WILLIAM L. COLEMAN 501 Rama Road Charlotte, NC 28211 (828) 381-0232 colemanw@students.charlottelaw.

edu

WRITING SAMPLE

Memorandum drafted during legal internship with Weaver, Bennett, & Bland (Judge ultimately denied the defendants motion)

Memorandum of Law in Opposition to Defendants Motion to Amend Answer

Written in July 2012

STATE OF NORTH CAROLINA COUNTY OF UNION

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 08-CVS-00948

JOHN S. SMITH and JANE A. SMITH

| | | Plaintiffs, | | v. | | BONNIE W. PARKER and | CLYDE M. PARKER | | Defendants | _____________________________________ |

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTION TO AMEND ANSWER

PLAINTIFF JANE A. SMITH, by and through her counsel, hereby submits this Memorandum of Law in Opposition to Defendants Motion to Amend Answer. STANDARD OF REVIEW A motion to amend is addressed to the [sound] discretion of the trial court. Its decision will not be disturbed on appeal absent a showing of abuse of discretion. Henry v. Deen, 310 N.C. 75, 82 (1984). FACTS On April 27, 2009, at approximately 11:00 a.m., Plaintiffs were riding home on their 2008 BMW motorcycle when they approached a stoplight at an intersection. See Complaint, 3. At approximately 0.3 miles in front of them was Defendant Bonnie W. Parker, who was stopped in a vehicle at the green light in the Plaintiffs lane of travel. Complaint, 4; John Smith Dep. 56:7-56:24. By the time Driver-Plaintiff John S. Smith and his wife (Passenger-

Plaintiff Jane A. Smith) reached the rear of the Defendants vehicle about 30 seconds later, the Defendants vehicle remained at a complete standstill and off to the right. Complaint, 4-5; John Smith Dep. 58:18-58:24. Believing that the Defendants vehicle was disabled, Plaintiff John S. Smith sounded the horn and proceeded to slowly drive around the left side of the Defendants at approximately 10 miles per hour. Complaint, 5; John Smith Dep. 58:22-59:9. As the Plaintiffs were passing the Defendants stopped vehicle, Defendant Bonnie W. Parker made a quick and sudden left turn into the right side of the Plaintiffs motorcycle. Complaint, 6. As a result, both Plaintiffs were knocked off of their motorcycle and suffered serious injuries. Id. STATEMENT OF THE CASE On March 18, 2010, the Plaintiffs filed their Complaint in Superior Court in Union County against the Defendants, Bonnie W. Parker and Clyde M. Parker, to recover damages for the Defendants negligence. The Defendants motioned for an extension of time to answer, which the Court granted in an Order on April 14, 2010. On May 18, 2010, the Defendants, through counsel, filed an Answer. Their answer contained no affirmative defenses as to the claims of Plaintiff Jane A. Smith. Since the Defendants filed their Answer in 2010, both parties have conducted extensive discovery. Written discovery by way of Interrogatories and Requests for Production of Documents have been answered by the parties. Counsel for the Plaintiffs took the deposition of Defendant Bonnie W. Parker on October 27, 2010. Depositions for the Plaintiffs were conducted on March 10, 2011. Mediation between the parties was held on April 4, 2012, but was unsuccessful. At present, expert witnesses have been designated and are awaiting depositions, while

trial is scheduled for September 17, 2012. With that understanding in mind, the Defendants, through counsel, made a Motion to Amend their Answer on May 11, 2012, to add an entirely new affirmative defense against Plaintiff Jane A. Smith. ISSUE WHETHER THE DEFENDANTS MAY AMEND THEIR ANSWER TO ADD A NEW AFFIRMATIVE DEFENSE ALMOST TWO YEARS AFTER THE ORIGINAL FILING OF THEIR ANSWER AND TWO MONTHS PRIOR TO SCHEDULED TRIAL. ARGUMENT Pursuant to Rule 15(a) of the North Carolina Rules of Civil Procedure, when a party has no right to amend because of time limitations, an amendment may nevertheless be made by leave of court or by written consent of the adverse party. The rule further states that leave to amend shall be freely given when justice so requires. N.C.G.S. 1A-1, Rule 15(a) (2005). Despite the courts observance of such a liberal amendment standard, the [Rules] still provide some protection for parties who may be prejudiced by liberal amendment. Isenhour v. Universal Underwriters Ins., Co., 345 N.C. 151, 154 (1996). The Court, in its sound discretion, may deny a motion to amend on the grounds of undue delay, bad faith, undue prejudice, and the futility of the amendment. Walker v. Walker, 143 N.C. App. 414, 418 (2001). I. DEFENDANTS MOTION TO AMEND SHOULD BE DENIED BECAUSE OF UNDUE DELAY. The official comments to Rule 15 note that the general approach for considering motions under the rule is to allow amendments freely up to the time that the opponent has taken his initial position by responsive pleading, and thereafter to make the privilege to amend more and more difficult to obtain as the litigation process progresses ... (emphasis added). See Hudspeth

