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Smith v. Charter Communications

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

July 1, 2019

HARVEY SMITH, Plaintiffs,
v.
CHARTER COMMUNICATIONS, Defendant.

          ORDER

          MAX O. COGBURN JR. UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on Defendant Charter Communications, Inc.'s Motion for Partial Dismissal of Plaintiff's Third Amended Complaint. (Doc. No. 36).

         I. BACKGROUND

         On February 14, 2018, pro se Plaintiff Harvey Smith filed this action against his former employer Defendant Charter Communications, stemming from his termination from employment on or about March 18, 2017. Plaintiff's Complaint purported to assert six causes of action: (1) race discrimination under Title VII; (2) harassment under Title VII; (3) retaliation under Title VII; (4) failure to accommodate under the ADA; (5) discrimination under the ADA; and (6) retaliation under the ADA. (Doc. No. 1). Thereafter, Plaintiff participated in the Court's Pro Se Settlement Assistance Program (the “Program”). (Doc. No. 9). As a result, the case was stayed, and Plaintiff was appointed an attorney to represent him in relation to the Program. Mediation was held on June 5, 2018, and the parties ultimately reached an impasse. (Doc. No. 13).

         On June 26, 2018, Plaintiff filed a “Motion to Amended Complaint in Defamation and FMLA for Injunctive Relief and for Monetary Judgment” (Plaintiff's “Motion to Amend”). (Doc. No. 14). Plaintiff sought leave to amend his Complaint to include claims for “Common Law Defamation Per Se (libel and slander), General Defamation (libel and slander), Defamation by Implication (libel and slander), Intentional Infliction of Emotion Distress (“IIED”), Tortuous [sic] Interference with Prospective Advantage, and Assault” as well as FMLA interference and retaliation claims. (Doc. No. 14 at 1). On July 10, 2018, Defendant filed a response to Plaintiff's Motion to Amend requesting that the Court deny the Motion to Amend to the extent it sought to include claims of IIED, Tortious Interference with Prospective Advantage and Assault, on the grounds that Plaintiff's Motion to Amend did not state facts sufficient to support those claims. (Doc. No. 15).

         On July 18, 2018, Plaintiff filed a Reply in support of his Motion to Amend, (Doc. No. 16), and another document titled “Motion to Amended Complaint in Defamation and FMLA for Injunctive Relief and for Monetary Judgment” (“Second Motion to Amend”). (Doc. No. 17). That same day, U.S. Magistrate Judge David S. Cayer issued an Order granting in part and denying in part Plaintiff's First and Second Motions to Amend. (Doc. No. 18). Specifically, the Court granted Plaintiff's motions as to his claims of defamation and FMLA interference and retaliation and denied Plaintiff's motions as to all other claims. (Doc. No. 18). The Court instructed Plaintiff to file an Amended Complaint within fifteen days, through and including August 1, 2018.

         On July 30, 2018, Plaintiff filed a “Motion to Amended Complaint in Intentional Infliction and Emotional Distress, Tortious Interference for Injunctive Relief and for Monetary Judgment, ” which the Clerk of Court and Defendant construed to be Plaintiff's First Amended Complaint. (Doc. No. 19). Viewed in the light most favorable to Plaintiff, the First Amended Complaint asserted claims for failure to engage in the interactive process under 42 U.S.C. § 1981 (“Section 1981”), race discrimination and retaliation under the “North Carolina Civil Rights Act, ” libel, IIED, negligent infliction of emotional distress (“NIED”), and punitive damages. (Doc. No. 19). Notably, the First Amended Complaint did not reassert the six claims under Title VII and the ADA included in Plaintiff's initial Complaint, nor did it assert any allegations of FMLA interference or retaliation as had been requested in Plaintiff's Motion to Amend.

