Spring v. The Board of Trustees of Cape Fear Community College

Filing 102

ORDER granting 82 Motion for Leave to File Second Amended Complaint, granting 80 Motion to Quash, and granting 93 Motion to Quash. Plaintiff is DIRECTED to file his second amended complaint within five days of the date of entry of this order. Signed by District Judge Terrence W. Boyle on 8/7/2016. Counsel is reminded to read the order in its entirety for important deadlines and information. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:15-CV-84-BO

TED D. SPRING,

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Plaintiff,
V.

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THE BOARD OF TRUSTEES OF CAPE FEAR
COMMUNITY COLLEGE, et al.,

ORDER

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Defendants.

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This matter is before the Court on motions to quash by defendant Burney and the State
Auditor ofNorth Carolina and plaintiffs motion for leave to file a second amended complaint.
The appropriate responses and replies have been filed and the matters are ripe for ruling. For the
reasons discussed below, the motions are granted.
BACKGROUND
The Court incorporates by reference as if fully described herein the background and
procedural history ofthis matter as recited in its order filed September 18, 2015. [DE 67]. In
summary, plaintiff filed this suit against his former employer alleging claims for breach of the
employment agreement between plaintiff and the Board of Trustees, a federal claim under 42
U.S.C. § 1983 for violation of plaintiffs constitutionally protected property and liberty interests
in his employment, and a claim for attorney's fees pursuant to 42 U.S.C. § 1988.
ANALYSIS
The case has proceeded through discovery, and now before the Court are two motions to
quash and a motion by plaintiff to amend his complaint for a second time. Since the filing of
Burney's motion to quash and plaintiffs motion to file a second amended complaint, the

scheduling order was amended to extend the discovery deadline to June 30, 2016, and the
dispositive motion filing deadline to July 29, 2016. [DE 85].
I.

BURNEY'S MOTION TO QUASH

Defendant Burney seeks to quash a subpoena duces tecum directed to non-party Morgan
Stanley Wealth Management, or alternatively a protective order which would allow him to redact
privileged and confidential information. See 9A Charles A. Wright & Arthur R. Miller, Federal

Practice & Procedure § 2549 ("Ordinarily a party has no standing to seek to quash a subpoena
issued to someone who is not a party to the action, unless the objecting party claims some
personal right or privilege with regard to the documents sought."); see also United States v.

Idema, 118 F. App'x 740, 744 (4th Cir. 2005). The first basis for Burney's request to quash the
subpoena, namely the service of the subpoena too close in time to the expiration of the discovery
period in April 2016, is now moot. Burney further contends that the information sought by the
subpoena is duplicative of documentation already produced to plaintiff by the twelve other
defendant-trustees in this matter.
Rule 45 ofthe Federal Rules of Civil Procedure provides that on a timely motion a court
must under certain circumstances, including when a subpoena would subject a witness to undue
burden, quash or modify a subpoena. Fed. R. Civ. P. 45(3)(A). In deciding whether to quash a
subpoena or issue a protective order, a court balances the relevance of the information sought,
the need of the information sought, issues concerning confidentiality, and the potential for harm
to any party. Insulate Am. v. Masco Corp., 227 F.R.D. 427, 432 (W.D.N.C. 2005).
Undue burden may be found where a subpoena is directed at information held by a nonparty and the information is available from another source. See, e.g., In re Subpoena of Daniel

Drasin, No. 13-CV-00304, 2014 WL 585814, at *6 (D. Md. Feb. 12, 2014). Plaintiffhas not

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responded to Burney's argument that the information sought is duplicative of information sought
from other defendants, and the Court finds that under these circumstances the subpoena duces
tecum directed at information held by Morgan Stanley Wealth Management is appropriately
quashed.

II.

