United States District Court, E.D. North Carolina, Eastern Division
KELVIN J. DIXON, and STEPHANIE DIXON, Plaintiffs,
PRUDENTIAL PRIME PROPERTIES, JODY TINGEN, PISTOL TINGEN, JEFF MATHIS HOME INSPECTION SERVICE, and DANNY HARRINGTON, Defendants.
C. DEVER III Chief United States District Judge.
August 22, 2016, Kelvin J. Dixon and Stephanie Dixon
("plaintiffs"), proceeding pro se, filed suit
against Prudential Prime Properties, Jody Tingen, Pistol
Tingen, Jeff Mathis Home Inspection Service, and Danny
Harrington (collectively, "defendants") alleging
various constitutional and state-law claims [D.E. 1]. On
August 24, 2016, plaintiffs amended their complaint [D.E. 5].
On August 31, 2016, Jeff Mathis of defendant Jeff Mathis Home
Inspection Service apparently mailed plaintiffs a letter
denying plaintiffs' assertions concerning Jeff Mathis
Home Inspection Service, which the clerk docketed on
September 6, 2016, as an "answer" to
plaintiffs' amended complaint. See [D.E.
On September 2, 2016, plaintiffs moved to amend their
complaint [D.E. 7]. On September 8, 2016, defendants Jody
Tingen, Pistol Tingen, and Prudential Prime Properties moved
to dismiss the amended complaint under Federal, Rules of
Civil Procedure 12(b)(1) and 12(b)(6) [D.E. 12] and filed a
supporting memorandum [D.E. 13]. On September 12, 2016,
defendant Danny Harrington moved to dismiss the complaint
under Rule 12(b)(6) [D.E. 21], or in the alternative for a
more definite statement under Rule 12(e) [D.E. 23], and filed
supporting memoranda [D.E. 22, 24]. On September 16, 2016,
plaintiffs responded in opposition to defendants Jody Tingen,
Pistol Tingen, and Prudential Prime Properties' motion to
dismiss [D.E. 26]. On October 12, 2016, Jeff Mathis Home
Inspection Service moved to dismiss the amended complaint
under Rule 12(b)(6) [D.E. 32] and filed a supporting
memorandum [D.E. 33]. On March 8, 2017, plaintiffs again
moved to amend their complaint [D.E. 41].
explained below, the court grants in part plaintiffs'
first motion to amend, denies plaintiffs' second motion
to amend, grants in part and denies in part defendants Jody
Tingen, Pistol Tingen, and Prudential Prime Properties'
motion to dismiss, grants defendant Danny Harrington's
motion to dismiss, grants defendant Jeff Mathis Home
Inspection Service's motion to dismiss, and denies as
moot defendant Danny Harrington's motion for more
October 5, 2007, plaintiffs entered into a contract to
purchase a home. Am. Compl. [D.E. 5] 3; [D.E. 1-3] 6-11.
Defendant Jody Tingen of Prudential Prime Properties was
plaintiffs' real-estate agent. Am. Compl. at 3. Before
the deal closed, plaintiffs paid defendant Jeff Mathis Home
Inspection Service to inspect the property and prepare a
report. Id. On October 16, 2007, Mathis inspected
the home and prepared the report, which noted an
"obvious mold presence" and advised "testing
and remediation" to address the mold. [D.E. 1-6] 5.
Although Mathis sent the report to Jody Tingen, plaintiffs
allege they never saw it because Jody Tingen and Pistol
Tingen kept the report from plaintiffs. Am. Compl. at 3. On
November 7, 2007, plaintiffs closed the purchase with the
help of closing attorney Danny Harrington. See Id.
at 4-5, 8; [D.E. 1-4] 1-3.
months following closing, "plaintiffs began to notice
mushroom like items growing in the bathroom" and
"changes in their health for the worse such as stomach
and breathing problems." Am. Compl. at 7. Plaintiffs had
a specialist inspect the property. Id. On September
23, 2008, the specialist issued a report indicating
"three high levels of mold that was unfit for [h]uman
[h]abitation and [d]angerous for occupancy."
Id.; see [D.E. 1-4] 7. On October 1, 2008, the City
of Greenville's building inspector condemned the home.
Am. Compl. at 7; see [D.E. 1-4] 15. The inspection also
prompted plaintiffs' insurer to cancel plaintiffs'
homeowner's policy "due to the presence of toxic
mold on premises." Am. Compl. at 7; see [D.E. 1-4] 22.
Because of the home's mold, plaintiffs allege that they
"have been required to spend more than $17, 000 on the
property" and "incur medical bills as a result of
the unfit condition of the home." Am. Compl. at 5.
plaintiffs purchased the residence, two renters, both white,
occupied it. Id. at 3-4. One of the renters
allegedly "kept getting sick because of the mold."
