Lujan v. Chowan University et al

Filing 91

ORDER finding as moot 63 Motion to Dismiss for Failure to State a Claim; finding as moot 66 Motion to Dismiss for Failure to State a Claim; granting 85 Motion for Leave to File Third Amended Complaint. Plaintif f is DIRECTED to file his proposed amended complaint (DE 85-1) within seven days hereof. Responsive pleadings and/or any motion shall be due in the ordinary course. Signed by District Judge Louise Wood Flanagan on 2/5/2019. (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.

)
)
)
)
)
)
)
)
)
)

ORDER

This matter is before the court on defendant Chowan University’s (“Chowan”) motion to
dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 63),
defendant Lisa Bland’s (“Bland”) motion to dismiss for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6) (DE 66), and plaintiff’s motion for leave to file a third amended
complaint (DE 85). The motions have been fully briefed, and the issues presented are ripe for
ruling. For reasons discussed below, plaintiff’s motion for leave to file a third amended complaint
is granted, and defendants’ motions to dismiss are denied as moot.
STATEMENT OF THE CASE
Plaintiff Marco A. Lujan (“Lujan”) initiated this action on November 10, 2017, asserting
claims of negligence and medical malpractice against defendants, which allegedly caused plaintiff
to suffer hyperthermia and heat stroke during a soccer conditioning session held August 15, 2016.
In the interest of judicial economy, the court incorporates by reference its discussion of the
procedural background of this case from the court’s prior order dated August 8, 2018. In that order,

the court granted plaintiff leave to file his second amended complaint, and denied all pending
motions to dismiss in the case as moot.
On August 9, 2018, plaintiff filed his second amended complaint. Defendants then filed their
respective motions to dismiss for failure to state a claim on August 22, 2018. In support of their
motions, defendant Chowan argues plaintiff has pleaded professional malpractice under a theory not
recognized in North Carolina; defendant Chowan and its non-healthcare provider employees are
entitled to immunity under N.C.G.S. § 90-21.14; plaintiff’s assumed duty theories of liability are
insufficient as a matter of law; defendant Chowan cannot be held vicariously liable for causes of
action that fail against employed healthcare providers; and plaintiff has failed to adequately plead
punitive damages. Defendant Bland argues the second amended complaint fails to state a claim for
medical negligence; the second amended complaint does not allege a breach of a legally cognizable
standard of care; the second amended complaint does not allege proximate cause between an act or
omission of defendant Bland and plaintiff’s injuries; the second amended complaint fails to state a
cognizable claim for negligent hiring, training, and supervision against defendant Bland; and
plaintiff’s claim for punitive damages fails to allege the requisite aggravating circumstances.
Plaintiff filed his responses in opposition to the motions to dismiss on September 11, 2018.
In response to defendant Chowan, plaintiff argues that he has sufficiently pleaded claims pursuant
to N.C.G.S. § 90-21.12; immunity under N.C.G.S. § 90-21.14 is not available to defendant Chowan
and its employees; plaintiff has sufficiently pleaded defendant Chowan’s separate and affirmative
duty to plaintiff; plaintiff has sufficiently pleaded a claim for vicarious liability; and plaintiff has
sufficiently pleaded punitive damages. In support of his response, plaintiff submits excerpts from
the NCAA’s 2016-2017 Division II Manual (“NCAA Manual” (DE 71-2)); Guideline 2C from

2

NCAA’s 2014-2015 Sports Med. Handbook (“Guideline 2C” (DE 71-3)); the 2005 National Athletic
Trainers’ Association Code of Ethics (“Code of Ethics” (DE 71-4)); the 2015 National Athletic
Trainers’ Association Position Statement on Exertional Heat Illnesses (“Position Statement” (DE
71-5)); and the 2018 Bill Heinz Memorandum regarding Heat Acclimatization and Heat Illness
Prevention (“Heinz Memorandum” (DE 71-6)).
In response to defendant Bland, plaintiff argues that he has sufficiently pleaded claims for
medical negligence; the second amended complaint alleged that defendant Bland’s actions and
omissions proximately caused plaintiff’s injuries; plaintiff alleges defendant Bland owed him
separate affirmative duties, which she breached; plaintiff has sufficiently pleaded negligent hiring,
training, and supervision against defendant Bland; and plaintiff has adequately pleaded punitive
damages. In support of his response, defendant attaches the same supporting documents as in his
response to defendant Chowan.
On September 25, 2018, defendants filed their respective replies to plaintiff’s responses.
Defendant Bland argues that plaintiff’s attempt to state a claim for medical malpractice is not
supported by North Carolina law; plaintiff’s theory of assumption is an attempted end-run around
the legally imposed standard of care; and plaintiff fails to comply with punitive damages pleading
requirements. Defendant Chowan argues that plaintiff’s medical malpractice claims fail as a matter
of law; and negligence claims based on assumption of duty should be dismissed as a matter of law.
Following submission of defendants’ motions to dismiss, the court entered its case
management order on November 1, 2018, with discovery due by April 30, 2019, and dispositive
motions due May 31, 2019. During the course of discovery, plaintiff filed the instant motion for
leave to file a third amended complaint. The proposed amended complaint would add allegations

