Wiles v. Black & Boone, P.A

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JOHN LEE WILES, Plaintiff, v. BLACK & BOONE, P.A. f/k/a BLACK AND GROSSMAN, P.A. and STEVEN A. GROSSMAN, jointly and individually, Defendants.

No. 1:21CV84

United States District Court, M.D. North Carolina

March 31, 2023

MEMORANDUM OPINION AND ORDER

Joe L Webster, United States Magistrate Judge

This matter is before the Court upon Plaintiff John Lee Wiles' Amended Motion for Summary Judgment, or in the alternative, Partial Summary Judgment (Docket Entry 64) and Defendants Black & Boone, P.A. and Steven A Grossman's Motion for Summary Judgment (Docket Entry 60.) Also before the Court is Plaintiffs Verified Motion to Extend Time to File Plaintiffs Amended Motion for Summary Judgment, Brief in Support of Amended Motion for Summary Judgment, and Response in Opposition to Defendants' Motion for Summary Judgment. (Docket Entry 70.) All matters have been fully briefed and are ripe for disposition. For the reasons stated herein, the Court will deny Plaintiffs Amended Motion for Summary Judgment, and grant in part and deny in part Defendants5 Motion for Summary Judgment. Further, Plaintiffs Motion to Extend Time will be granted.^[1]

I. PROCEDURAL BACKGROUND

Plaintiff initiated this action in the United States Bankruptcy Court for the Eastern District of North Carolina on September 22, 2020. (See Complaint ("Compl."), Docket Entry 1.) On January 28, 2021, the parties agreed to transfer the case to the Middle District of North Carolina. (Docket Entry 18 at 2-5.) On April 1, 2021, Defendants filed a motion for judgment on the pleadings. (Docket Entry 22.) Thereafter, on April 13, 2021, Plaintiff filed a motion to amend the Complaint (Docket Entry 24), which was granted in part and denied in part, and as such Defendants' motion for judgment on the pleadings was denied as moot (Docket Entry 47). Plaintiff is a former client of Defendant Steven A. Grossman ("Grossman"), who previously engaged in the practice of law as a licensed attorney at Defendant Black & Boone, P.A. ("Defendant Law Firm"), and Plaintiff brings claims of legal malpractice against Defendants, fraud as to Defendant Grossman, and respondeat superior as to Defendant Law Firm. (See Am. Compl.; Docket Entry 48.) For relief, Plaintiff seeks, inter alia, damages in excess of $75,000, and punitive damages in excess of $75,000 from Defendant Grossman. (Id. at 12.)^[2] Defendants then filed an answer. (Docket Entry 52.)

After the close of discovery, Defendants filed a motion for summary judgment and supporting brief regarding all of Plaintiff s claims on August 1, 2022. (Docket Entries 60, 61.)

Plaintiff filed a response in opposition to Defendants' motion. (Docket Entry 66.) Plaintiff also filed an amended motion for summary judgment, or in the alternative, partial summary judgment and supporting brief on August 12, 2022. (Docket Entries 64, 65.) Defendants filed a response in opposition. (Docket Entry 68.) Then on September 26, 2022, Plaintiff filed a Verified Motion to Extend Time to File Plaintiffs Amended Motion for Summary Judgment, Brief in Support of Amended Motion for Summary Judgment, and Response in Opposition to Defendants' Motion for Summary Judgment (Docket Entry 70), which Defendants oppose (Docket Entries 68, 69, 72).

II. FACTUAL BACKGROUND

On September 19, 2009, Plaintiff was involved in a physical altercation with a man named Tony Ray Simmons, Jr., wherein Plaintiff shot Simmons with a pistol. (Am. Compl. ¶ 24; Answer ¶¶ 131, 134.) Following this altercation, on September 17, 2012, Simmons hired Lucas Baker ("Simmons's Counsel") and filed a complaint against Plaintiff for Common Law Battery. (Am. Compl. ¶¶ 22, 26-27.) Plaintiff subsequently hired Defendants to represent him in defending against Simmons's complaint and asserted an affirmative defense of self-defense and defense of another in response. (Am. Compl. ¶¶ 28-29; Answer ¶¶ 28-29, 135.)

On November 26, 2014, Simmons's Counsel, under N.C. Gen. Stat. § 1A-1, Rule 41, filed a Notice of Voluntary Dismissal without prejudice, and subsequently refiled the complaint in 2015 against Plaintiff regarding the same September 2009 incident. (Am. Compl. ¶¶ 30-31; Docket Entry 51-1 at 2-3; Docket Entry 51-2 at 2-5; Answer ¶¶ 136-37.) The 2015 complaint was set for trial on January 17, 2017, after several continuances. (Am. Compl. ¶¶ 33-34.) On January 10, 2017, Simmons's Counsel emailed Defendant Grossman that he would be sending jury instructions for the "punitive phase charge . . . separately." (Am. Compl. ¶ 58; Docket Entry 51-5 at 2.) Defendant Grossman replied to Simmons's Counsel's email that he thought Simmons had agreed to dismiss the punitive damages claim to which Simmons's Counsel answered that this was never agreed to as he only said he would think about it. (Am. Compl. ¶¶ 59-60; Docket Entry 51-6 at 2; Docket Entry 51-7 at 2.) Simmons's Counsel then sent Defendant Grossman the jury instructions for the punitive damages claim. (Am. Compl. ¶ 61; Docket Entry 51-8 at 2-10.)

