Aylward v. City of Charlotte

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ILONKA AYLWARD, Plaintiff, v. CITY OF CHARLOTTE, et al., Defendants.

No. 3:21-cv-232-MOC-DSC

United States District Court, W.D. North Carolina, Charlotte Division

May 8, 2023

ORDER

MAX O COGBURN, JR., UNITED STATES DISTRICT JUDGE.

THIS MATTER is before the Court on Defendant City of Charlotte's (hereinafter referred to as “Defendant City”) Motion to Dismiss and/or Strike the entirety of Plaintiff's Third Amended Complaint pursuant to Rules 12(b)(6) and 12(f) of the Federal Rules of Civil Procedure. (Doc. No. 109). Plaintiff has filed a response to Defendant City's motion. (Doc. No. 121). Defendant City has filed a reply to that response. (Doc. No. 124). For the following reasons, Defendants City's motion is GRANTED in part and DENIED in part.

I. BACKGROUND

This case arises out of the Hinsdale-Tinkerbell Storm Drainage Improvement Construction Project (the “Project”), a City of Charlotte development project to address stormwater, flooding, and stream erosion concerns. (Doc. No. 95 at ¶143). Plaintiff owns property located within the boundaries of the Project and claims the Project violates the Clean Water Act (“CWA”) and has disturbed Plaintiff's property. (Id. at ¶14). Consequently, Plaintiff brought an action against the City of Charlotte, the engineering firm of record for the Project, the engineering firm's engineer serving as project manager for the Project, and Charlotte Mecklenburg Stormwater Services - a joint collaboration between the County of Mecklenburg and the City of Charlotte that is not a governmental agency and is not capable of suing or being sued.

Plaintiff filed this action on May 19, 2021 (“First Complaint”). (Doc. No. 1). Shortly thereafter, Plaintiff filed an Amended Complaint (“Second Complaint”). (Doc. No. 12). The Second Complaint was 204 pages long-800 pages if including exhibits-and named as Defendants the City of Charlotte, Armstrong Glen, P.C., Joseph H. Letourneau, and Charlotte Mecklenburg Stormwater Services. This Court dismissed Charlotte Mecklenburg Stormwater Services as a defendant, reminded Plaintiff that Rule of Civil Procedure 8(a)(2) requires “a short and plain statement” of Plaintiff's claims, and ordered Plaintiff to file a more definite statement of what actions or inactions by Defendants Armstrong Glen, P.C., and Joseph H. Letourneau injured Plaintiff, and how such actions subject these defendants to the CWA. (Doc. No. 69). In response, Plaintiff filed another amended complaint (“Third Complaint”). This Third Complaint is 115 pages-251 pages if including exhibits-and incorporates the entire second complaint by Reference. (Doc. No. 95). Plaintiff's incorporation of the Second Complaint into the Third Complaint means that Plaintiff's allegations consisted of 319 pages-1051 pages if including exhibits.

Plaintiff's Third Complaint contains forty-one separate causes of action. Thirty-six are CWA causes of action, two are Negligence/Professional Malpractice claims against Defendants Armstrong/Letourneau, one is a § 1983 - First Amendment Claim against the City of Charlotte, one is a § 1983 - Equal Protection Clause of the 14^th Amendment Claim against the City of Charlotte, and one is a § 1983 - Substantive Due Process Clause of the 14^th Amendment Claim against the City of Charlotte.

Defendant City seeks dismissal of claims against it, which are specified in Counts 27-41. (Doc. No. 95 at ¶¶584-649). Counts 27-37 alleged violations of the CWA. Count 38 alleges conspiracy to violate the CWA. Count 39 is a claim for violation of Plaintiff's rights guaranteed under the 1^st Amendment of the U.S. Constitution. Count 40 is a § 1983 claim for violation of the Equal Protection Clause of the 14^th Amendment of the U.S. Constitution. Lastly, Count 41 is a § 1983 claim for violation of the Substantive Due Process Clause of the 14^th Amendment of the U.S. Constitution.

In its Motion, Defendant City requests this Court to either: (i) dismiss this litigation with leave to replead within thirty (30) days of the Court's dismissal; (ii) in the alternative, strike Plaintiff's Third Amended Complaint; (iii) in the alternative, order Plaintiff to refile a complete consolidated complaint against all Defendants, suspend the briefing schedule for any outstanding motions until a complete consolidated complaint is filed, and enjoin Plaintiff from filing any new motions until a complete consolidated complaint is filed, or (iv) in the alternative, order a status conference with all parties to discuss options (i), (ii), and/or (iii) set forth above.

