Farm Works, LLC v. Charter Communications, Inc.

Filing 6

ORDER Pltf shall have up and including 1/19/2015 to file an Amended Complaint naming correct and appropriate Deft in this matter as a party in this case; should Pltf not file an Amended Complaint on or before 1/19/2015, counse l for Pltf and counsel for Deft shall appear before this Court for (Oral Argument set for 1/23/2015 02:00 PM in Courtroom 2, 100 Otis St, Asheville, NC 28801 before Magistrate Judge Dennis Howell), as to why this Court should not enter a Memorandum and Recommendation recommending dismissal of this action. Signed by Magistrate Judge Dennis Howell on 1/5/15. (ejb)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:14 CV 265

FARM WORKS, LLC,

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Plaintiff
v
NORTH CAROLINA CHARTER
COMMUNICATIONS, INC.,
Defendant.

ORDER

THIS MATTER is before the undersigned pursuant to a Joint Certification
and Report of F.R.C.P. 26(f) Conference and Discovery Plan (#3).

While

preparing the Pretrial Order and Case Management Plan for this case, the
undersigned examined the file. In the Complaint that was filed in the District
Court Division of Haywood County, North Carolina, the Plaintiff named as
Defendant “North Carolina Charter Communications, Inc.” (#1-1, p. 2)

In

paragraph 3, the Plaintiff alleges “Plaintiff is informed and believes and therefore
alleges that Defendant is a corporation organized and existing under and by virtue
of the laws of the State of North Carolina.” The Complaint was not answered by
North Carolina Charter Communications, Inc., but was answered by Charter
Communications, Inc. In the Answer, Charter Communications, Inc. alleges it has
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been improperly identified as North Carolina Charter Communications, Inc. (#1-1,
p. 10) In a Notice of Removal (#1) which removed the action to this Court,
Charter Communications, Inc. again alleges it has been improperly identified as
North Carolina Charter Communications, Inc. and further alleges Charter
Communications, Inc. is a corporation incorporated in the State of Delaware with
its principal place of business in the State of Missouri.

Plaintiff has never

responded to the allegations made by Charter Communications, Inc. that Plaintiff
has improperly identified the Defendant, nor has the Plaintiff filed an amended
Complaint that would reflect the name of the proper Defendant, if it is not North
Carolina Charter Communications, Inc. An examination of the records of the
Office of the Secretary State of the State of North Carolina does not show there is a
corporation organized and existing under and by virtue of the laws of the State of
North Carolina having the name of “North Carolina Charter Communications,
Inc.”.
Upon the Court’s own motion, the Court will order that the Plaintiff will
have up to and including January 19, 2015 to file an Amended Complaint
reflecting the name of the proper Defendant, whoever it may be. Should the
Plaintiff chose to not file an Amended Complaint on or before that date, counsel
for the Plaintiff and counsel for the Defendant will be required to appear before

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this Court on January 23, 2015 at 2:00 p.m. at which time the parties may present
arguments as to why this Court should not issue a Memorandum and
Recommendation directing that this matter be dismissed for failure of the Plaintiff
to name the proper party Defendant.
ORDER
IT IS, THEREFORE, ORDERED that:
1)

The Plaintiff shall have up and including January 19, 2015 to file an

Amended Complaint naming the correct and appropriate Defendant in this matter
as a party in this case;
2)

Should the Plaintiff not file an Amended Complaint on or before

January 19, 2015, counsel for the Plaintiff and counsel for the Defendant shall
appear before this Court in Courtroom #2 of the United States Courthouse in
Asheville, North Carolina on January 23, 2015 at 2:00 p.m. so they may be heard
as to why this Court should not enter a Memorandum and Recommendation
recommending the dismissal of this action.

Signed: January 5, 2015

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