardy submission; the primary consideration is the diligence of the moving party."
Montgomery v. Anne Arundel County, 182 F. App'x 156, 162 (4th Cir. 2006) (per curiam)
(unpublished). Good cause exists when a party's reasonable diligence before the expiration of the
amendment deadline would not have resulted in the discovery ofthe evidence supporting a proposed
amendment. United States v. GodEn, 247 F.R.D. 503, 506 (B.D.N.C. 2007). The burden to
demonstrate good cause is on the moving party. Id. Prejudice, futility, and bad faith are "Rule 15(a)
consideration[s]," and the court should not consider them unless the movant meets its initial burden
of demonstrating "good cause" under Rule 16(b). Stonecrest Partners. LLC v. Bank of Hampton
Roads, 770 F. Supp. 2d 778, 784-85 (B.D.N.C. 2011) (quoting Nourison Rug Com., 535 F.3d at
299).
Here, plaintiffs have failed to demonstrate good cause for waiting until January 26,2011, to
seek leave to file their third amended complaint. Cf. Nourison Rug Com., 535 F.3d at 298-99;
GodEn, 247 F .R.D. at 505-08. Ifplaintiffs had been reasonably diligent, they would have included
the proposed language in the second amended complaint. Plaintiffs' explanation for their failure to
include the proposed language in counts seven, eight, and nine in the proposed third amended

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complaint falls "short ofwhat is required to satisfy the good cause standard." Nourison Rug Corp.,
535 F.3d at 298; Godwin, 247 F.R.D. at 505-08. Therefore, plaintiffs' motion for leave to file a
third amended complaint is denied.
Finally, the court has considered plaintiffs' motion to strike portions of the Town's reply
brief [D.E. 59]. The motion to strike is denied.

n.
For the reasons discussed above, defendant's motion to dismiss [D.E. 48], plaintiffs'motion
to amend/correct scrivener's error in second amended complaint [D.E. 51], and plaintiffs' motion
to strike [D.E. 59] are DENIED.

SO ORDERED. This

.5' day of August 2011.
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SC.DEVERill
States District Judge

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