STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF ALAMANCE 06 CVS 2620
BRIAN S. COPE, M.D.,
v. ORDER ON MOTIONS TO AMEND
MICHAEL P. DANIEL, M.D. and
DANIEL UROLOGICAL CENTER,
This matter is before the Court on Plaintiff’s Motion to Amend Complaint and
Defendants’ Motion to Amend Answer. Upon review of submissions by counsel and noting that
Defendants have no objection to the amendment, the Court hereby GRANTS Plaintiff’s motion.
Plaintiff shall have five (5) days from entry of this Order to serve Defendants, and file with the
Court, a corrected Amended Complaint.1 Upon review of submissions by counsel, the Court
hereby GRANTS IN PART Defendants’ motion for the following reasons.
The Court has discretion to allow a party to amend his or her pleadings after a responsive
pleading has been filed. N.C.R. Civ. P. 15(a). The Court of Appeals has stated that denial of
leave to amend is appropriate when there has been “(a) undue delay, (b) bad faith, (c) undue
prejudice, (d) futility of amendment, and (e) repeated failure to cure defects by previous
amendments.” Walker v. Sloan, 137 N.C. App. 387, 402, 529 S.E.2d 236, 247 (2000) (citation
FOURTEENTH DEFENSE AND COUNTERCLAIM
Defendants request the Court allow them to assert a defense and counterclaim that
“Defendant Daniel Urological is entitled to repurchase the Plaintiff’s stock upon termination of
his employment.” (Defs.’ Proposed Am. Answer ¶ 44.) Plaintiff has not objected to this
amendment. (Pl.’s Resp. Opp’n 3 n.2.) As Plaintiff notes, this defense and counterclaim is
consistent with Plaintiff’s claims. There is no undue prejudice to Plaintiff by allowing
The Court notes that the proposed Amended Complaint attached to Plaintiff’s motion had incorrect paragraph
numbers. Correcting the paragraph numbers is not a substantive change necessitating Defendants further approval.
Defendants to assert this defense and counterclaim at this stage. While there has been significant
delay, the Court finds that justice requires this amendment to be allowed. The Court hereby
GRANTS Defendants’ motion to amend the answer as to the fourteenth defense and
counterclaim. The Court expects Defendants’ will amend paragraph 26 of the original answer
(Statute of Limitations)
Defendants request the Court allow them to assert a defense that several of the causes of
action in the complaint are barred by applicable statutes of limitation. (Defs.’ Proposed Am.
Answer.) A defense based upon statutes of limitation is, by definition, time sensitive. A delay
of over fourteen months before asking for an amendment could be acceptable in certain
circumstances such as outlined above. The situation where statutes of limitations defense is
raised is not one of those circumstances.
In this case, the alleged timeframe during which the claims were alleged to have occurred
was established from the outset. (Compl. ¶ 12 (“Effective January 1, 1998, . . . Cope accepted an
Employment Agreement. . . .); Compl. ¶ 16 (“. . . beginning no later than 2000. . . .”); Compl. ¶
24 (“Since 1999. . . .”); Pl.’s Br. Supp. Mot. Am. Answer 2 (“Dr. Cope resigned . . . October 31,
2006.”).) No questions have been raised as to whether Defendants knew at the time the
complaint was filed, or during the significant time expended on the motions to compel and for
sanctions, what claims were being asserted against them and during what timeframe. There has
also been significant discovery. (Defs.’ Reply Br. 1–2 (“Plaintiff is forced to expend time
reviewing over nine years worth of documents. . . .”); Pl.’s Resp. Opp’n 2 (“. . . production of
more than 28,000 documents. . . .”).) Again, no question was raised as to what timeframe the
parties were operating within. A delay of over fourteen months before filing a statutes of
limitation defense is an undue delay and causes undue prejudice to Plaintiff. The Court hereby
DENIES Defendants’ motion to amend the answer as to the fifteenth defense.
Defendants request the Court allow them to assert a defense based on federal preemption
under ERISA to the extent a claim arises out of retirement benefits or the retirement plan.
(Defs.’ Proposed Am. Answer.) Federal law preempts state laws that “relate to any employee
benefit plan.” 29 U.S.C.S § 1144(a) (LEXIS through 2007). State law only “relates to”
employee benefit plan when the law would submit the employer to “conflicting employer
obligations and variable standards of recovery,” would “determine whether any benefits are
paid,” or would “directly affect the administration of benefits under the plan.” Pizlo v.
Bethlehem Steel Corp., 884 F.2d 116, 120 (4th Cir. 1989). In Pizlo, the plaintiffs alleged they
were wrongfully terminated. Id. Damages would be affected by the unpaid pension in Pizlo, but
“the pension trust itself would not be liable and the administrators of the pension plan would not
be burdened in any way.” Id. at 120–21. Summarizing many courts’ view on this matter—
simply referring to a pension plan for the calculation of damages is not sufficient to implicate
federal preemption. (See Pl.’s Resp. Opp’n 10, 10 n.3.) “Generally speaking, ERISA preempts
state common law claims of fraudulent or negligent misrepresentation when the false
representations concern the existence or extent of benefits under an employee benefit plan.”
Griggs v. E.I. DuPont De Nemours & Co., 237 F.3d 371, 378 (4th Cir. 2001). This action does
include a fraud claim against Defendant Daniels that alleges misrepresentations concerning
salaries and the finances of Defendant Daniel Urological Center, Inc. (Compl. ¶ 55.) That claim
does not concern the existence or extent of benefits under an employee benefit plan. See Griggs,
237 F.3d at 378. The additional claims would only tangentially relate to the employee benefits
plan as one aspect of alleged damages. Regardless of the undue delay that has occurred in filing
this amendment as shown above, an amendment adding an ERISA defense would be a futile
amendment and justice does not require the Court allow such an amendment. The Court hereby
DENIES Defendants’ motion to amend the answer as to the sixteenth defense.
IT IS SO ORDERED this the 10th day of June, 2008.
/s/ Ben F. Tennille
The Honorable Ben F. Tennille
Chief Special Superior Court Judge
for Complex Business Cases