Bradley Disney v. North American Roofing Services, Inc.

Filing 26

ORDER striking as improvidently filed, the 23 Amended Complaint and denying without prejudice plaintiff's request to file a Second Amended Complaint. Signed by District Judge Max O. Cogburn, Jr on 05/12/2015. (klb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:15-cv-00038-MOC-DLH
BRADLEY DISNEY,
Plaintiff,
Vs.
NORTH AMERICAN ROOFING SERVICES,
INC.; JOHN/JANE DOES,

Defendants.

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ORDER

THIS MATTER is before the court on plaintiff’s Response to the Court’s Show Cause
Order (#25). In that Response, counsel for plaintiff acknowledges his error, reflects consultation
with opposing counsel, and seeks leave to amend the complaint to correct the errors noted by
defendant in its Motion to Dismiss. Such Response reflects that counsel for defendant opposes the
filing of an amended complaint.
Review of the Motion to Dismiss and the improvidently filed Second Amended Complaint
reveals that the errors brought to light by the Motion to Dismiss will not automatically be cured
through re-pleading. While Rule 15 calls for liberal amendment, allowing amendment at this point
would require defendant to file another Motion to Dismiss. The better course at this point is to
consider as part of the Response why the First Amended Complaint is sufficient and, if not,
whether such problems are curable. The court will strike the Second Amended Complaint as
improvidently filed and deny plaintiff’s request to file a second amended Complaint without
prejudice. Finally, the court finds that plaintiff’s error in not responding to the Motion to Dismiss

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within the time allowed is one of legal neglect as it was based on a misreading of Rule 15 and that
it is excusable as such improvidently-filed pleading indicates to the court that plaintiff’s counsel
has been diligent in the prosecution of this case as it was filed within the time allowed for a
response. The deadline for a response will be reopened and enlarged until May 22, 2015.
ORDER
IT IS, THEREFORE, ORDERED that plaintiff having shown cause, the Second
Amended Complaint (#23) is STRICKEN as improvidently filed, plaintiff’s request to file a
Second Amended Complaint is DENIED without prejudice, and the time for plaintiff to file a
Response to defendant’s Motion to Dismiss (#20) is reopened and enlarged up to and inclusive of
May 22, 2015.

Signed: May 12, 2015

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