STATE AUDITOR'S MOTION TO QUASH

The State Auditor of North Carolina has moved to quash a subpoena issued to her
commanding her to appear for a deposition, contending that the subpoena seeks disclosure of
protected matter and is unduly burdensome. Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv). The State
Auditor is not a party to this action and was not personally involved her office's investigation of
Cape Fear Community College or in drafting the investigative report. Moreover, the State
Auditor has issued her report which represents her official position about the matters contained
therein. See [DE 93-2 ,, 7-10].
The scope of discovery permitted under Rule 45 is the same as the scope allowed under
Rule 26, and relevance is "the foundation for any request for production, regardless of the
individual to whom a request is made." Cook v. Howard, 484 F. App'x 805, 812 (4th Cir. 2012)
(unpublished). Plaintiffs employment with Cape Fear Community College ended on January
22,2015. The State Auditor's investigation began on February 5, 2015, and her report was
issued on July 28, 2015. [DE 93-2, ,5;7]. The State Auditor's investigation and report having
occurred after plaintiffs separation from the College, the Court fails to see the relevance of
evidence which could be gathered from deposing the State Auditor as she played no part in the
process afforded by and decision of the Board of Trustees regarding plaintiffs employment.
This is true irrespective of the fact that the State Auditor's report contains information about
plaintiffs actions during his tenure at the college; because the information contained in the

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report was not available to defendants prior to their decision to terminate or constructively
discharge plaintiff, the Court finds that requiring the State Auditor to sit for a deposition in this
matter would serve no relevant purpose and would be unduly burdensome. The motion to quash
is therefore granted.
Ill.

MOTION TO AMEND COMPLAINT

Plaintiff moves for leave to file a second amended complaint. Defendants consent in part
to plaintiffs motion, consenting to the substitution of parties as defendants in their official
capacities but opposing plaintiffs request to add a sixth, alternative claim for relief for breach of
an alleged verbal severance agreement.
Federal Rule of Civil Procedure 15 requires that leave to amend should be "freely given"
by the Court when "justice so requires." Fed. R. Civ. P. 15(a). A court should deny leave "only
when the amendment would be prejudicial to the opposing party, there has been bad faith on the
part of the moving party, or the amendment would have been futile." Laber v. Harvey, 438 F.3d
404, 426 (4th Cir. 2006) (en bane). Amendment of a complaint to add an additional claim is
futile when the additional claim would not survive a motion to dismiss under Rule 12(b)( 6). See,
e.g., Katyle v. Penn Nat'/ Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011).
The requirements for an enforceable contract under North Carolina law are assent,
mutuality of obligation, and definite terms. Charlotte Motor Speedway, LLC v. Cty. of
Cabarrus, 230 N.C. App. 1, 7 (2013). Defendants contend that plaintiffs additional claim fails
for lack of consideration. See Wellington-Sears & Co. v. Dize Awning & Tent Co., 196 N.C. 748
(1929) ("Mutuality of promises means that promises, to be enforceable, must each impose a legal
liability upon the promisor. Each promise then becomes a consideration for the other.").
Defendants further argue that plaintiffs claim fails because of lack of definiteness of the offer.

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In considering whether plaintiff has stated a claim for breach of contract as to his
severance agreement, the Court must consider the allegations in the complaint in the light most
favorable to plaintiff and accept plaintiffs well-pleaded allegations as true. My/an Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). The Court has reviewed plaintiffs alternative claim

for relief in light of the applicable standard and finds that plaintiffhas sufficiently alleged the
required elements. The motion for leave to file is therefore granted.
CONCLUSION
For the foregoing reasons, plaintiffs motion for leave to file a second amended
complaint [DE 82] is GRANTED. Defendant Burney's motion to quash [DE 80] is GRANTED
and movant State Auditor ofNorth Carolina's motion to quash [DE 93] is GRANTED.
Plaintiff is DIRECTED to file his second amended complaint within five days ofthe date
of entry of this order. Defendants are ALLOWED fourteen days from the date of filing of the
second amended complaint to amend their motion for summary judgment. Plaintiffs response to
the motion for summary judgment shall be filed within twenty-one days ofthe date of filing of
the amended motion or the expiration of the time for filing an amended motion, whichever is
earlier.

SO ORDERED, this

_J_ day of August, 2016.

~u./.1~
RRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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