Lujan v. Chowan University et al
Filing
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ORDER finding as moot 32 Motion to Dismiss; finding as moot 36 Motion to Dismiss for Failure to State a Claim; finding as moot 42 Motion to Dismiss for Failure to State a Claim; granting 47 Motion to File Second Am ended Complaint; finding as moot 24 Motion to Dismiss for Failure to State a Claim. Plaintiff is DIRECTED to file the amended complaint within seven days hereof. Signed by District Judge Louise Wood Flanagan on 8/8/2018. (Collins, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
NO. 2:17-CV-57-FL
MARCO A. LUJAN,
Plaintiff,
v.
CHOWAN UNIVERSITY and LISA
BLAND,
Defendants.
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ORDER
This matter is before the court on defendant Chowan University’s (“Chowan”) motion to
dismiss, (DE 24), plaintiff’s motions to dismiss Chowan’s counterclaims, (DE 32, 42), defendant
Lisa Bland’s (“Bland”) motion to dismiss the amended complaint, (DE 36), and plaintiff’s motion
to file a second amended complaint. (DE 47). The motions have been fully briefed, and, in this
posture, the issues presented are ripe for ruling. For reasons noted, plaintiff’s motion to file a second
amended complaint is granted, and all pending motions to dismiss are denied as moot.
BACKGROUND
Defendant Chowan is a private university located in Murfreesboro, North Carolina. At times
pertinent to the complaint, defendant Bland allegedly was Chowan’s director of sports medicine.
Plaintiff is a former student at Chowan where he was a member of the men’s soccer team. Plaintiff
initiated this action November 10, 2017, asserting claims of negligence and/or medical malpractice
against defendants, which allegedly caused plaintiff to suffer hyperthermia and heat stroke during
a soccer conditioning session held August 15, 2016.
On December 26, 2017, defendant Chowan moved to dismiss plaintiff’s complaint, and,
simultaneously, filed its answer and counterclaim for declaratory judgment. On January 5, 2018,
plaintiff amended the complaint as a matter of right. On January 10, 2018, plaintiff moved to
dismiss Chowan’s counterclaim. On January 18, 2018, the court issued a text order affording
Chowan 10 days to show cause why its motion to dismiss should not be denied as moot. Chowan
responded January 29, 2018, contending that the amended complaint fails to rectify deficiencies in
the original complaint such that Chowan’s December 26, 2017, motion to dismiss may be treated
as a motion to dismiss the amended complaint as well.
Defendant Bland filed no pleadings responsive to the original complaint, but, after obtaining
extension of time to do so, timely moved for dismissal of the amended complaint January 13, 2018.
On February 2, 2018, plaintiff filed his motion to dismiss counterclaim set forth in Chowan’s
December 26, 2017, answer to the original complaint. On January 24, 2016, Chowan answered the
amended complaint and amended its counterclaim as of right, the latter of which is identical to the
original counterclaim except insofar as it invokes 28 U.S.C. § 2201 as a basis for issuance of
declaratory judgment in addition to earlier-asserted authority under North Carolina law. Plaintiff
moved for dismissal of Chowan’s amended counterclaim February 2, 2018. On February 13, 2018,
plaintiff moved to file a second amended complaint. Defendant Bland responded in opposition to
this motion, defendant Chowan did not, and the deadline to do so has elapsed.
DISCUSSION
Where the court grants plaintiff’s motion to file a second amended complaint, any
consideration of alleged facts is premature at this juncture. Accordingly, the court proceeds
immediately to its discussion of the issues presented.
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A.
Standard of Review
Where, as here, a party seeks leave to amend after a responsive pleading or Rule 12(b)
motion has been filed, the party “may amend its pleading only with the opposing party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when
justice so requires.” Id. “In the absence of any apparent or declared reason – such as undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, futility of amendment, etc. – the leave sought should, as the rules require, be ‘freely
given.’” Foman v. Davis, 371 U.S. 178, 182 (1962).
With respect to futility, the court may deny leave to amend “if the proposed amended
complaint fails to state a claim under the applicable rules and accompanying standards.” Katyle v.
Penn Nat. Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011). A complaint states a claim if it contains
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Asking for plausible grounds . . . does not impose a probability requirement at the
pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will
reveal [the] evidence” required to prove the claim. Twombly, 550 U.S. at 556. In evaluating the
complaint, “[the] court accepts all well-pled facts as true and construes these facts in the light most
favorable to the plaintiff,” but does not consider “legal conclusions, elements of a cause of action,
. . . bare assertions devoid of further factual enhancement[,] . . . unwarranted inferences,
unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591
F.3d 250, 255 (4th Cir. 2009).
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B.
Analysis
Plaintiff seeks to add allegations that he complied with the requirements of North Carolina
Rule of Civil Procedure 9(j), which provides that any complaint of medical malpractice “shall be
dismissed unless [t]he pleading specifically asserts that the medical care and all medical records
pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have
been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule
702 of the [North Carolina] Rules of Evidence and who is willing to testify that the medical care did
not comply with the applicable standard of care.” N.C. Gen. Stat. § 1A-1, Rule 9(j) (“N.C. Rule
9(j)”).
Defendant Bland does not dispute that, had plaintiff’s original complaint featured the
allegations that plaintiff seeks to add, the complaint would have complied with N.C. Rule 9(j).1
Rather Bland argues that under precedent established by the North Carolina Court of Appeals, a
pleading that fails to comply with Rule 9(j) cannot be salvaged by an amended complaint, and,
therefore, any amendment to the complaint is futile under the standards pertinent to Federal Rule
of Civil Procedure 15(a)(2).
