Phebus et al v. Mountain Life Cabins, LLC et al

Filing 37

ORDER denying WITHOUT PREJUDICE 35 Stipulation and Agreed Order to Extend Deadlines and Request for Scheduling Conference; denying 36 Agreed Order to Amend Complaint, which have been construed as motions. Signed by US Magistrate Judge W. Carleton Metcalf on 1/6/2025. (hms)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:24-cv-00035-MR-WCM
MEHRL PHEBUS and
DEBRA PHEBUS,

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Plaintiffs,
v.
MOUNTAIN LIFE CABINS, LLC;
OUT-A-BOUNDS FARM, LLC;
RICHARD W. NORTON, JR.;
GLEN FRANK; and
DYLAN FRANK,
Defendants.
_______________________________

ORDER

This matter is before the Court on a “Stipulation and Agreed Order to
Extend Deadlines and Request for Scheduling Conference” (the “Stipulation,”
Doc. 35) and an “Agreed Order to Amend Complaint” (the “Agreed Order,” Doc.
36).1
I.

Potential Amendment
The Agreed Order states that Plaintiffs wish “to amend their Complaint

to replace the named party Richard Norton Construction with Timbercraft
Custom Homes.” Doc. 36 at 1.

1 Though the filings have not been submitted as motions and are not supported by

briefs (see Local Civil Rule 7.1 (c)), because they seek action by the Court, the
undersigned construes them as being motions.
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There are numerous deficiencies with this request.
First, the parties do not cite any of the Rules of Civil Procedure or any
other authorities in support of this request or otherwise explain how it should
be analyzed.
Second, “Richard Norton Construction” is not a party to this case.
Rather, the Complaint names Richard W. Norton Jr. as a defendant and
alleges that “Richard W. Norton, Jr., d/b/a Norton Construction was at all
material times a citizen of the State of North Carolina . . .” Doc. 1 at ¶ 4; see
also Doc. 10.
Third, no proposed amended complaint has been submitted and the
filings are inconsistent as to the precise nature of the proposed amendment.
For example, the Agreed Order states that “Plaintiffs seek to amend their
Complaint to substitute Timbercraft Custom Homes in place of Richard Norton
Construction as a named defendant in this action or as an additional party”
but later states that Plaintiffs are being given leave “to file their Amended
Complaint, substituting Timbercraft Custom Homes in place of Richard
Norton Construction….” Doc. 36 at 2 (emphasis added).
Fourth, the parties do not describe what effect, if any, the proposed
amendment would have on the Court’s subject matter jurisdiction which is
based on diversity. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,
367 (1978); Murphy and Chapman, P.A. v. Metro. Life Ins. Co., No. 3:05CV4722

H, 2006 WL 211811, *2-3 (W.D.N.C. 25 Jan. 2006) (“the Supreme Court has
expressly held that the addition of a nondiverse defendant through the filing
of an amended complaint defeats complete diversity”).
II.

Scheduling Issues
The Stipulation states that the parties “agree to extend all current case

deadlines by sixty (60) days to allow the parties to participate in mediation and
continue discovery in good faith” and requests that the Court reschedule the
trial date and hold a scheduling conference.
From the current filings, it appears that, at the beginning of a mediated
settlement conference on December 19, 2024, “the parties determined, via the
insurance carrier for Richard Norton,” that Timbercraft Custom Homes was a
proper defendant, “not Richard Norton Construction.” Doc. 36 at 1. The
undersigned further reads the filings to indicate that mediation was
rescheduled for February 4, 2025. Doc. 35 at 1.
This case was filed in February 2024 and a Pretrial Order and Case
Management Plan was issued on June 6, 2024. Docs. 1, 12. That Pretrial Order
set a March 7, 2025 deadline for the completion of court enforceable discovery,
a March 25, 2025 deadline for mediation, and an April 8, 2025 deadline for
dispositive motions. Trial is scheduled for September 8, 2025.
The parties’ filings provide no explanation for why they did not discover
until the beginning of a mediated settlement conference on December 19,
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2024—which was 10 months after the case was filed and 6 months after the
Pretrial Order was entered—that Timbercraft Custom Homes should be a
party.
Under these circumstances, the parties’ showings in the Stipulation and
Agreed Order are insufficient to justify the relief sought.
IT IS THEREFORE ORDERED that the “Stipulation and Agreed Order
to Extend Deadlines and Request for Scheduling Conference” (Doc. 35) and the
“Agreed Order to Amend Complaint” (Doc. 36), which have been construed as
motions, are DENIED WITHOUT PREJUDICE.
Signed: January 6, 2025

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