Doe v. Lees-McRae Coll.
| Decision Date | 29 June 2021 |
| Docket Number | CIVIL CASE NO. 1:20-cv-00105-MR |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | JOHN DOE, Plaintiff, v. LEES-McRAE COLLEGE, et al., Defendants. |
THIS MATTER is before the Court on the Plaintiff's Motion for Leave to File Second Amended Complaint [Doc. 40]; the Plaintiff's Motion to Strike, or Alternatively, for Leave to Respond to, Amended Answer [Doc. 53]; the Plaintiff's Motion for Leave to Proceed Anonymously [Doc. 38]; and the Plaintiff's Motion for Preliminary Injunction [Doc. 31].
On April 29, 2020, the Plaintiff John Doe filed a Complaint (the "Original Complaint") against the Defendants Lees-Mcrae College ("LMC"), Lee King, Jon Driggers, and Joshua Gaisser (collectively the "Defendants") alleging the Defendants violated his rights under Section 504 of the Rehabilitation Act of 1973 (the "Rehabilitation Act") and Title III of the Americans with Disabilities Act, 42 U.S.C. §§12101, et seq. (the "ADA") and asserting various state law claims. [Doc. 1]. On June 26, 2020, the Defendants filed a Motion to Dismiss. [Doc. 10]. On July 17, 2020, the Plaintiff filed his First Amended Complaint. [Doc. 13].
On August 21, 2020, the Defendants filed their "Motion to Dismiss Plaintiff's Amended Complaint, or in the Alternative, Motion to Strike." [Doc. 17]. The Motion to Dismiss the Amended Complaint was fully briefed, and the Magistrate Judge submitted a Memorandum and Recommendation on February 4, 2021. [Doc. 25]. On March 22, 2021, the Court adopted the Memorandum and Recommendation and dismissed the claims of negligence, intentional and negligent inflection of emotional distress, fraud in the inducement/breach of contract, and all of the claims against Defendants King, Driggers, and Gassier (the "Individual Defendants"). [Doc. 30]. On April 5, 2021, LMC filed an Answer to the Plaintiff's First Amended Complaint and a Counterclaim. [Doc. 35].
On April 2, 2021, the Plaintiff filed a Motion for a Preliminary Injunction requesting that the Court order LMC to release the Plaintiff's academic transcripts to Appalachian State University. [Doc. 31]. LMC filed a response on April 16, 2021. [Doc. 43]. The Plaintiff replied on April 23, 2021. [Doc. 44].
On April 12, 2021, the Plaintiff filed a Motion for Leave to Proceed Anonymously. [Doc. 38]. LMC did not respond.
Also on April 12, 2021, the Plaintiff filed the Motion for Leave to File Second Amended Complaint ("Motion to Amend"). [Doc. 40]. In the Plaintiff's Motion to Amend the Plaintiff states that the proposed Second Amended Complaint would correct misnumbered paragraphs, add factual allegations "either newly revealed to counsel, or based on events that occurred after the [First Amended Complaint] was filed," add a cause of action for civil conspiracy, and conform the claims to the alleged facts. [Doc. 40 at 1-2]. In the Plaintiff's Proposed Second Amended Complaint the Plaintiff reasserts all of the claims that were previously dismissed with prejudice.
On April 26, 2021, LMC filed a response opposing the Plaintiff's Motion to Amend. [Doc. 46]. The Plaintiff replied on May 3, 2021. [Doc. 51].
On May 10, 2021, LMC filed their "First Amended Answer to Plaintiff's First Amended Complaint and First Amended Counterclaim." [Doc. 52]. LMC asserted counter claims against the Plaintiff for breach of contract and unjust enrichment based on an alleged outstanding balance of $5,560.77 owed by the Plaintiff to LMC. [Id. at 25-27]. On May 17, 2021, the Plaintiff filed their "Motion to Strike, or Alternatively, for Leave to Respond to, AmendedAnswer." [Doc. 53]. On June 1, 2021, LMC replied. [Doc. 55]. The Plaintiff responded on June 8, 2021. [Doc. 56].