3

to the complaint concerning defendant Bland’s lack of training in how to use a rectal thermometer
and defendant Chowan’s failure to maintain the ice machine in the training room, based on
discovery responses received November 17, 2018, and defendant Bland’s deposition taken
November 28, 2018. In support of the motion, plaintiff attaches his proposed third amended
complaint (DE 85-1), a redlined version of this proposed third amended complaint (DE 85-2), and
excerpts from defendant Bland’s deposition (“Bland Dep.” (DE 85-3)).
Defendant Chowan responded in opposition to the motion, arguing that plaintiff unduly
delayed in seeking to amend his complaint; that plaintiff’s third amended complaint is futile; and
that defendants would be unduly prejudiced by the amendment. In support of its response, defendant
Chowan submits the deposition of Meredith Long (“Long Dep.” (DE 89-1)), and the deposition of
Michelle Aiken (“Aiken Dep.” (DE 89-2)).
Plaintiff replied that the proposed allegations in the complaint address new information that
he has discovered; and plaintiff’s claims are not futile. In support of his reply, plaintiff attaches a
letter from defendant Chowan’s defense counsel (“November 2018 Letter” (DE 90-1)), and
documents produced with the letter (“Document Production” (DE 90-2)).
STATEMENT OF FACTS
The facts alleged in the complaint1 are summarized as follows. Defendant Chowan is a
private university located in Murfreesboro, North Carolina. (Compl. ¶ 2). Defendant Chowan is
also a member of the National Collegiate Athletic Association (“NCAA”). (Id. ¶ 7). At times
pertinent to the complaint, defendant Bland allegedly was defendant Chowan’s director of sports
medicine. (Id. ¶ 3). Plaintiff is a former student at defendant Chowan where he was a member of
1
Hereinafter, all references to the “complaint” in the text and to “Compl.” in citations are to plaintiff’s
proposed third amended complaint filed December 19, 2018, (DE 85-1), unless otherwise specified.

4

the men’s soccer team. (Id. ¶ 6). As a member of the Chowan soccer team, plaintiff trained for,
practiced for and competed in intercollegiate competitions on behalf of and at the direction of the
defendant Chowan, its agents, servants and employees. (Id. ¶ 8).
On August 15, 2016, plaintiff participated in a soccer conditioning session, which included
timed runs, near defendant Chowan’s campus, at the direction of defendant Chowan. (Id. ¶ 9). Prior
to the runs, defendant Bland gave approval to the soccer coach to have his team run in extreme heat,
and permitted Michelle Aiken (“Aiken”), an unlicensed trainer, to examine plaintiff to determine
if he was healthy enough to participate. (Id. ¶¶ 10, 13). During the course of the timed runs,
plaintiff experienced severe hyperthermia and ultimately suffered a near fatal heat stroke. (Id. ¶ 14).
Plaintiff alleges numerous breaches of duties by defendants, including requiring plaintiff to
practice sports in extreme weather; permitting an unlicensed athletic trainer to examine plaintiff and
supervise team workouts; and failing to provide equipment or training necessary to properly treat
hyperthermia and exertional heat stroke. (See Compl. ¶¶ 34, 51).
Additional facts pertinent to the instant motions will be discussed below.
DISCUSSION
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

5

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).
B.

Analysis
The court first analyzes whether plaintiff’s proposed third amended complaint is futile,

drawing upon the arguments raised by the parties on defendants’ motions to dismiss plaintiff’s
second amended complaint. Next, the court evaluates whether plaintiff unduly delayed in seeking
to amend his complaint, and whether defendants are unduly prejudiced by such an amendment.
1.