On January 17, 2017, between 10:13 a.m. and 10:15 a.m., Defendant Grossman and Simmons's Counsel had a short discussion with the presiding Superior Court Judge, where they told the Judge that they had a few matters to discuss at the pretrial conference at 11:00 a.m. (Am. Compl. ¶¶ 35-37; Docket Entry 51-3 at 5-6.) Subsequently that day, at 12:05 p.m., Simmons's Counsel and Defendant Grossman filed a Consent Order of Dismissal without prejudice, as such the 2015 case was dismissed, and Simmons was granted leave to re-file a complaint against Plaintiff within ninety days. (Am. Compl. ¶¶ 36-39; Docket Entry 51-4 at 1-2; Answer ¶144.)

On April 13, 2017, Simmons filed his third complaint against Plaintiff regarding the September 2009 altercation but this complaint contained a different set of facts about the events leading up to the shooting than the previous two complaints. (Am. Compl. ¶¶ 67, 69; Docket Entry 51-10 at 2-5.) Simmons's Counsel contended that the fact patterns drafted in the 2012 and 2015 complaints were erroneous and that Simmons had not reviewed them prior to filing. (Am. Compl. ¶ 74.) Defendant Grossman agreed not to cross examine Simmons regarding the factual differences between the previous complaints and the 2017 complaint as doing so would require Simmons's Counsel to withdraw in order to testify that Simmons never read the prior complaints. (Am. Compl. ¶ 75, 77; Docket Entry 51-11 at 2-5.) Trial for the 2017 complaint was set for December 17, 2018. (Answer ¶ 146.)

Leading up to the December 2018 trial, Defendant Grossman was running for judicial office in Cabarrus County and was elected as District Court Judge in November 2018. (Am. Compl. ¶¶ 94, 96.) During the December 2018 trial, Defendant Grossman did not bifurcate the trial between the liability and damages phases. (Id. ¶ 98.) On December 18, 2018, the jury awarded Simmons $1,000,000 in compensatory damages and $2,000,000 in punitive damages. (Id. \ 90.) After trial, the verdict and judgment were affirmed by the North Carolina Court of Appeals. (Answer ¶ 149.)

III. DISCUSSION

A. Plaintiffs Motion to Extend Time

Plaintiff has filed a Verified Motion to Extend Time to File Plaintiffs Amended Motion for Summary Judgment, Brief in Support of Amended Motion for Summary Judgment, and Response in Opposition to Defendants' Motion for Summary Judgment requesting the Court to extend the time to allow Plaintiffs filings to be considered timely on the basis of excusable neglect. (Docket Entry 70.) Defendants oppose the Motion. (Docket Entries 68, 69, 72.)

By way of background, on August 4, 2022, the Court entered a Text Order granting Plaintiff until August 11, 2022, to file a summary judgment motion. (Text Order dated 8/4/2022.) Plaintiff did not file his amended summary judgment motion and supporting brief until August 12, 2022, at 1:55 a.m. and 2:01 a.m. respectively. (Docket Entries 64, 65.) However, Plaintiffs counsel explains that the amended summary judgment motion and supporting brief were filed in the early morning hours of August 12, 2022, due to exhibits missing from the initial summary judgment motion as they were accidentally deleted, being down one attorney and one paralegal since June 13, 2022, and having a busy schedule that week. (Docket Entry 70 at 2-3.)

Additionally, on August 1, 2022, Defendants filed their summary judgment motion and supporting brief. (Docket Entries 60, 61.) Plaintiffs response in opposition to Defendants' summary judgment motion was due August 31, 2022. Plaintiffs counsel did not file the response until September 1, 2022, at 12:46 a.m. (Docket Entry 66.) Plaintiffs counsel explains that this forty-six minute delay was also due to the staffing shortage and having many obligations. (Docket Entry 70 at 4.) Defendants oppose Plaintiffs Motion contending, inter alia, that holding Plaintiff accountable to the Court's orders is particularly warranted in light of his repeated violations. (Docket Entries 68 at 4-6, 69 at 2 n.1.)

Local Rule 7.3(k) provides that the "failure to file a brief or response within the time specified in this rule shall constitute a waiver of the right thereafter to file such brief or response, except upon a showing of excusable neglect." See also Fed. R. Civ. P. 6(b)(1)(B) ("When an act may or must be done within a specified time, the court may, for good cause, extend the time ... on motion made after the time has expired if the party failed to act because of excusable neglect."). Here, Plaintiff did not request an extension of time until 45 days after his late amended motion for summary judgment was filed and 25 days after his late response in opposition to Defendants' summary judgment motion. (Docket Entries 64, 65, 66, 70.) Thus, under Federal Rule of Civil Procedure 6(b) and Local Rule 7.3(k), Plain...