Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dixon v. Prudential Prime Properties

United States District Court, E.D. North Carolina, Eastern Division

April 20, 2017

KELVIN J. DIXON, and STEPHANIE DIXON, Plaintiffs,
v.
PRUDENTIAL PRIME PROPERTIES, JODY TINGEN, PISTOL TINGEN, JEFF MATHIS HOME INSPECTION SERVICE, and DANNY HARRINGTON, Defendants.

          ORDER

          JAMES C. DEVER III Chief United States District Judge.

         On 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. 8].[1] 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].

         As 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 definite statement.

         I.

         On 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.

         In the 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.

         Before 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.

         Roughly 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.

         II.

         Plaintiffs 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).

         On 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.

         Federal 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 that case,

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. Godwin.247 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.