The narrow issue presented is whether plaintiff may amend his complaint. Federal Rule of
Civil Procedure 15(a) provides an answer. It states, as set forth above, that “a party may amend its
pleading with . . . the court’s leave [and] [t]he court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Where a Federal Rule of Civil Procedure answers a question
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No party has addressed whether N.C. Rule 9(j) applies in this diversity action under Erie
Railroad Company. v. Tompkins and its progeny. 304 U.S. 64 (1938); see also, Hanna v. Plumer,
380 U.S. 460 (1965); Shady Grove Orthopedic Assocs., PA v. Allstate Ins. Co., 559 U.S. 393
(2010).
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in dispute, “it governs—[state] law notwithstanding—unless it exceeds statutory authorization or
Congress’s rulemaking power.” Shady Grove, 559 U.S. at 398 (holding that a Federal Rule of Civil
Procedure governs the circumstances to which it applies unless it is unconstitutional or exceeds the
scope of the Rules Enabling Act, which provides that the Federal Rules of Civil Procedure “shall
not abridge, enlarge, or modify any substantive right [28 U.S.C.] § 2072(b)”).
In Shady Grove, the Supreme Court held that Federal Rule of Civil Procedure 23 allowed
the case then at bar, in which the substantive law of New York governed claims at issue, to proceed
as a class action notwithstanding existence of a New York statute that purported to preclude “any
suit to recover a ‘penalty’ from proceeding as a class action.” Id. at 397. The Court held that even
where the New York’s Legislature’s objective in precluding availability of class actions in cases
involving penalties arguably was intended to protect defendants from “overkill” judgments, where
the New York law achieved that objective by restricting availability of class actions, it was
preempted, for purposes of diversity actions in federal court, by Rule 23. See id. at 403–404.
Authority from the North Carolina Court of Appeals, such as Alston v. Hueske and Keith v.
Northern Hospital District of Surry County, suggests that the purpose of North Carolina’s Rule 9(j)
is to relieve defendants from the burden of litigating frivolous medical malpractice cases. 244
N.C.App. 546, 553 (2016); 129 N.C.App. 402, 405 (1998). However, as the North Carolina courts
have interpreted it, Rule 9(j) achieves that objective by restricting availability of amended pleadings.
See Alston, 244 N.C.App. at 553. Therefore, where N.C. Rule 9(j) addresses the circumstances
under which a party may take an action permitted by the Federal Rules of Civil Procedure, as in
Shady Grove, the pertinent Federal Rule, namely Rule 15(a)(2), governs. 559 U.S. at 398–99.
Defendant Bland’s arguments to the contrary fail, and under Rule 15(a)(2), where a party requests
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leave to amend a complaint to correct deficiencies in earlier pleadings, such leave is to be “freely
given.” Foman, 371 U.S. at 182.
Bland argues, in addition, that where plaintiff already has amended the complaint as of right
and filed a separate action in state court which voluntarily was dismissed, plaintiff should not be
allowed leave to file yet a fourth complaint. Indeed, case law interpreting Rule 15(a) holds that
“repeated failure to cure deficiencies by amendments previously allowed” may constitute a basis to
deny a motion to amend. Id. However, prior amendment as of right and complaints filed in other
jurisdictions do not constitute “amendments previously allowed” as contemplated by Forman. Id.
Moreover, no evidence of any proceeding in another jurisdiction now is before the court, and the
court will not, in this instance, rest denial of plaintiff’s motion to amend on Bland’s unverified
statements, which stand unsupported by documentary evidence, summarizing proceedings
elsewhere. For the foregoing reasons, plaintiff’s motion to file a second amended complaint is
granted.
Turning to what remains, as a general rule, “an amended pleading ordinarily supersedes the
original and renders it of no legal effect.” Young v. City of Mount Ranier, 238 F.3d 567, 573 (4th
Cir. 2001) (internal quotations omitted); see also 6 Charles Alan Wright, et al., Fed. Prac. & Proc.
§ 1476 (3d ed. 1998) (“A pleading that has been amended under Rule 15(a) supersedes the pleading
it modifies and remains in effect throughout the action unless it subsequently is modified. . . . Once
an amended pleading is interposed, the original pleading no longer performs any function in the
case”). Where an amended complaint is forthcoming, motions to dismiss earlier complaints are
denied as moot. Moreover, where defendant Chowan’s counterclaims incorporate allegations in
plaintiff’s earlier complaint, which now are “of no legal effect[,]” Young, 238 F.3d at 573, if
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defendant Chowan wishes to proceed on its counterclaims, it is directed to refile any counterclaims
with deference to the second amended complaint in conjunction with answer, in accordance with
Federal Rule of Civil Procedure 13. Where Chowan’s counterclaims are now “of no legal effect[,]”
id., plaintiff’s motions to dismiss same also are denied as moot.
CONCLUSION
Plaintiff’s motion to file a second amended complaint, (DE 47), is GRANTED. Plaintiff is
DIRECTED to file the amended complaint within seven days hereof. Responsive pleadings and/or
any motion shall be due in the ordinary course. All pending motions to dismiss, (DE 24, 32, 36, 42)
are DENIED AS MOOT.
SO ORDERED, this the 8th day of August, 2018.
_____________________________
LOUISE W. FLANAGAN
United States District Judge
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