Hicks v. Transit Management of Asheville, Inc.

Filing 26

ORDER the Court STRIKES the 25 Amended Complaint for failure to comply with a lawful Order of the Court. Signed by Magistrate Judge Dennis Howell on 11/28/11. (ejb)

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

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 sets out additional facts not contained
in the Complaint. Defendant then moved to strike this affidavit. 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. The Court
granted Plaintiff leave to file an Amended Complaint in this case. (Order, Nov. 7,
2011.) The Court’s Order also directed Plaintiff as follows:
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.
(Order at p. 3-4, Nov. 7, 2011.)
Plaintiff filed his Amended Complaint on November 18, 2011. The
Amended Complaint contained three additional attachments, including the affidavit
of Plaintiff. The factual allegations of the Amended Complaint, however, are
identical to the allegations contained in the Complaint. In fact, Plaintiff’s
Amended Complaint contains only the following additional paragraphs:
10.

That attached hereto as Exhibit 5 is an affidavit of Plaintiff.

11.

That attached hereto as Exhibit 6 is an Order of Administrative
Law Judge dated August 17, 2009 awarding Plaintiff Social
Security.

12.

That attached hereto as Exhibit 7 is the entire contract between
Defendant’s predecessor in interest, PROFESSIONAL
TRANSIT MANAGEMENT OF ASHEVILLE, INC. and
LOCAL UNION 128 of the AMALGAMATED TRANSIT

UNION.
(Pl.’s Am. Compl. ¶¶ 10-12.) In contrast to the instructions of the Court’s Order,
Plaintiff did not include any additional factual allegations in the body of the
Amended Complaint; Plaintiff failed to incorporate the factual allegations
contained in his affidavit into the Amended Complaint. Accordingly, the Court
STRIKES the Amended Complaint [# 25] for failure to comply with a lawful
Order of the Court.

Signed: November 28, 2011