Hicks v. Transit Management of Asheville, Inc.

Filing 24

ORDER denying as moot 5 Motion to Dismiss; denying as moot 14 Motion to Strike ; granting 17 Motion for Leave to File Amended Complaint granting 19 Amended Motion for Leave to File Amended Complaint. Plaintiff sh all have 14 days from the entry of this Order to file Amended Complaint and Defendant shall have 20 days from the filing of the Amended Complaint to file its answer or otherwise respond. Signed by Magistrate Judge Dennis Howell on 11/7/2011. (pdf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv94
DAVID HICKS,
Plaintiff,
v.
TRANSIT MANAGEMENT OF
ASHEVILLE, INC., a wholly owned
subsidiary of FIRST TRANSIT, INC.,
Defendant.
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ORDER

Pending before the Court are Defendant’s Motion to Dismiss [# 5] and
Motion to Strike [# 14], and Plaintiff’s Motion for Leave to File Amended
Complaint [# 17] and Amended Motion for Leave to File Amended Complaint
[# 19]. The Court GRANTS Plaintiff’s motions [# 17 & # 19].
I.

Background

Plaintiff brought this action in the Buncombe County District Court to
recover $9,704.32 he contends he is owed in unpaid sick leave after Defendant
terminated his employment. Subsequently, Defendant removed the case to this
Court on the basis of federal question jurisdiction because it contends that this case
is governed by a collective bargaining agreement and the claim is preempted by the
Labor Management Relations Act. After removing the case, Defendant moved to

dismiss the Complaint in its entirety.
In response to the Motion to Dismiss, Plaintiff submitted two exhibits to the
Court, including his affidavit. This affidavit set out additional facts not contained
in the Complaint. Defendant then moved to strike these affidavits. Rather than
respond to the Motion to Strike, Plaintiff moved for leave to file an Amended
Complaint pursuant to Rule15 of the Federal Rules of Civil Procedure. Plaintiff
seeks leave to amend his Complaint in order to add the exhibits as attachments.
Defendant opposes granting Plaintiff leave to amend. The parties’ motions are
now properly before the Court.
II.

Analysis

Federal Rule of Civil Procedure 15(a) provides that a party may amend its
pleading after the expiration of the time periods specified in Rule 15(a)(1) "only
with the opposing party's written consent or the court's leave." Fed. R. Civ. P.
15(a)(2). Rule 15(a)(2) further provides that leave to amend shall be freely given
"when justice so requires." Id. Absent a showing of undue delay, bad faith,
futility, or prejudice to the opposing party, a court should grant a party leave to
amend. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227 (1962); Equal Rights
Center v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010); Laber v.
Harvey, 438 F.3d 404, 426-27 (4th Cir. 2006).
Plaintiff seeks leave to amend in order to attach the exhibits submitted in

response to Defendant’s Motion to Dismiss to his Amended Complaint. Plaintiff
has not previously sought leave to amend. Upon a review of the pleadings in this
case, the Court finds that granting Plaintiff leave to amend is warranted. Although
Defendant may or may not ultimately prevail on having Plaintiff’s claim dismissed,
the Court cannot say that the proposed amendments are so futile as to warrant
denying Plaintiff one opportunity to amend. Because allowing Plaintiff leave to
amend will not result in undue delay or prejudice to Defendant, and the proposed
amendments are not futile or made in bad faith, leave to amend is appropriate in
this case. See Equal Rights Center, 602 F.3d at 603; Laber, 438 F.3d at 426-27.
Accordingly, the Court GRANTS Plaintiff’s Motion for Leave to File Amended
Complaint [# 17] and Amended Motion for Leave to File Amended Complaint [#
19].
The Court, however, INSTRUCTS Plaintiff that he should file an Amended
Complaint that incorporates the factual allegations contained in his affidavit into
the body of the Amended Complaint so that Defendant can adequately respond to
the allegations. The Amended Complaint, rather than affidavits attached to it, is
the proper place for alleging all factual allegations necessary to state a claim
against Defendant. Moreover, if Defendant moves to dismiss the Amended
Complaint and Plaintiff attaches additional affidavits setting forth factual
allegations not contained in the Amended Complaint, the Court will strike the

affidavits and rule on the motion based on the well pled factual allegations
contained in the Amended Complaint.
III.

Conclusion

The Court GRANTS Plaintiff’s Motion for Leave to File Amended
Complaint [# 17] and Amended Motion for Leave to File Amended Complaint
[# 19]. Plaintiff shall have fourteen (14) days from the entry of this Order to file
his Amended Complaint. The Court DENIES as moot the Motion to Dismiss
5] and Motion to Strike [# 14]. Defendant shall have twenty (20) days from the
filing of the Amended Complaint to file its answer or otherwise respond.

Signed: November 7, 2011

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