R.S. V. BOARD OF DIRECTORS OF WOODS CHARTER SCHOOL COMPANY, ET AL.
MEMORANDUM ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 01/09/2018. Plaintiff's motion for leave to file a second amended complaint 31 is DENIED. The court directs the Magistrate Judge to set a date for the existing Defendants to respond the first amended complaint, deadlines for the filing of dispositive motions, and any other deadline deemed appropriate. (Coyne, Michelle)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
R.S., a minor, by and through )
his Father, RONALD E. SOLTES, )
BOARD OF DIRECTORS OF
WOODS CHARTER SCHOOL COMPANY, )
WOODS CHARTER SCHOOL, and
DOES 1 TO 10, INCLUSIVE.
This case is before the court on the motion of Plaintiff R.S.,
a minor, by and through his father, Ronald E. Soltes, to file a
second amended complaint that would add claims and Defendants to
Defendants Board of Directors of Woods
Charter School Company and Woods Charter School oppose the motion
(Doc. 34), and Plaintiff has filed a reply (Doc. 35).
reasons set forth below, the motion will be denied.
This case has been unnecessarily plagued by delay. The action
was filed on February 16, 2016, challenging the decision of a State
Review Officer as to the special education of R.S. under the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400
Defendants filed answer in May 2016, and the
parties filed initial Rule 26(f) reports in August 2016.
8, 12, 15.)
Plaintiff sought additional electronic discovery and
agreed to complete discovery and seek leave to add parties or amend
pleadings by December 29, 2016.
(Doc. 15 at 2.)
An initial pretrial conference was held on August 29, 2016,
after which the Magistrate Judge permitted Plaintiff to brief the
Magistrate Judge issued a Memorandum Opinion and Order denying
Plaintiff’s request for additional discovery.
(Doc. 19 at 14–15.)
The action would proceed on review of the administrative record,
which was being gathered.
The parties were given until February
14, 2017, within which to file a joint Rule 26(f) report.
The parties agreed to a mediation schedule but differed on
a schedule for dispositive motions.
(Doc. 20 at 2–4.)
sought a schedule that would permit the filing of an amended
complaint that purported to include “additional facts and legal
grounds challenging the Review Officer’s Decision,” additional
defendants who allegedly “violated Plaintiff’s right of privacy by
using electronic equipment,” and the “identity of DOES 1-10, who
information regarding Plaintiff.”
(Id. at 3.)
On February 22,
2017, the Magistrate Judge granted Plaintiff until March 24, 2017,
to file a motion to amend with a redlined version of the proposed
On March 24, 2017, Plaintiff moved to amend the complaint and
filed a proposed first amended complaint that was redlined, as
Plaintiff urged that the amendment could
not be prejudicial as it “simply clarifies the grounds supporting
Plaintiff’s appeal of the SRO Decision.”
(Id. at 5.)
the amendment cause delay, Plaintiff represented, “because the
discovery and Defendants do not seek to conduct discovery.”
Defendants opposed the amendment.
A mediator was appointed, but Plaintiff’s counsel failed to
be present for the mediation within the time allowed.
(Doc. 26 at
Thereafter, Plaintiff’s counsel moved to withdraw, with the
consent of Plaintiff.
(Docs. 27, 28.)
The Magistrate Judge
granted the motion to withdraw and stayed the deadline for filing
dispositive motions to the earlier of 90 days or until new counsel
On August 3, 2017, the undersigned granted Plaintiff’s motion
Plaintiff’s deadline for filing the new pleading until the earlier
of ten days after the appearance of Plaintiff’s substitute counsel
or August 31, 2017.
Plaintiff’s new counsel appeared
on August 31 and filed the first amended complaint that same day.
(Docs. 30, 32.)
However, new counsel also moved to file a second
amended complaint – the instant motion.
of Defendants, the Magistrate Judge stayed the time to respond to
the first amended complaint pending disposition of the motion to
file the second amended complaint.
Leave to amend is governed by Federal Rule of Civil Procedure
Plaintiff acknowledges that the first amended complaint can
be amended again “only with the opposing party’s written consent
or the court’s leave.”
Fed. R. Civ. P. 15(a)(2).
Leave is to be
freely granted “[i]n 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.”
v. Davis, 371 U.S. 178, 182 (1962); see also Katyle v. Penn Nat’l
Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011) (noting that
although district courts should freely grant leave to amend a
complaint, a court may deny leave when an amendment would be
futile, i.e., when it fails to state a claim); Equal Rights Center
v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (noting
that a district court need not approve an amendment where doing so
would be prejudicial to the opposing party, is the result of bad
faith, or would be futile).