v. Bunzey, 35 N.C. App. 231, 241 (1978) (trial judge did not abuse his discretion in denying defendants motion to amend after defendant waited 16 months to file the motion to amend); Patrick v. Williams, 102 N.C. App. 355, 360 (1991) (trial court did not err in denying defendants motion to amend their answer where defendants filed the motion almost 24 months after filing the answer and after both parties had conducted extensive discovery; Walker, 143 N.C. App. 414 (no error in denying the defendants motion to amend his answer that was filed on the eve of trial); McMillan v. Town of Tryon, 200 N.C. App. 228 (2009) (no abuse of discretion in denying the plaintiffs motion to amend a complaint where 11 months had progressed since the original filing). In the case sub judice, the Defendants eleventh hour request to amend their Answer to interpose a new counterclaim works at the very heart of undue delay. The original Answer by the Defendants was filed on May 18, 2010. Two years after taking this initial position, the Defendants are now attempting to add an entirely new affirmative defense to their Answer. The prejudice of allowing the Defendants to alter their answer this late into litigation would be unavoidable. Because both parties have already conducted extensive discovery and mediation, this move, just two months before trial, would require more discovery and more production of evidence of occurrences more than three years old for a claim that was never considered until now. Furthermore, the additional research and preparation that would be needed would inevitably translate to more cost and burden to the parties and the Court. The spirit of the North Carolina Rules of Civil Procedure does not envision pleadings to be constantly moving or morphing targets to which parties must constantly revise their factual and legal positions. Nor do the Rules intend to reward parties for sloppy pleadings, or inatten-

tion by counsel to their case, to allow parties to change horses in mid-stream. The procedural facts of this case squarely illuminate and threaten those concerns. Although Rule 15 clearly allows the privilege of amending pleadings, that privilege is limited by reasonableness in time and fairness to the parties. See Stetser v. TAP Pharm. Prods. Inc., 165 N.C. App. 1, 31 (2004). Here, the Defendants and their counsel have been aware of Plaintiff Jane A. Smiths actions that allegedly form the basis for the Amended Answer for three years. Their last minute effort to raise new legal theories simply exceeds those limits contemplated by the Rules and attempts to abuse the privilege of amendment. Plaintiff Jane A. Smith, therefore, respectfully requests this Court to deny the Defendants Motion. II. DEFENDANTS MOTION TO AMEND SHOULD BE DENIED BECAUSE THE AMENDMENT WOULD BE FUTILE. A court may deny a motion to amend if the facts sought to be added are insufficient to support a claim for relief, Smith v. McRary, 306 N.C. 664, 671 (1982), or an insurmountable bar to recovery appears on the face of the pleading. Al-Hourani v. Ashley, 126 N.C. App. 519, 521 (1997). Such an insurmountable bar may consist of an absence of law to support a claim, an absence of facts sufficient to make a good claim, or the disclosure of some fact that necessarily defeats the claim. Id. A. DEFENDANTS FAILED TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED BECAUSE THERE ARE INSUFFICIENT FACTS TO IMPUTE NEGLIGENCE AS A MATTER OF LAW TO PLAINTIFF JANE A. SMITH PURSUANT TO THE OWNER-OCCUPANT DOCTRINE. It is undoubtedly the prevailing view in this state that negligence on the part of the driver of an automobile will not be imputed to another occupant or passenger unless such other occu-