Medical Malpractice

The parties dispute whether plaintiff has stated a medical malpractice claim against

6

defendant Bland and defendant Chowan.
To state a claim for medical malpractice under North Carolina law, plaintiff must plausibly
allege facts which show “(1) the standard of care, (2) breach of the standard of care, (3) proximate
causation, and (4) damages.” Turner v. Duke Univ., 325 N.C. 152, 162 (1989); Ingram v.
Henderson Cty. Hosp. Corp., Inc., 815 S.E.2d 719, 725 (N.C. Ct. App. 2018).
A physician or surgeon who undertakes to render professional services must meet
these requirements: (1) He must possess the degree of professional learning, skill and
ability which others similarly situated ordinarily possess; (2) he must exercise
reasonable care and diligence in the application of his knowledge and skill to the
patient’s case; and (3) he must use his best judgment in the treatment and care of his
patient. If the physician or surgeon lives up to the foregoing requirements he is not
civilly liable for the consequences. If he fails in any one particular, and such failure
is the proximate cause of injury and damage, he is liable.
McAllister v. Ha, 347 N.C. 638, 642 (1998) (citing Hunt v. Bradshaw, 242 N.C. 517, 521 (1955)
(citations omitted)). “The first requirement is further refined by the ‘same or similar communities’
standard and N.C.G.S. § 90–21.12.” Jackson v. Bumgardner, 318 N.C. 172, 175 (1986) (citing Wall
v. Stout, 310 N.C. 184, 192 n. 1 (1984)); see also Swink v. Weintraub, 195 N.C. App. 133, 143–44
(2009)). Specifically, the physician is now required to provide care “in accordance with the
standards of practice among members of the same health care profession with similar training and
experience situated in the same or similar communities at the time of the alleged act giving rise to
the cause of action.” N.C. Gen. Stat. § 90–21.12(a). However, the second and third requirements
do not require application of N.C. Gen. Stat. § 90–21.12(a). Swink, 195 N.C. App. at 142–43 (citing
Wall, 310 N.C. at 199 n. 2).
Proximate causes are those
which in natural and continuous sequence, unbroken by any new and independent
cause, produced the plaintiff's injuries, and without which the injuries would not
have occurred, and one from which a person of ordinary prudence could have
7

reasonably foreseen that such a result, or consequences of a generally injurious
nature, was probable under all the facts as they existed.
Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 233 (1984) (citations omitted). “A medical
negligence plaintiff must rely on expert opinion testimony to establish proximate causation of the
injury in a medical malpractice action.” Hawkins v. Emergency Med. Physicians of Craven Cty.,
PLLC, 240 N.C. App. 337, 342 (2015). “The reasons for this rule are a matter of well-established
precedent: courts must rely on medical expertise to explain medical causation, which is a matter
removed from lay knowledge.” Grodensky v. McLendon, 816 S.E.2d 267 (N.C. Ct. App.), review
denied, 821 S.E.2d 170 (N.C. 2018) (internal citations omitted).
North Carolina law defines a “health care provider” as
A person who pursuant to the provisions of Chapter 90 of the General Statutes is
licensed, or is otherwise registered or certified to engage in the practice of or
otherwise performs duties associated with any of the following: medicine, surgery,
dentistry, pharmacy, optometry, midwifery, osteopathy, podiatry, chiropractic,
radiology, nursing, physiotherapy, pathology, anesthesiology, anesthesia, laboratory
analysis, rendering assistance to a physician, dental hygiene, psychiatry, or
psychology.
N.C. Gen. Stat. § 90-21.11(1)(a). An athletic trainer is defined as “[a] person who, under a written
protocol with a physician licensed under Article 1 of Chapter 90 of the General Statutes and filed
with the North Carolina Medical Board, carries out the practice of care, prevention, and
rehabilitation of injuries incurred by athletes.” Id. § 90-523(2). Therefore, a claim against an
athletic trainer, such as defendant Bland or Aiken, for professional services rendered or not rendered
sounds as a medical malpractice claim.
The facts alleged by plaintiff are sufficient at the pleading stage to establish the standard of
care. Defendant Bland “gave her approval to the soccer coach to have his team run timed runs in
extreme heat with a heat index in excess of 105” and “permitted Michelle Aiken, an unlicensed
8