Under the Federal Rules of Civil Procedure, a plaintiff may amend the complaint once as a matter of course within 21 days after serving the complaint, or within "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). A plaintiff may subsequently amend with permission from the court which "shall be freely granted when justice so requires." Fed. R. Civ. P. 15(a)(2). The Fourth Circuit "ha[s] interpreted Rule 15(a) to provide that 'leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.'" Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). Leave to amend is futile when the amended complaint would not survive a motion to dismiss. Save Our Sound OBX, Inc. v. N.C. DOT, 914 F.3d 213, 228 (4th Cir. 2019).
"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A plaintiff seeking a preliminary injunction must demonstrate that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm absent injunctive relief, (3) the balance of equities tips in his favor, and (4) the injunction would be in the public interest. Id. at 20. In each case the Court "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). Ultimately, a plaintiff's entitlement to preliminary injunctive relief is a matter of discretion with the Court. See Metropolitan Reg'l Info. Sys., Inc. v. American Home Realty Network, Inc., 722 F.3d 591, 595 (4th Cir. 2013).
The Plaintiff seeks to amend his First Amended Complaint. According to the Plaintiff the amendment would (1) correct misnumbered paragraphs; (2) add "factual allegations either newly revealed to [Plaintiff's] counsel, or based on events that occurred after the [First Amended Complaint] was filed;" and (3) "conform[] the claims to the alleged facts, adding a cause ofaction for civil conspiracy." [Doc. 40 at 2]. LMC counters that the Plaintiff's Motion to Amend should be denied because it is futile, prejudicial to the Defendants (including those previously dismissed), and untimely. [Doc. 46 at 9-16].
This Court previously dismissed with prejudice all of the claims against the Individual Defendants and the state law claims of negligence, intentional or negligent infliction of emotional distress,1 and fraud in the inducement/ breach of contract. [Doc. 30]. In the Proposed Second Amended Complaint, the Plaintiff reasserts all of the dismissed claims. [Doc. 40-1].
The Plaintiff argues that including these claims in his Second Amended Complaint is necessary in order to preserve these claims for appeal. This argument is inconsistent with circuit precedent. There is no requirement "to replead dismissed claims in order to preserve the right to appeal the dismissal." Young v. City of Mount Rainier, 238 F.3d 567, 572 (4th Cir. 2001) . Claims previously dismissed with prejudice are not waived for the purposes of appeal even when not reasserted in an amended complaint. Id.
The Plaintiff's proposed amendments reasserting the claims for violation of the ADA and Rehabilitation Act against the Individual Defendants, and the claims of negligence; intentional or negligent infliction of emotional distress; and fraud in the inducement/ breach of contract would be futile for the same reasons those claims were dismissed previously.2 The Court denies the Plaintiff's Motion to Amend to the extent the Plaintiff attempts to replead claims previously dismissed with prejudice.
The Plaintiff also seeks to amend so that he can assert a claim for civil conspiracy against LMC and the Individual Defendants.
To state a claim for civil conspiracy under North Carolina law, a plaintiff must allege facts fulfilling the following essential elements: "(1) an agreement between two or more individuals; (2) to do an unlawful act or to do a lawful act in an unlawful way; (3) resulting in injury to plaintiff inflicted by one ormore of the conspirators; and (4) pursuant to a common scheme." Piraino Bros., LLC v. Atl. Fin. Group, Inc., 211 N.C. App. 343, 350, 712 S.E.2d 328, 333 (2011), disc. rev. denied, 365 N.C. 357, 718 S.E.2d 391 (2011) (quoting Privette v. Univ. of N.C., 96 N.C. App. 124, 139, 385 S.E.2d 185, 193 (1989)). However, "there is no independent cause of action for civil conspiracy." Sellers v. Morton, 191 N.C. App. 75, 83, 661 S.E.2d 915, 922 (2008) (internal citations and quotations omitted). Rather, plaintiffs must be able to state "an underlying claim for unlawful conduct" in order to state a claim for conspiracy. Id.
Regarding the first element requiring that two or more individuals agree to commit the wrongful acts stated in the complaint, the intracorporate immunity doctrine provides that "[a] corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation." Buschi v. Kirven, 775 F.2d 1240, 1251 (4th Cir. 1985) (quoting Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952)); Iglesias v. Wolford, 539 F. Supp. 2d 831, 835-36 (E.D.N.C. 2008) (). Asserting a conspiracy...
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