         On August 9, 2018, without filing another motion to amend or seeking leave from the Court, Plaintiff filed yet another “Motion to Amended Complaint in Defamation and FMLA for Injunctive Relief and for Monetary Judgment, ” which the Clerk and Defendant construed to be a Second Amended Complaint. (Doc. No. 20). In this filing, Plaintiff purported to assert claims for failure to engage in the interactive process and retaliation under Section 1981 and Section 1983, claims of race discrimination and retaliation under the “North Carolina Civil Rights Act, ” IIED, NIED, libel, and punitive damages. (Doc. No. 20). As with Plaintiff's First Amended Complaint, the Second Amended Complaint did not seek to reassert the six Title VII and ADA claims included in Plaintiff's initial Complaint, nor did it include allegations related to FMLA interference or retaliation.

         On August 13, 2018, Defendant filed a Motion for Partial Dismissal of Plaintiff's First Amended complaint to the extent Plaintiff was attempting to assert claims outside the scope of the Court's July 18 Order. (Doc. No. 21). Defendant also sought dismissal of the six Title VII and ADA claims asserted in Plaintiff's initial Complaint that were not reasserted in Plaintiff's First Amended Complaint or his Second Amended Complaint. Defendant further sought dismissal of Plaintiff's Second Amended Complaint in its entirety because it was untimely. Simultaneously, Defendant filed an Answer to Plaintiff's First Amended Complaint. (Doc. No. 23).

         Plaintiff filed a Response in Opposition to Defendant's Motion for Partial Dismissal and Motion to Dismiss on August 14, 2018, and Defendant filed a Reply in support of its Motions on August 21, 2018. (Doc. Nos. 24, 25). On August 27, 2018, United States Magistrate Judge David S. Cayer issued a Memorandum and Recommendation concluding that both Defendant's Motion for Partial Dismissal of the First Amended Complaint and Motion to Dismiss the Second Amended Complaint should be granted (the “Recommendation”). (Doc. No. 26).

         Specifically, Magistrate Cayer concluded that Plaintiff's claims based on Section 1981, the North Carolina Civil Rights Act, IIED, NIED, and punitive damages were beyond the scope of the Court's grant of leave and must be dismissed. The Magistrate also found that because Plaintiff's First Amended Complaint contained no allegations regarding FMLA interference, retaliation, or the Title VII and ADA claims asserted in the initial Complaint, those claims must also be dismissed. As to Plaintiff's Second Amended Complaint, Magistrate Cayer concluded that because it was filed over a week after the deadline set by the Court, it should be dismissed as untimely. Finally, Magistrate Cayer stayed all proceedings, including all discovery, pending the Court's ruling on the Recommendation.

         Despite the stay, and notwithstanding the fact that Magistrate Cayer had already issued a Recommendation on the Motions, on August 30, 2018, Plaintiff filed a Memorandum in Opposition to Defendant's Motion to Dismiss, which the Clerk of Court construed as a Pro Se Surreply in support of Plaintiff's Opposition to Defendant's Motion for Partial Dismissal of Plaintiff's First Amended Complaint and Motion to Dismiss Plaintiff's Second Amended Complaint. (Doc. No. 27).[1] On September 10, 2018, Plaintiff filed an “Objection to Magistrate's ‘Orders'/Report and Recommendation” (Plaintiff's “Objections”). (Doc. No. 29). Defendant filed a Response in Opposition to Plaintiff's Objections on September 24, 2018. (Doc. No. 32).

         On March 13, 2019, this Court issued an Order denying Defendant's Motion for Partial Dismissal of Plaintiff's First Amended Complaint and granting Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint. (Doc. No. 33). The Order granted Plaintiff leave to file a Third Amended Complaint to reassert claims that were contained in his original Complaint and to assert new claims of libel and FMLA retaliation and interference. (Id. at 11). The Order expressly prohibited Plaintiff from including any other claims. (Id.).

         On April 16, 2019, Plaintiff filed a Third Amended Complaint, asserting claims for (1) ADA disability discrimination; (2) ADA failure to accommodate; (3) FMLA interference; (4) FMLA retaliation; (4) Title VII and ADA retaliation in connection with Plaintiff's non-selection and/or failure to rehire him for several positions “from early February 2016 to the present”; (6) Title VII race discrimination; (7) wrongful discharge in violation of North Carolina public policy; (8) libel; (9) slander; (10) negligent misrepresentation; and (11) blacklisting. (Doc. No. 35). Attached as Exhibit A to ...


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