pant is the owner or has some kind of control over the driver. Tyree v. Tudor, 183 N.C. 340, 346 (1922). See also, in accord, Duval v. R.R., 134 N.C. 331 (1904); Pusey v. Atlantic Coast Line, 181 N.C. 137 (1921); Bagwell v. R.R., 167 N.C. 611 (1914); McMillan v. R.R., 172 N.C. 853 (1916); Crampton v. Ivie, 126 N.C. 894 (1900); Dillon v. City of Winston-Salem, 221 N.C. 512 (1942); Nash v. Seaboard, 202 N.C. 30 (1932); Odom v. Atlantic Coast, 193 N.C. 442 (1927); Earwood v. Southern Ry., 192 N.C. 27 (1926); Campbell v. High Point, 201 N.C. 102 (1931); Keller v. Southern Ry 205 N.C. 269 (1933); U.S. Industries v. Tharpe 47 N.C. App. 754, rev. denied, 301 N.C. 90 (1980); Davis v. Jessup, 257 N.C. 215 (1962); Etheridge v. Norfolk Southern, 7 N.C. App. 140 (1970); Shoe v. Hood, 251 N.C. 719 (1960); Rhoads v. Bryant, 56 N.C. App. 635 (1982); Jernigan v. Jernigan, 207 N.C. 831 (1935); Albritton v. Hill, 190 N.C. 429 (1925). Where an owner-occupant of an automobile permits or requests another to operate the automobile, there is a rebuttable presumption that the driver is the agent of the owner-occupant. Shoe v. Hood, 251 N.C. 719, 724 (1960). Accordingly, any negligence on the part of the driver is imputable to the owner. Tharpe, 47 N.C. App. at 763 (citing Harper v. Harper, 225 N.C. 260 (1945)). However, the owner-occupant may rebut this presumption and avoid liability if: (1) The occupant had no legal right to control the manner in which the automobile was being operated; or, (2) The occupants relation to its operation was such that he would not have been responsible to a third party for negligence of the driver. Etheridge, 7 N.C. App. at 144 (emphasis added). In other words, negligence may be imputed only if there was a reasonable or fair opportunity to exercise control by the owner-occupant coupled with his or her failure to do so. Monk v. Cowan Transportation, Inc., 121 N.C. App. 588 (1995).

In Etheridge, the appellate court held that the doctrine of imputed negligence applied to the owner-occupant of a vehicle that was involved in a collision. 7 N.C. App. at 146. Even though the owner-occupant rode in complete silence as a passenger, the court opined that the owner-occupant theory applied because the owner was the sole owner and [permitted], if not [requested] another to operate his vehicle. Id. at 146. See also Shoe, 251 N.C. at 725 (upholding imputation of negligence to a wife who solely owned the vehicle negligently driven by her husband). The facts of the present case are distinguishable from Etheridge, Shoe, and other case law in which the owner-occupant doctrine has been applied. For instance, Plaintiff Jane A. Smith is not the sole owner, but rather a co-owner of the motorcycle with her husband Plaintiff John S. Smith. (Jane Smith Dep. 35:10-35:14). As such, Plaintiff Jane A. Smiths relation to the motorcycles operation was such that she could not be responsible for her husbands exercising his own right to control the motorcycle. Where one joint owner is driving a vehicle, it can hardly be said that the other joint owner has control of the vehicle. Furthermore, Plaintiff Jane A. Smith had no legal right to control the motorcycle because she did not possess, nor has she ever obtained, a valid license to drive a motorcycle. Had she exercised control of the motorcycle, Plaintiff Jane A. Smith would have violated the law. N.C.G.S. 20-17. Additionally, Plaintiff Jane A. Smith did not have a reasonable opportunity or ability to control the manner in which the motorcycle was driven at the time of the accident. In her deposition and interrogatory answer, Plaintiff Jane A. Smith stated that she had no physical experience driving motorcycles. (Jane Smith Dep. 19:23-20:1). Nor was she in the position to clearly