trainer, to examine [p]laintiff to determine whether he was healthy enough to participate and then
to supervise the foregoing runs.” (Compl. ¶ 10). Plaintiff also alleges that defendant Bland did not
provide “proper planning, instruction, training, medical assistance, medical and safety devices and
an adequate emergency response plan including, but not limited to, submersion in an ice or cold
water bath after he experienced a heat stroke.”2 (Id. ¶ 50). Plaintiff alleges that defendant Bland
knew or should have known of several resources provided by professional associations of which she
is a member that would have alerted her to the precautions she should have taken to avoid injury to
plaintiff.3 (See id. ¶ 51.a. – 51.c.). Moreover, plaintiff has represented he will provide expert
testimony which will disclose a violation of N.C. Gen. Stat. § 90-21.12. (Compl. ¶¶ 48, 64).
Therefore, the court infers at this stage in the case that plaintiff has plausibly pleaded an applicable
standard of care in this case. See Iqbal, 556 U.S. at 679 (“[D]etermining whether a complaint states
a plausible claim is context specific, requiring the reviewing court to draw on its experience and
common sense.”).
Based on the foregoing facts, the court also infers in evaluating the pending motions that
defendant Bland’s actions are a proximate cause of plaintiff’s injury. See Hairston, 310 N.C. at 233.
Plaintiff has plausibly alleged that defendant Bland breached her standard of care, and plaintiff
represents that expert testimony will be provided. (See Compl. ¶¶ 10, 48, 50, 64). Therefore, the
court leaves for a later day whether the requisite expert testimony elucidated in discovery shows

2

Plaintiff’s additional allegations of failure to ensure defendant Chowan had adequate necessary equipment,
such as a heat stress indicator, ice and ice water bath and rectal thermometer are related to this allegation. (Id. ¶ 51.h.).
3

The court does not rely on the documents attached by plaintiff in his responses in opposition to the motions
to dismiss because it is not clear that the information attached has been authenticated. See Kerr v. Marshall Univ. Bd.
of Governors, 824 F.3d 62, 68 (4th Cir. 2016). In any event, it is unnecessary to consider such documents in light of
plaintiffs’ allegations.

9

plaintiff’s injury was proximately caused by defendant Bland’s conduct.
The court concludes that plaintiff states a claim against defendant Bland. Moreover,
plaintiff’s allegations of vicarious liability as to defendant Chowan for the acts of its “agents,
servants, and employees” apply to plaintiff’s medical malpractice claim against defendant Bland,
Aiken, and other members of the athletic training staff.4 (See id. ¶¶ 33, 34, 39).
Defendants argue that North Carolina law defines the only applicable standard of care, and
plaintiff has failed to plead sufficient facts to show a breach of the North Carolina standard of care
based on a “similarly situated” community, pursuant to N.C. Gen. Stat. § 90–21.12(a). For the
reasons stated above, plaintiffs’ allegations are sufficient to plead a breach of the standard of care,
and therefore defendants arguments concerning the same or similarly situated communities fails at
this stage in the case.
Defendant Chowan argues that it is entitled to immunity pursuant to N.C. Gen. Stat. 90-21.14
for any first aid or emergency care provided. This argument is unavailing because the North
Carolina “Good Samaritan” statute specifically states “[n]othing in this section shall be deemed or
construed to relieve any person from liability for damages for injury or death caused by an act or
omission on the part of such person while rendering health care services in the normal and ordinary
course of his business or profession.” N.C. Gen. Stat. 90-21.14(b). Defendant Bland is reasonably
inferred to receive remuneration for her services as director of sports medicine. (See Compl. ¶ 10).
Moreover, for the reasons stated above, plaintiff has stated a medical malpractice claim as to
defendant Bland causing plaintiffs’ injuries. Finally, defendant Chowan is alleged to be vicariously

4

The court does not reach the issue of whether defendant Chowan could be held liable for medical malpractice
under a theory of “corporate negligence.” See Blanton v. Moses H. Cone Mem'l Hosp., Inc., 319 N.C. 372, 374–75
(1987). Where the court allows plaintiff’s medical malpractice claim to proceed, the court also does not address the
parties’ arguments regarding assumption of duty and the voluntary undertaking doctrine.

10

liable for defendant Bland’s actions, as well as Aiken’s actions. Therefore, under the facts alleged,
defendant Chowan is not entitled to immunity under the Good Samaritan statute for defendant
Bland’s actions, or Aiken’s actions.
For the reasons stated above, plaintiff’s medical malpractice claims against defendant Bland
and defendant Chowan are not futile.
2.

