Teal v. Ellis et al

Filing 26

ORDER denying 10 Motion to Strike Portions of Plaintiffs Amended Complaint; granting 21 Motion to Strike 18 Second Amended Complaint; Further Ordered to Show Cause by 10/2/2013, why service was not completed within 120 days of filing her Complaint or, in the alternative, to provide an affidavit of service within fourteen days to the Court. Signed by Chief Judge Frank D. Whitney on 9/18/2013. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:13-CV-169
KOREE TEAL,

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Plaintiff,
vs.
CB RICHARD ELLIS, INC.,
Defendant.

ORDER

THIS MATTER is before the Court on Defendant CB Richard Ellis, Inc.’s (“CBRE”)
Motion to Strike Portions of Plaintiff’s Amended Complaint (Doc. No. 10) pursuant to Fed. R.
Civ. P. 12(f) and Defendant’s Motion to Strike Plaintiff’s Second Amended Complaint (Doc. No.
21) pursuant to Fed. R. Civ. P. 15(a)(2).

The Court has reviewed all of Plaintiff’s and

Defendant’s arguments. For the reasons stated below, Defendant’s Motion to Strike Plaintiff’s
Second Amended Complaint (Doc. No. 21) is GRANTED, and Defendant’s Motion to Strike
Portions of Plaintiff’s Amended Complaint (Doc. No. 10) is DENIED.
I. BACKGROUND
Plaintiff, who appears pro se, filed her original Complaint (Doc. No. 1) on March 15,
2013. In that Complaint, Plaintiff listed as defendants “CBRE,” “Bob Terenzi,” “Tina Clawson,”
“Jayan Drake,” “Seth Puckett,” and “Diane Perry.” Plaintiff alleged four causes of action:
retaliation by CBRE under Title VII; religious discrimination by CBRE under Title VII;
negligence by Terenzi; and intentional infliction of emotional distress (“IIED”) by all
defendants. On March 28, 2013, Plaintiff filed an Amended Complaint (Doc. No. 5) that only
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listed Title VII claims for retaliation and religious discrimination against CBRE. However,
Plaintiff attached a supporting document to the Amended Complaint that listed CBRE and the
individuals as defendants in the caption and alleged all four causes of action that were included
in the original Complaint (Doc. No. 5-1). The supporting document also lists CBRE and all
individuals under the “PARTIES” heading.

It appears from the docket that the Amended

Complaint was served upon CBRE only. (Doc. No. 8.)
On May 20, 2013, Defendant CBRE filed a Motion to Strike Portions of Plaintiff’s
Amended Complaint (Doc. No. 10) that “seeks to strike all claims other than those under Title
VII, and portions of the pleading that refer to . . . individuals as party defendants.” (Doc. No. 22,
2.) On June 18, 2013, Plaintiff filed her Response to Defendant’s Motion (Doc. No. 17) in
which she claimed that this Court’s clerk’s office informed her “that Plaintiff only needed to put
the company not everyone involved in the complaint.” (Doc. No. 17.) She also stated that she
“is filing charges against the Defendant CB Richard Ellis under violations of Title VII” and that
she “specified that the Negligence and [IIED] damages be considered under the torts of North
Carolina.” (Doc. No. 17.).
On the same day as her Response to Defendant’s Motion to Strike, Plaintiff also filed a
Second Amended Complaint (Doc. No. 18). Plaintiff did not seek leave of court before filing
this document. The Second Amended Complaint is the same document that Plaintiff attached as
a supporting document to her First Amended Complaint, except in the Second Amended
Complaint, she listed only CBRE as a defendant for all four causes of action. (Doc. No. 18).
Plaintiff’s Second Amended Complaint still lists CBRE and all individuals under the
“PARTIES” heading in the document. (Doc. No. 18, 3.)
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II. ANALYSIS
A. Motion to Strike Second Amended Complaint
Rule 15(a)(1) allows a party to “amend its pleading once as a matter of course.” Rule
15(a)(2) states that “[i]n all other cases, a party may amend its pleading only with opposing
party’s written consent or the court’s leave.” Plaintiff filed her first Amended Complaint on
March 28, 2013. Because Plaintiff filed her Second Amended Complaint on June 18, 2013,
without Defendant’s consent or the court’s leave, this Court grants Defendant’s Motion to Strike
Plaintiff’s Second Amended Complaint.
B. Motion to Strike Portions of First Amended Complaint
In its Memorandum in Support of Defendant’s Motion to Strike, CBRE requests “that
this Court dismiss, or alternatively, strike” portions of Plaintiff’s Amended Complaint that refer
to the individually named defendants and to claims other than the Title VII claims asserted
against CBRE. (Doc. No. 11.) CBRE argues that Plaintiff eliminated the individual defendants
and the claims of negligence and intentional infliction of emotional distress because “[t]he
individuals identified as defendants in the original Complaint were not so identified in the
Amended Complaint” and because the two claims “are not contained in Plaintiff’s Amended
Complaint.” (Doc. No. 11, 1-2.) The Court denies Defendant’s motion because Plaintiff makes
it clear in the supporting document attached to her Amended Complaint that she is alleging
claims against CBRE and the individuals and that she is alleging four causes of action.
Notably, Defendant cites no authority besides the actual Rule to support its arguments in
support of its motion to strike. Rule 12(f) states, in pertinent part, that the court “may strike from
a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” “[M]otions to
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strike are ‘generally viewed with disfavor because striking a portion of a pleading is a drastic
remedy.’” Moody-Williams v. Liposcience, 2013 WL 1246752, at *1 (E.D.N.C. March 26,
2013) (quoting Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001)
(internal quotation marks omitted). “Furthermore, when considering a motion to strike against a
pro se litigant, the court does not hold her to ‘the same stringent standards as attorneys.’” Id.
(quoting Sawver v. Potash Corp. of Saskatchewan, 417 F. Supp. 2d 730, 738 (E.D.N.C 2006)).
Although the Amended Complaint (Doc. No. 5) does not list the individuals’ names in
the caption and does not allege causes of action for negligence or IIED, the attached supporting
document (Doc. No. 5-1) does. The Court, therefore, construes the Amended Complaint (Doc.
No. 5) and the attached supporting document (Doc. No. 5-1) as one document. See Yongo v.
U.S. Army, 2012 WL 777181, at *2 (E.D.N.C March 8 2012) (“[I]n a pro se case when the
plaintiff names the wrong defendant in the caption or when the identity of the defendants is
unclear from the caption, courts may look to the body of the complaint to determine who the
intended and proper defendants are.”) (quoting Trackwell v. United States Gov’t, 472 F.3d 1242,
1243-44 (10th Cir. 2007)). The attached document lists the following defendants in the caption:
CB Richard Ellis; Tina Clawson; Jayan Drake; Diane Perry; Seth Puckett and Bob Terenzi.
Under the “PARTIES” heading, Plaintiff lists CBRE and each of the individuals, and under the
“CAUSES OF ACTION” heading, Plaintiff alleges four causes of action. A reading of the
Amended Complaint and attached document leads the Court to conclude that Plaintiff intended
to include CBRE and the individuals as defendants in this action alleging: retaliation and
religious discrimination against CBRE, negligence against Terenzi, and IIED against all
defendants.
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sua sponte

respond may result in dismissal of the Complaint against those Defendants.
IT IS SO ORDERED.
Signed: September 18, 2013

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