Id. at 4. Nonetheless, when the residence went up
for sale, the renters offered to purchase it. Id. at
6. Defendants Jody Tingen, Pistol Tingen, and Prudential
Prime Properties rejected the offer, allegedly because the
renters "were white people of their own color" and
these defendants wanted to "move them out of
harm's way" so as not "to get caught up of
leasing or renting a flooded house to people of their own
color." Id. at 4, 6. Instead of selling the
residence to the white renters, plaintiffs allege that these
defendants and the others "illegally profiled"
plaintiffs, who are black, "to sell them a flooded home
infected with mold with animus, dislike, hostility, ... and
negative prejudice with hate." Id. at 9; see
Id. at 4.
eight years after allegedly discovering the home's
inhabitable conditions, plaintiffs sued defendants for
"racially profiling black people in order to sell
flooded homes, " "racial discrimination against the
plaintiffs, " "unfair and deceptive trade practice
acts, " "unlawful conspiracy as a team, "
"breach of fiduciary duty, " and "real estate
fraud." See [D.E. 1, 5]. They seek "civil
compensatory damages in excess of $50, 000, 000 from each
Defendant, " "punitive damages in excess of $50,
000, 000 from each Defendant, " and "clear and free
deed of the property, from their closing attorney, Danny
Harrington." Am. Compl. at 6.
have two pending motions to amend their complaint. See [D.E.
7, 41]. On September 2, 2016, they filed the first motion
("the September 2, 2016 motion")-after having
already amended their complaint once as a matter of course.
See [D.E. 5, 7]; Fed.R.Civ.P. 15(a). Although styled as a
"Motion to Amend, " plaintiffs did not attach a
proposed amended complaint or "a form of the amended
pleading indicating in what respect it differs from the
pleading that it amends" as required by the Local Civil
Rules. See Local Civ. R. 15.1 (a). Instead, plaintiffs
attempt to supplement their amended complaint by attaching a
new exhibit. [D.E. 7] 5-6. The court grants the September 2,
2016 motion to this extent and allows plaintiffs to add the
exhibit to their amended complaint. Cf Knox v. Bissell
Cos.. Inc.. No. 3:14-CV-00424-MOC, 2015 WL 4110727, at
*2 (W.D. N.C. July 7, 2015) (unpublished); Ham
v. Dep't of Pub. Safety & Corr. Servs.. No.
JKB-12-1706, 2013 WL 968285, at *1 (D. Md. Mar. 8, 2013)
(unpublished); Savage v. N.C. Dep't of Corr.,
No. 5:06-CV-171-FL, 2007 WL 2904182, at *13 (E.D. N.C. Sept.
29, 2007) (unpublished).
March 8, 2017, plaintiffs filed their second motion to amend
("the March 8, 2017 motion"). See [D.E. 41].
Plaintiffs again failed to attach a proposed amended
complaint or "a form of the amended pleading indicating
in what respect it differs from the pleading that it
amends" as the Local Civil Rules require. See Local Civ.
R. 15.1(a). It is also unclear what plaintiffs' seek to
accomplish through the March 8, 2017 motion. It contains no
new factual allegations, but instead asks to "amend the
civil action" under 42 U.S.C. § 1983, to
"amend civil action" under 29 U.S.C. §§
1109 and 1111, "to amend, civil action under
Magnuson-Mass Warranty Act. . . under the Consumer Protection
violation of unfair or deceptive trade practices, " and
"to amend Real Estate Fraud Commerce Code 27.1, past or
existing facts." [D.E. 41] 2.
Rule of Civil Procedure 15(a) provides that leave to amend
"shall be freely given when justice so requires."
Fed.R.Civ.P. 15(a)(2). Accordingly, "[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 Corp. v. Parvizian, 535 F.3d 295, 298
(4th Cir. 2008). A different standard, however, applies when
a party seeks leave to amend after the deadline set in the
court's scheduling order has expired. Id. In
the party seeking to amend its pleading must clear two
hurdles. First, the party must demonstrate "good
cause" under Rule 16(b)(4) of the Federal Rules of Civil
Procedure to modify the scheduling order. See
Nourison[, 535 F.3dat298], Second, the party must obtain
either leave of court or consent of the opposing party under
Rule 15(a)(2) to amend the pleading.
Belcher v. W.C. English Inc..
125 F.Supp.3d 544, 548
(M.D. N.C. 2015); see Nourison, 535 F.3d at 298-99;
Stonecrest Partners. LLC v. Bank of Hampton Roads.770 F.Supp.2d 778, 784 (E.D. N.C. 2011); United States v.