CHISHOLM v. MOUNTAIRE FARMS OF NORTH CAROLINA CORP.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROBERT CHISHOLM, )

)

Plaintiff, )

)

v. ) 1:21cv832

)

MOUNTAIRE FARMS OF NORTH )

CAROLINA CORP., )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on the “Motion for Leave to

File Amended Complaint” (Docket Entry 16) (the “Motion”) filed by

Robert Chisholm (the “Plaintiff”), which the undersigned deemed “a

motion to alter or to amend [the] Judgment, to include therein

language explicitly authorizing amendment of [Plaintiff’s

c]omplaint” (Text Order dated Oct. 18, 2022). For the reasons that

follow, the Court should grant the Motion.

BACKGROUND

Following termination of his employment with Mountaire Farms

of North Carolina Corporation (the “Defendant”), Plaintiff sued

Defendant for violations of the Americans with Disabilities Act

(the “ADA”), the Family and Medical Leave Act (the “FMLA”), and the

Employee Retirement Income Security Act (the “ERISA”). (See, e.g.,

Docket Entry 1 (the “Complaint”), ¶ 1.) Defendant moved to dismiss

Plaintiff’s Complaint pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure (at times, the “Rules”). (See Docket

Entry 9 (the “Dismissal Motion”) at 1.)1 More specifically,

Defendant moved to “dismiss Plaintiff’s Complaint in its entirety

and with prejudice” on the grounds that Plaintiff’s ADA “claim is

time-barred” and that “Plaintiff’s ADA discrimination claim and his

FMLA and ERISA retaliation claims lack any specific factual

support, merely recite the elements of their respective causes of

action, relying solely on legally conclusory allegations, and are

therefore legally insufficient to state claims for relief which are

plausible on their face.” (Id. at 1-2.)

The Court (per United States District Judge Loretta C. Biggs)

denied Defendant’s timeliness challenge, finding that Plaintiff,

“through artful pleading, has survived [Defendant’s] specific and

limited challenge to the timeliness of [his EEOC] charge.” (Docket

Entry 14 (the “Order”) at 7.) The Order cautioned, “[h]owever,

[that] this should not be read as a finding . . . that [Plaintiff]

has in fact exhausted his administrative remedies. Further factual

development is required for that determination.” (Id.) The Order

nevertheless granted Defendant’s request to dismiss Plaintiff’s ADA

claim, due to the Complaint’s lack of factual allegations

indicating that Plaintiff “is a ‘qualified individual’” or that

1 Docket Entry page citations utilize the CM/ECF footer’s

pagination.

2

Defendant “fired [Plaintiff] because of his disability.” (Id. at

9.) Noting that “[t]he factual allegations supporting

[Plaintiff’s] ERISA claim are even slimmer than those for his ADA

claim,” the Order similarly found that Plaintiff “has failed to

plausibly state a claim for relief under ERISA and his claim must

and will be dismissed.” (Id. at 11.) Conversely, the Order

dismissed Plaintiff’s FMLA claim, which Plaintiff agreed “was

erroneously pleaded” (id. at 9), on the grounds that Plaintiff, “by

his own admission, was only employed at [Defendant] for

approximately six months” (id. at 10). Thus, Plaintiff’s “period

of employment falls short of the required twelve months needed for

FMLA eligibility” (id.), and, as such, the “Complaint demonstrates

that [Plaintiff] was never eligible for FMLA” protections (id. at

9). The Order therefore granted the Dismissal Motion, except that

it specifically dismissed the matter without prejudice. (See id.

at 12 (“This action is DISMISSED WITHOUT PREJUDICE.” (emphasis in

original)).)* The accompanying Judgment likewise dismissed the

action without prejudice. (See Docket Entry 15 at 1.)

2 ‘“[(U]nless otherwise specified, a dismissal for failure to

state a claim under Rule 12(b) (6) is presumed to be both a judgment

on the merits and to be rendered with prejudice.” McLean v. United

States, 566 F.3d 391, 396 (4th Cir. 2009), abrogated on other

grounds by Lomax v. Ortiz-Marquez, U.S. _, 140 S. Ct. 1721

(2020); see also Carter v. Norfolk Cmty. Hosp. Ass’n, Inc., 761

F.2d 970, 974 (4th Cir. 1985) (“A district court’s dismissal under

Rule 12(b) (6) is, of course, with prejudice unless it specifically

orders dismissal without prejudice. That determination is within

the district court’s discretion.”).

Because neither the Order nor the Judgment explicitly granted

Plaintiff leave to amend his Complaint to replead his ADA and ERISA

retaliation claims (see Docket Entry 14 at 12; Docket Entry 15 at

1), the day after the Order and Judgment issued, Plaintiff filed

the Motion (see Docket Entry 16 at 2). Defendant did not oppose

the Motion. (See Docket Entries dated Sept. 22, 2022, to Oct. 18,

2022.) After Defendant’s response time elapsed, the Court (per the

undersigned) issued an order

(A) deeming [the Motion] a motion to alter or to amend

[the] Judgment, to include therein language explicitly

authorizing amendment of [the] Complaint, and

(B) re-opening the time for Defendant to respond to [the]

Motion (as now construed) and setting a deadline ...

for any such response, as well as a reply deadline...

for any timely filed response. Defendant did not file □

timely response to [the] Motion and thus, pursuant to

Local Rule 7.3(k), the Court treats [the] Motion as

unopposed and generally subject to granting as a matter

of course. However, in this case, Plaintiff filed [the]

Motion seeking leave to amend [the] Complaint after the

entry of [the] Judgment, which (although it dismissed

[the] Complaint without prejudice) did not expressly

grant permission for Plaintiff to amend [the] Complaint.

