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Stevens v. Wal-Mart Stores East, LP

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

January 4, 2018

RICK STEVENS, Plaintiff,
v.
WAL-MART STORES EAST, LP, Defendant.

          ORDER

          David C. Keesler United States Magistrate Judge

         THIS MATTER IS BEFORE THE COURT on “Plaintiff's Amended Motion For Leave To Amend The Complaint, To Add A Party And For Remand” (Document No. 11) and “Defendant Wal-Mart Stores East, LP's Motion To Dismiss” (Document No. 13). The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(b), and immediate review is appropriate. Having carefully considered the motions, the record, and applicable authority, the undersigned will grant the motion to amend, deny the pending motion to dismiss as moot, and direct that this matter be remanded.

         BACKGROUND

         Plaintiff Rick Stevens (“Plaintiff” or “Stevens”) initiated this action with the filing of his “Complaint” (Document No. 1-2) in the Superior Court of Catawba County, North Carolina on July 27, 2017. The original Complaint alleged a single claim for negligence against Wal-Mart Stores East, LP (“Defendant” or “Wal-Mart”) based on a slip and fall in Defendant's store in Hickory, North Carolina. (Document No. 1-2). Defendant filed a “Notice Of Removal” (Document No. 1) with this Court on October 6, 2017. Defendant's “…Answer” (Document No. 3) was filed on October 12, 2017.

         On October 27, 2017, the parties filed a “Joint Stipulation of Consent to Exercise Jurisdiction by a United States Magistrate Judge” (Document No. 4) and a “Certification And Report Of F.R.C.P. 26(f) Conference And Discovery Plan” (Document No. 5). The undersigned then issued a “Pretrial Order And Case Management Plan” (Document No. 6) on October 30, 2017.

         Plaintiff originally sought leave to amend his Complaint to add a party and requested remand on December 4, 2017. (Document No. 8). That motion was denied for failure to satisfy the requirements of the Local Rules. (Document No. 10). Plaintiff renewed his request with the pending “… Motion For Leave To Amend The Complaint, To Add A Party And For Remand” (Document No. 11) filed December 8, 2017. “Defendant Wal-Mart Stores East, LP's Motion To Dismiss” (Document No. 13) was filed on December 21, 2017. Defendant contends that Plaintiff's Complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). (Document No. 13).

         In the interest of judicial economy and efficient case management, the undersigned finds that the pending motions should be decided without delay.

         STANDARD OF REVIEW

         Federal Rule of Civil Procedure 15 applies to the amendment of pleadings and allows a party to amend once as a matter of course within 21 days after serving, or “if the pleading is one to which a responsive pleading is required, 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). Rule 15 further provides:

         (2) Other Amendments.

In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

         Fed.R.Civ.P. 15(a)(2).

         Under Rule 15, 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 Corporation v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77 (4th Cir. 2001)); see also, Foman v. Davis, 371 U.S. 178, 182 (1962). However, “the grant or denial of an opportunity to amend is within the ...


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