Here, Plaintiff’s 52-page second amended complaint seeks to
add both claims and parties.
Plaintiff has not
provided a redline version of the complaint, and the PDF version
Plaintiff filed is not word-searchable.
The caption drops the
referenced in the body of the pleading) and seeks to add the North
Carolina State Board of Education, the North Carolina Department
of Public Instruction, and seven persons in both their individual
Kathleen St. Lawrence, Cotton Bryan, Dee Nachmen, Amy Odom, and
(Id. at 1.)
However, none of these individuals is
addressed in the recitation of the parties, and three of them,
Beeson, Nachmen and Huff, are not named anywhere in the body of
The pleading seeks to add against the individual
Defendants claims of intentional infliction of emotional distress
(ninth claim of relief) and negligent infliction of emotional
distress (tenth claim of relief).
(Id. at 47–49.)
There is no
claim for invasion of privacy, which Plaintiff had mentioned
Plaintiff contends that these claims were intended to be
included in the first amended complaint.
(Doc. 35 at 11–13.)
proposed second amended complaint seeks to transform this action
from an appeal of the State Review Officer’s decision into a new
lawsuit against new Defendants based on newly-asserted substantive
claims for injunctive relief and damages.
delay the resolution of the action.
It would unnecessarily
The new Defendants would be
entitled to a reasonable time to retain counsel, evaluate and
discovery, consider and file dispositive motions, and prepare for
Plaintiff’s representation that the new parties would
have four to six weeks within which to conduct additional discovery
(Doc. 31 at 9) therefore vastly underestimates the delay that would
Discovery has closed over a year ago, and the court
granted Plaintiff’s request to file the first amended complaint
because he specifically represented that it only clarified the
existing causes of action and did not add parties or claims.
Plaintiff rests the delay on his obtaining new counsel in the
deficiencies and “without access to all information provided to
(Id. at 10.)
This may be, but it was Plaintiff
who wished to dismiss his former counsel well into the action, and
the court generously granted him 90 days to find a new lawyer.
Plaintiff cannot now complain that he did not have sufficient time
to retain his counsel.
New counsel steps into this action as it
has developed, complete with its prior history.
Moreover, the proposed pleading is fraught with problems.
proposes to add claims against individuals in their official
capacity, even though those claims would be redundant of claims
against the school.
Love-Lane v. Martin, 355 F.3d 766, 783 (4th
Three individuals sought to be added are not even
mentioned in the body of the lawsuit, and the claims against them
would be futile.
Perkins v. United States, 55 F.3d 910, 917 (4th
Cir. 1995) (noting that “the district court was justified in
denying [plaintiff’s] motion to amend her complaint because the
proposed amendments could not withstand a motion to dismiss”).
Moreover, the intentional and negligent infliction of emotional
distress claims fail to name which Defendant or Defendants are
allegedly liable, instead impermissibly lumping them together as
(Doc. 31-7 at 47–49.)
dismissal for that reason alone.
These claims are subject to
Snipes v. Alamance Cnty. Clerk
of Courts, 1:11CV1137, 2013 WL 4833021, at *4 (M.D.N.C. Sept. 10,
2013) (“The failure to specify which Defendant allegedly took what
action(s) renders these claims deficient.”); Bryant v. Wells Fargo
Bank, Nat’l Ass’n, 861 F. Supp. 2d 646, 660 (E.D.N.C. 2012)
(concluding that a complaint’s general reference to “Defendants”
violated the notice pleading requirements of Federal Rule of Civil
Procedure 8(a)(2)); Bentley v. Bank of Am., N.A., 773 F. Supp. 2d
1367, 1373–75 (S.D. Fla. 2011) (dismissing a plaintiff’s claims
for “improperly lump[ing] Defendants together”).
Leave to amend is ordinarily freely given.
is no justification for the undue delay in this case.
has been pending for almost two years, and the motion to file the
second amended complaint seeks to enlarge and transform the action.
It will be denied, and this case will proceed to resolution
For all these reasons, therefore,
IT IS ORDERED that Plaintiff’s motion for leave to file a
second amended complaint (Doc. 31) is DENIED.
The court directs
the Magistrate Judge to set a date for the existing Defendants to
respond to the first amended complaint, deadlines for the filing
of dispositive motions, and any other deadline deemed appropriate.
Thomas D. Schroeder
United States District Judge
January 9, 2018
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