Negligence & Negligent Hiring, Supervision, and Retention

Plaintiffs also seek to bring claims of negligence and negligent hiring, supervision, and
retention against defendants.
“North Carolina does permit a proper plaintiff to bring ordinary negligence claims, in
addition to medical malpractice claims, against a health care provider.” Iodice v. United States, 289
F.3d 270, 276 (4th Cir. 2002). When a claim “arises out of policy, management, or administrative
decisions,” rather than “clinical care” provided by the health provider, the claim sounds in ordinary
negligence. Id. Negligence actions against health care providers lie where plaintiff alleges failure
in “selection of their agents,” and “fail[ing] to monitor and oversee the treatment and care of the
plaintiff.” Blanton v. Moses H. Cone Mem'l Hosp., Inc., 319 N.C. 372, 375-77 (1987).
Here, plaintiff has alleged that, among other things, defendants failed to adequately train the
athletic staff on how to handle emergency procedures, failed to provide appropriate guidance on how
to respond to heat illness, and allowed an unlicenced trainer to supervise the soccer team’s practice.
(Compl. ¶¶ 34, 51). These allegations may involve policy and management determinations,
consequently requiring them to be analyzed under ordinary negligence standards. Iodice, 289 F.3d
at 276; see also Fed. R. Civ. P. 8(d)(3) (“A party may state as many separate claims or defenses as
it has, regardless of consistency.”). Drawing an inference in favor of plaintiff that defendants failed

11

to adequately train or supervise their staff, the court holds plaintiff’s negligence and negligent hiring,
supervision, and retention claims are not futile.5
3.

Punitive Damages

Plaintiff seeks punitive damages from defendants. Under North Carolina law, “punitive
damages may be awarded . . . to punish a defendant for egregiously wrongful acts and to deter the
defendant and others from committing similar wrongful acts.” N.C. Gen. Stat. § 1D-1. “Punitive
damages may be awarded only if the claimant proves that the defendant is liable for compensatory
damages and that [fraud, malice, or willful or wanton conduct] was present and was related to the
injury for which compensatory damages was awarded[.]” Id. § 1D-15(a). Conduct is willful or
wanton when it involves “conscious and intentional disregard of and indifference to the rights and
safety of others, which the defendant knows or should know is reasonably likely to result in injury,
damage, or other harm.” Id. “‘Willful or wanton conduct’ means more than gross negligence.” Id.
§ 1D-5(7).
Where plaintiff’s claims for medical malpractice and negligence remain, the court deems
plaintiff’s punitive damages claim not futile. The court emphasizes its decision is without prejudice
to defendants raising the issue again on a more complete record at summary judgment.
4.

Undue Delay

Defendant Chowan argues that plaintiff’s motion to amend his complaint should be denied
because plaintiff was aware of the information which he seeks to add to the complaint prior to filing
the motion to amend, but unduly delayed in making the motion.

5

The court does not address at this juncture defendant Bland’s argument that she is not an employer for
purposes of a negligent hiring, supervision, and retention claim. Defendant Bland may raise this issue again at summary
judgment.

12

The court credits plaintiffs’ assertions that he did not unduly delay in seeking amendment.
Plaintiff received documents in response to a discovery request on November 21, 2018, which
plaintiff argues were responsive to its February 9, 2017 discovery request in the corresponding state
court action and he had not previously seen before. (Pl. Reply (DE 90) at 2). On November 28,
2018, plaintiff questioned defendant Bland on those documents, and during that deposition
defendant Bland admitted additional information relevant to the ice machine being broken, such as
the fact that it had been inoperable for over a month, or that defendants did not procure ice from
other sites on campus. (Pl. Reply. (DE 90) at 3). Defendant Bland also testified to the lack of
equipment in this case, which plaintiff argues is new evidence. (Pl. Reply (DE 90) at 4-5).
Finding no apparent dilatory motive based on the facts presented by the parties, the court
rejects defendants’ arguments that plaintiff unduly delayed in seeking to amend his complaint.
5.

Prejudice

Defendants argue that they would be prejudiced by plaintiffs’ amendment of his complaint.
Specifically, defendant Chowan argues that the proposed amendments “will result in [d]efendants
having to file a fourth set of responsive pleadings, motions, and counterclaims.” (Def. Resp. (DE
89) at 12). While defendants may have to incur additional costs in responding to plaintiffs’ proposed
amended complaint, such costs are not in this instance “undue prejudice” that necessitates denial of
plaintiff’s proposed third amended complaint. See Foman, 371 U.S. at 182. Therefore, for the
reasons stated above, grants plaintiffs’ motion for leave to file his proposed third amended
complaint.
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

13

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
defendant Chowan wishes to proceed on its counterclaims, it is directed to refile any counterclaims
with deference to the third amended complaint in conjunction with answer, in accordance with
Federal Rule of Civil Procedure 13.
CONCLUSION
Plaintiff’s motion for leave to file a third amended complaint (DE 85) is GRANTED.
Plaintiff is DIRECTED to file his proposed amended complaint (DE 85-1) within seven days hereof.
Responsive pleadings and/or any motion shall be due in the ordinary course. Defendants’ motions
to dismiss (DE 63, 66) are DENIED AS MOOT.
SO ORDERED, this the 5th day of February, 2019.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

14