Preciose et al v. State Farm Fire and Casualty Company

Filing 72

ORDER granting 60 , 62 Motion to Withdraw as Attorney. Attorney Richard G. Paxton withdrawn from the representation of Plaintiff Susan Preciose. Plaintiff Richard Preciose's Motion for Voluntary Dismissal 70 is granted and any clai ms he may have against State Farm are hereby dismissed with prejudice. Plaintiff Susan Preciose's Motion to Amend her Complaint 63 to add Alexander J. Garcia is denied. Further, the parties shall confer regarding settlement and inform the court within 30 days of this order, whether an agreement has been reached. Signed by Magistrate Judge Kimberly A. Swank on 1/11/2017. (Foell, S.)(order mailed to pro se plaintiff)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:14-CV-192-KS
SUSAN PRECIOSE and RICHARD
PRECIOSE,
Plaintiffs,
v.
STATE FARM FIRE AND CASUALTY
COMPANY,
Defendant.

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ORDER

This matter is before the court on the following motions:
1.

Motion to withdraw as counsel for Plaintiff Susan Preciose, filed by Richard G.

Paxton of Mostyn Law and John Alan Jones and G. Chris Olson of Martin & Jones, PLLC
[DE #60];
2.

Plaintiff Susan Preciose’s motion to dismiss her attorneys [DE #62];

3.

Plaintiff Susan Preciose’s motion to amend her complaint [DE #63]; and

4.

Plaintiff Richard Preciose’s motion to voluntarily dismiss his claims [DE #70].

Defendant State Farm Fire and Casualty Company (“State Farm”) opposes counsel’s withdrawal,
as well as Plaintiff Susan Preciose’s motion to amend her complaint. (See Df.’s Resp. [DE #68].)
State Farm contends that the parties previously agreed upon a settlement of Plaintiffs’ claims, and
the court should enforce the parties’ settlement.1 Plaintiff Richard Preciose’s motion to dismiss
states that it is opposed though no response in opposition has been filed.

1

State Farm previously filed a motion to enforce the parties’ settlement, which was
dismissed without prejudice on August 24, 2016. (See Order dated Aug. 24, 2016 [DE #53].) In its

I.

Counsel’s Representation of Susan Preciose
Counsel’s representation of Plaintiff Susan Preciose is the subject of their motion to

withdraw, as well as Plaintiff Susan Preciose’s motion to dismiss her attorneys. Counsel state they
are no longer able to adequately and effectively represent Susan Preciose and, therefore, seek to
withdraw from representing her in this action. (Mot. Withdraw Counsel [DE #60].) Plaintiff Susan
Preciose does not oppose counsel’s motion and has filed her own motion to excuse counsel, stating
that “all the attorneys of record[] are fired.” (Mot. Dismiss Attorney Record [DE #62].) State
Farm asks the court to deny counsel’s motion and instead enforce the settlement previously
reached by the parties.
Having carefully considered the matter, the court finds that good cause has been shown for
counsel’s withdrawal. Accordingly, the court grants counsel leave to withdraw from representing
Plaintiff Susan Preciose in this action.
II.

Motion to Amend Complaint
Plaintiff Susan Preciose moves to amend her complaint to remove her former husband,

Richard Preciose, as a party to the action and to add Alexander J. Garcia (“Garcia”) as a plaintiff.
Plaintiff contends that Richard Preciose is not a proper party to the action because has no interest
in the real property or insurance policy at issue in this case. Additionally, she contends that her
boyfriend/fiancé Garcia has been a part of the household and is a proper party to the suit. State
Farm argues that amendment should be denied because (1) the deadline for amending the pleadings
has passed; (2) Garcia lacks standing to assert any claims under the insurance policy; and (3) even
if Garcia had standing, any claims are barred by the statute of limitations.
response to the motions presently before the court, State Farm argues that enforcement is
appropriate; however, no motion seeking to enforce any settlement is currently pending before the
court.
2

Rule 15 of the Federal Rules of Civil Procedure, which generally governs the amendment
of pleadings, provides that leave to amend a complaint should be freely given when justice so
requires. Fed. R. Civ. P. 15(a)(2). However, because the time for amending the pleadings as set
forth in the court’s scheduling order has passed, Rule 16 requires an additional showing of good
cause. “The ‘“good cause” standard focuses on the timeliness of the amendment and the reasons
for its tardy submission.’” United States v. Godwin, 247 F.R.D. 503, 506 (E.D.N.C. 2007)
(quoting Rassoull v. Maximus, Inc., 209 F.R.D. 372, 374 (D. Md. 2002)). “In seeking leave to
amend, the ‘movant must demonstrate that the reasons for the tardiness of his motion justify a
departure from the rules set by the court in its scheduling order.’” Id. Moreover, a court may deny
leave to amend where amendment would be futile. Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d
462, 471 (4th Cir. 2011).
Plaintiff has not demonstrated good cause to amend her complaint to add Garcia as a
plaintiff.2 First, she has not shown that Garcia has standing to assert any claim in this action against
State Farm. Even assuming Garcia was a member of the household at the time of the alleged loss,
Plaintiff has alleged no facts to show that Garcia was an “insured” under the terms of the insurance
policy. (See Ex. A to Df.’s Resp. [DE #68-1] at 2 (defining “insured” to include residents of the
household who are relatives or under twenty-one years of age and dependent on the named
insured).) Nor is there any indication that he owned any interest in the real property. Additionally,
more than five years have elapsed since the alleged loss. Adding Garcia as a plaintiff to this action
would be futile as any claim he may have would be barred by the statute of limitations.

2

In light of Richard Preciose’s motion to voluntarily dismiss his claims, the court need not
reach Plaintiff Susan Preciose’s motion to amend as it relates to Richard Preciose.
3

III.

Voluntary Dismissal of Richard Preciose
Also before the court is Plaintiff Richard Preciose’s motion for voluntarily dismissal of his

claims. Because movant has assigned any and all interest he has in this action to Plaintiff Susan
Preciose (see Assignment Interest [DE #71 at 4]) and no claims have been brought against him in
this action, the court finds that Richard Preciose is no longer a necessary party to the action.
Accordingly, the court grants his motion to dismiss his claims with prejudice pursuant to Rule
41(a)(2) of the Federal Rules of Civil Procedure.
IV.

Settlement
The outcome of the parties’ prior settlement negotiations has been a subject of continuing

dispute. Although no motion to enforce settlement is currently pending before the court, certain
statements contained in filings by Plaintiff Susan Preciose make the court question her position
with regard to the issue of settlement. For example, in her response at DE #69, Plaintiff Susan
Preciose suggests that the court should remove Richard Preciose from the action and order that
State Farm pay her $10,000 in settlement of her claims.
CONCLUSION
For the foregoing reasons, the court ORDERS as follows:
1.

Counsel’s motion to withdraw [DE #60], joined in by Plaintiff Susan Preciose’s

motion to dismiss her attorneys [DE #62], is GRANTED;
2.

Plaintiff Richard Preciose’s motion for voluntary dismissal [DE #70] is

ALLOWED, and any claims he may have against State Farm are hereby dismissed with prejudice;
3.

Plaintiff Susan Preciose’s motion to amend her complaint [DE #63] to add

Alexander J. Garcia is DENIED; and

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4.

The parties shall confer regarding settlement and inform the court, within thirty

(30) days of the date of this order, whether an agreement has been reached.
This 11th day of January 2017.

KIMBERLY A. SWANK
United States Magistrate Judge

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