Curry et al v. Schletter Inc.

Filing 28

ORDER DIRECTING the parties to brief the issue of whether Plaintiffs' negligence claim survives Fed. R. Civ. P. 12(b)(6). Briefs shall be no longer than ten (10) pages. Defendant's brief is due on or by February 12, 2018. Plaintiffs' reply shall be due one (1) week from when Defendant files its brief. Signed by Magistrate Judge Dennis Howell on 01/31/18. (emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17 cv 1
BRYAN CURRY, et al., on behalf of
themselves and all others similarly
situated,

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Plaintiffs,
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v.
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SCHLETTER INC.,
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Defendant.
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___________________________________ )

ORDER

This matter is before the Court sua sponte. In Plaintiffs’ Amended Complaint
[# 23], Plaintiffs’ first cause of action is based on negligence. In Defendant’s Motion
to Dismiss [# 24], Defendant states that North Carolina’s economic loss rule bars
Plaintiffs from recovery. Plaintiffs’ response [# 26] and Defendant’s reply [# 27]
addressed only the issue of the economic loss rule’s applicability.
The parties did not, however, brief the issue of whether Plaintiffs’ negligence
claim itself withstands Fed. R. Civ. P. 12(b)(6). The Court requests such briefing in
making its memorandum and recommendation to the District Court. The Court in
particular asks the parties to brief the element of duty.
Therefore, the Court DIRECTS the parties to brief the issue of whether
Plaintiffs’ negligence claim survives Fed. R. Civ. P. 12(b)(6). Briefs shall be no

longer than ten (10) pages. Defendant’s brief is due on or by February 12, 2018.
Plaintiffs’ reply shall be due one (1) week from when Defendant files its brief.

Signed: January 31, 2018