Watterson et al v. Burgess et al

Filing 24

ORDER granting 19 Motion for Reconsideration. Plaintiffs SHALL FILE by Friday, May 2, 2014, a new, complete Amended Complaint that includes all claims and allegations against Defendants Woody Burgess, Jason Green, Frankie Dellinger, Jennifer Hoyle, David Hodgkins, Bob Austell, Mike Allred and the City of Cherryville; Further Ordered that Jeffrey Watterson is to file a notice with this Court no later than April 23, 2014, indicating that he joins the instant motion re 19 . Signed by Chief Judge Frank D. Whitney on 4/17/2014. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:13-cv-00159-FDW-DCK
JEFFREY RANDOLPH WATTERSON and )
RANDOLPH ALEXANDER WATTERSON,
)
)
Plaintiff,
)
)
vs.
)
)
WOODY BURGESS, JASON GREEN, )
FRANKIE DELLINGER, JENNIFER HOYLE, )
DAVID HODKINS, BOB AUSTELL, MIKE )
ALLRED, and the CITY OF CHERRYVILLE, )
)
Defendants.
)

ORDER

THIS MATTER is before the Court on Plaintiff Randolph Alexander Watterson’s Motion
for Reconsideration (Doc. No. 19), filed March 25, 2014, after this Court dismissed several
Defendants from Plaintiffs’ original and amended complaint.

See Doc. No. 18.

Plaintiff

Randolph Watterson argues that he “forgot” to include an affidavit (“Randolph Affidavit”) when
filing the “short form” complaint with the Court. (Doc. No. 19, p. 1.) The Randolph Affidavit
was later attached to a “Motion to Compel Production of Documents,” Doc. No. 10-1, but it was
not until Plaintiff Randolph Watterson filed the instant motion that it became clear to the Court
that he intended this document to specifically supplement the allegations in the complaint. In
light of Plaintiff Randolph Watterson’s pro se status, the Court has liberally construed the instant
motion as a motion for reconsideration and as a motion to amend the complaint.
As an initial matter, the Court notes that in addition to filing as a pro se Plaintiff,
Randolph Watterson’s motion purports to also be “on behalf of lead Plaintiff Jeffrey R.
Watterson through Randolph A. Watterson.” (Doc. No. 19, p. 1.) Randolph A. Watterson has
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not indicated that he is licensed to practice law, and therefore cannot submit filings to this Court
on behalf of another individual. Just this once and for purposes of this ruling only, the Court will
presume Jeffrey Watterson joins in the instant motion. Jeffrey Watterson is hereby ordered to
file a notice with this Court no later than April 23, 2014, indicating that he joins the instant
motion, or the Court will consider the ruling herein only applicable to Plaintiff Randolph
Watterson. The Court will not be so lenient in the future, and cautions both Plaintiffs that they
must both sign pleadings with this Court. Affidavits must be signed by the person swearing to
the contents therein.
Turning to the merits of the motion for reconsideration/motion to amend, in sum, the
Randolph Affidavit contains detailed, specific allegations concerning the Plaintiffs’ claims
against all Defendants.

The Court’s previous ruling did not consider the contents of the

Randolph Affidavit as part of its rulings under 28 U.S.C. §§ 1915(e)(2) or 1915A. Likewise, the
Court did not consider the Randolph Affidavit in deciding Plaintiffs’ prior motions to amend
because it was unclear that Plaintiffs intended the affidavit to supplement the complaint.
Federal Rule of Civil Procedure 15 applies to the amendment of pleadings and allows a
party to amend once as a matter of course within 21 days after serving, or “if the pleading is one
to which a responsive pleading is required, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P.
15(a)(1). Rule 15 further provides:
(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.
Fed.R.Civ.P. 15(a)(2).
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Under Rule 15, a “motion to amend should be denied only where it would be prejudicial,
there has been bad faith, or the amendment would be futile.” Nourison Rug Corporation v.
Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77
(4th Cir. 2001); see also Foman v. Davis, 371 U.S. 178, 182 (1962). However, “the grant or
denial of an opportunity to amend is within the discretion of the District Court.” Pittston Co. v.
U.S., 199 F.3d 694, 705 (4th Cir. 1999) (quoting Foman, 371 U.S. at 182).
Plaintiffs have already amended their complaint twice. See Docs. Nos. 15, 17, 18. On
April 15, Defendant Jason Green answered the original complaint (Doc. No. 1). It appears as
though the other named Defendant – Frankie Dellinger – was served on March 27, 2014, and no
answer has been filed. Thus, there has been no initial attorney’s conference and no discovery has
taken place.
The undersigned is not persuaded that there is sufficient evidence of prejudice, bad faith,
or futility to outweigh the policy favoring granting leave to amend. After careful consideration
of the record and the motions, the undersigned finds that Plaintiffs’ motion for reconsideration
and motion to amend should be granted; however, barring extraordinary circumstances further
amendments to the complaint are unlikely to be allowed.
In order to make clear the allegations that have been set forth over multiple documents,
the Court directs Plaintiffs to file, no later than Friday, May 2, a new, complete Amended
Complaint that includes all claims and allegations against Defendants Woody Burgess, Jason
Green, Frankie Dellinger, Jennifer Hoyle, David Hodgkins, Bob Austell, Mike Allred and the
City of Cherryville. Both Plaintiffs must sign the new Amended Complaint, and Plaintiffs
should either include the allegations in the Randolph Affidavit within the Amended Complaint or
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attach it to the Amended Complaint. Failure to comply with these directives could result in
summary dismissal of the claims.
This Order is without prejudice to any Defendant filing a motion to dismiss the
Amended Complaint, if appropriate.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Reconsideration (Doc. No.
19) is GRANTED. Plaintiffs SHALL FILE by Friday, May 2, 2014, a new, complete
Amended Complaint that includes all claims and allegations against Defendants Woody
Burgess, Jason Green, Frankie Dellinger, Jennifer Hoyle, David Hodgkins, Bob Austell, Mike
Allred and the City of Cherryville.
IT IS FURTHER ORDERED that the Clerk is respectfully DIRECTED to mail summons
forms to Plaintiffs for Plaintiffs to fill out for the reinstated Defendants. Plaintiffs are required to
provide the necessary information for the U.S. Marshal to effectuate service on these Defendants.
Once the Court receives the summonses and Amended Complaint from Plaintiff, the U.S.
Marshal shall effectuate service upon the named Defendants.
Because Defendant Dellinger has been served with the original complaint and summons
by the U.S. Marshal but has not yet appeared, Plaintiffs are hereby ORDERED to mail a copy of
the new Amended Complaint, once it is filed, to Defendant Dellinger. The Court notes that
because the Complaint is being amended, the time for this Defendant to answer is hereby
extended until the deadline that will be set based on the date of service of the Amended
Complaint.
IT IS SO ORDERED.
Signed: April 17, 2014

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