communicate or dictate the manner in which her husband drove the motorcycle. Due to her placement behind the driver, coupled by the fact that both were wearing helmets, any sound or communication to her husband would be muffled or muted. The facts of this case are more in line with those in Monk v. Cowan Transportation. There, a joint owner was riding in a vehicle driven by her fianc/joint owner at the time a third party struck the joint owners vehicle. Monk, 121 N.C. App. at 589. The court held that the owner-occupant doctrine did not apply because the passenger owner did not have adequate time and opportunity to exercise her right or duty to control [her fiance]s driving at the time of the collision. Id. at 592. Similarly, Plaintiff Jane A. Smith did not have a reasonable opportunity to control Plaintiff John S. Smiths driving at the time the Defendants automobile suddenly turned into the side of the motorcycle. Plaintiff Jane A. Smith, therefore, respectfully requests the Court to deny the Defendants Motion to Amend to interpose contributory negligence against Jane A. Smith pursuant to the owner-occupant doctrine. B. DEFENDANTS FAILED TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED BECAUSE THERE ARE INSUFFICIENT FACTS TO IMPUTE NEGLIGENCE AS A MATTER OF LAW TO PLAINTIFF JANE A. SMITH PURSUANT TO THE JOINT ENTERPRISE THEORY. To impute a drivers negligence to another occupant under the theory of joint enterprise, the relation between them must be shown to be something more than that of host or guest. Pusey v. Atlantic Coast Line R.R. Co., 181 N.C. 137, 142 (1921). Both the occupant and the driver must have such control and direction over the automobile as to be substantially in joint or common possession of it. James v. Atlantic & East Carolina R.R. Co., 233 N.C. 591, 598 (1951) (cit-

ing Albritton v. Hill, 190 N.C. 429, 431 (1925)) (emphasis added). A common enterprise in riding is not enough. Albritton, 190 N.C. at 431). Two fundamental requirements must concurrently exist to impute negligence under the theory of joint enterprise: (1) A community of interest in the object and purpose of the undertaking in which the automobile is driven; and, (2) An equal right to direct and govern the movements and conduct of each other in respect thereto. James, 233 N.C. at 598 (quoting 4 Blashfield Cyclopedia of Automobile Law and Practice 2372). The Court in Matheny imputed a husbands negligence to his wife-passenger under the theory of joint enterprise. 233 N.C. 681, 682 (1951). In that case, the couple jointly owned a certain vehicle that the husband was driving for the purpose of transporting household and other property. Id. Because the husband was driving at the time of the accident with the wifes consent for [a] common benefit and purpose, the Court charged the wife with responsibility for her husbands negligence. Id. The Court also emphasized that both had been alternating the driving of the vehicle. Id. Unlike the husband in wife in Matheny, the Plaintiffs in this case were not sharing the driving. At all times relevant, Plaintiff John S. Smith was the driver of the motorcycle, and the two were merely riding to their home from dinner. (Jane Smith Dep. 35:15-35:17). Furthermore, the Plaintiffs did not have a common benefit and purpose as interpreted by Matheny and other case law. The Plaintiffs were not transporting household property or advancing any purpose other than simply going home. Instead, the nature of their ride was more analogous to a mutually engaged joy ride or pleasure ride, which the Supreme Court has held does not create a joint enterprise. Pusey, 181 N.C. at 142. In fact, in her deposition, Plaintiff Jane A. Smith bol-

stered this point when she disclosed the fact that she told her husband to stay straight instead of turning right because it was a prettier ride to go straight. (Jane Smith Dep. 30:14-30:24). The Defendants might argue that Plaintiff Jane A. Smiths instructing her husband to stay straight amounts to equal control and joint enterprise. However, this argument is in direct contravention with North Carolina law. See Albritton, 190 N.C. at 432 (stating that it is not sufficient merely that the passenger or occupant of the machine indicate to the driver or chauffer the route he may wish to travel, or the places to which he wishes to go, even though in this respect there exists between them a common enterprise). Furthermore, Plaintiff Jane A. Smiths desire to ride in a certain direction does not constitute any significant level of control over the operation of the motorcycle that would render her and her husband substantially in joint or common possession. In fact, her lack of control is evidenced by the fact that Plaintiff Jane A. Smith has never driven the motorcycle or obtained a license to drive any motorcycle. (Jane Smith Dep. 19:23-20:1). Plaintiff Jane A. Smith, therefore, respectfully requests the Court to deny the Defendants Motion to Amend to interpose contributory negligence against Jane A. Smith pursuant to the joint enterprise theory.

CONCLUSION For the foregoing reasons, Plaintiff Jane A. Smith respectfully requests that the Court deny the Defendants Motion to Amend Answer and to grant any further relief that the Court may deem just and proper. This day of July, 2012.