II. STANDARD OF REVIEW

A complaint may be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the complaint fails to “state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept as true all of the factual allegations in the Complaint and draw all reasonable inferences in the light most favorable to the plaintiff. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). However, to survive a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level,” with the complaint having “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.

“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). A complaint may survive a motion to dismiss only if it “states a plausible claim for relief” that “permit[s] the court to infer more than the mere possibility of misconduct” based upon “its judicial experience and common sense.” Id. at 679 (citations omitted).

Under Rule 12(f), a court may strike “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” from a pleading. FED. R. CIV. P. 12(f). A district court has substantial discretion in its decision whether to grant a 12(f) motion. Motions to strike are generally disfavored. Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001).

III. DISCUSSION

In support of its motion, Defendant City alleges that Plaintiff's Third Complaint violates three separate Federal Rules of Civil Procedure: 8, 10, and 15. Plaintiff denies these allegations. However, the Third Complaint quantitively and qualitatively broadens Plaintiff's assertions, violating Rules 15 and 8.

a. Plaintiff's Third Complaint Makes New Allegations Against Defendant City without Defendant City's Written Consent or the Court's Leave.

Federal Rule of Civil Procedure 15 permits a plaintiff to amend its pleading within 21 days after serving it. Fed.R.Civ.P. 15(a)(1). After the 21-day period, a plaintiff may amend its pleading only after receiving the opposing party's written consent or the court's leave. Fed.R.Civ.P. 15(a)(2). Accordingly, a plaintiff's amended complaint is without legal effect if it required opposing party's written consent or the court's leave pursuant to Fed.R.Civ.P. 15(a)(2), and did not receive the opposing party's written consent or the court's leave. 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1484 (3d ed.).

It is undisputed that the Third Complaint does not meet the prerequisites to amend under Federal Rule of Civil Procedure 15(a)(1). Plaintiff filed the Second Complaint on July 6, 2021, Defendant City filed its Answer on August 11, 2021, and more than 21 days passed before Plaintiff filed the Third Complaint on July 8, 2022.

Defendant City asserts that Plaintiff does not meet the prerequisites to amend under Federal Rule of Civil Procedure 15(a)(2) either, because Plaintiff has amended its pleading without opposing party's written consent or the Court's leave. In response, Plaintiff argues that the Third Complaint complies with Rule 15(a)(2). According to Plaintiff, the Third Complaint does not amend Plaintiff's pleading, because it does not assert any new causes of action. Plaintiff describes the Third Complaint as a “structural change” and “a stylistic choice adopted implemented to give defendants an extra crisp notice of the claim.” (Doc. No. 121 at 6).

However, Rule 15's text is clear that it applies whenever a party amends its pleading. And a plaintiff amends their pleading when a plaintiff asserts new factual allegations, even if no new cause of action is asserted. See, e.g., Daulatzai v. Maryland, 606 F.Supp.3d 252, 263 (D. Md. 2022) (recognizing a pleaded was amended by new factual allegations, when no new causes of action were asserted); Young v. Giant Food Stores, LLC, 108 F.Supp.3d 301, 323 (D. Md. 2015). Here, Plaintiff concedes that she has made new factual allegations in the Third Complaint. (Doc. No. 121 at 7) (“There is, however, additional factual matter, added.”).

Plaintiff did not receive Defendant City's written consent to make these new factual allegations. Moreover, this Court's instruction to craft a More Definite Statement, did not provide Plaintiff with leave to amend her pleading with additional factual allegations against Defendant City. Indeed, the purpose of the Court's instruction was to hone the factual allegations, not expand them. Barnes v. Sea Hawai'i Rafting, LLC, 493 F.Supp.3d 972, 978 (D. Haw. 2020), affd sub nom. Barnes v. Kris Henry, Inc., No. 20-17141, 2022 WL 501582 (9th Cir. Feb. 18, 2022) (“Generally speaking, amended pleadings may not exceed the scope of leave granted by the district court.”). That is why the Court specifically requested that Plaintiff clarify how Defendant Armstrong Glen, PC and ...