Pursuant to Britt v. DeJoy, 45 F.4th 790, 796 (4th Cir.

2022) (en banc), such a dismissal constitutes a final

judgment precluding leave to amend absent relief under

Federal Rules of Civil Procedure 59 and/or 60. Given

Britt’s recent vintage,!*! Britt’s expression of concern

about possible harm to litigants unaware of the decision,

and the short (extension-exempt) deadline for filing

motions under Federal Rule of Civil Procedure 59(e), the

issuing Magistrate Judge has elected to treat [the]

Motion as brought under that provision and to allow an

3 The United States Court of Appeals for the Fourth Circuit

issued Britt in August 2022, see id. at 790, only a few weeks

before issuance of the Order and Judgment in September 2022

(see Docket Entry 14 at 12; Docket Entry 15 at 1).

opportunity for the parties to address the matter from

that perspective.

(Text Order dated Oct. 18, 2022.) Defendant thereafter filed an

opposition to the Motion (see Docket Entry 18), to which Plaintiff

replied (see Docket Entry 19).

DISCUSSION

I. Relevant Standards

“The [Rules] provide several methods by which judgments may be

re-examined. One vehicle is a motion to alter or amend under Rule

59(e).” Zinkand v. Brown, 478 F.3d 634, 636-37 (4th Cir. 2007).

“[TRule 59(e)] does not specify the reasons that will support such

a motion and provides only that such motions ‘shall be filed no

later than 10 days after entry of the judgment.’” Id. at 637

(quoting Fed. R. Civ. P. 59(e)). However, the United States Court

of Appeals for the Fourth Circuit recognizes three situations where

“Rule 59(e) motions can be successful,” namely “(1) to accommodate

an intervening change in controlling law; (2) to account for new

evidence not available at trial; or (3) to correct a clear error of

law or prevent manifest injustice.” Id. (internal quotation marks

omitted). “Thus,” in the words of the Fourth Circuit, “Rule 59(e),

in essence, gives the district court a chance to correct its own

mistake if it believes one has been made.” Id.; see also Pacific

Ins. Co. v. American Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th

Cir. 1998) (“[Rule 59(e)] permits a district court to correct its

own errors, sparing the parties and the appellate courts the burden

of unnecessary appellate proceedings.” (internal quotation marks

omitted)).

In addition, the Fourth Circuit has long held that district

courts should generally not dismiss complaints under Rule 12(b)(6)

with prejudice without permitting a plaintiff at least one

opportunity to amend the complaint. See, e.g., Ostrzenski v.

Seigel, 177 F.3d 245, 252 (4th Cir. 1999) (holding, in response to

argument that “the allegations contained in [the plaintiff’s]

complaint do not set forth enough details so as to provide [the

defendant] and the court with a fair idea of the basis of the

complaint and the legal grounds claimed for recovery,” that “the

district court should not have dismissed the complaint with

prejudice without permitting [the plaintiff] an opportunity to

amend” (internal quotation marks omitted)).4 According to the

Fourth Circuit, in the context of

[a] dismissal under Rule 12(b)(6) . . .[,] the court

normally will give plaintiff leave to file an amended

complaint. The federal rule policy of deciding cases on

the basis of the substantive rights involved rather than

on technicalities requires that [a] plaintiff be given

every opportunity to cure a formal defect in his

pleading. This is true even though the court doubts that

[the] plaintiff will be able to overcome the defects in

4 A dismissal with prejudice operates as an appealable, final

order. See, e.g., Himler v. Comprehensive Care Corp., 790 F. Supp.

114, 115–16 (E.D. Va. 1992) (“A plaintiff generally can appeal from

a dismissal with prejudice. There the dismissal actually goes to

the merits of the case and is considered a final appealable order

so that the plaintiff may appeal therefrom.” (internal quotation

marks omitted)).

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his initial pleading. Amendment should be refused only

if it appears to a certainty that [the] plaintiff cannot

state a claim. The better practice is to allow at least

one amendment regardless of how unpromising the initial

pleading appears because except in unusual circumstances

it is unlikely that the court will be able to determine

conclusively on the face of a defective pleading whether

[the] plaintiff actually can state a claim.

Id. at 252-53 (internal quotation marks omitted) (emphasis in

original); see also Harman v. Unisys Corp., 356 F. App’x 638, 641

(4th Cir. 2009) (acknowledging that “[the plaintiff’s] complaint is

cumbersome and voluminous and contains numerous irrelevant

allegations” and that it “could have been more succinct and more

specific with regard to [the facts underlying the relevant

claims],” but “nonetheless hold[ing] that the district court should

have allowed [the plaintiff] an opportunity to refine her Title

VII, ADEA and § 1981 retaliation claims by amending her complaint,

rather than dismiss those claims with prejudice”).

Historically, the Fourth Circuit conducted a case-by-case

assessment to determine whether Rule 12(b)(6) dismissals without

prejudice that did not specifically grant leave to amend

constituted appealable final orders. See, e.g., Britt, 45 F.4th at

794 (“But what happens when a district court dismisses a complaint

or all claims within a complaint without prejudice yet remains

silent as to the possibility of amendment? In these cases, to

determine whether an order is final, we have adopted a case-by-case

methodology.”); see also Goode v. Central Va. Legal Aid Soc’y,

Inc., 807 F.3d 619, 623-24 (4th Cir. 2015) (discussing case-by-case

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process and guidelines derived therefrom), abrogated in part on

other grounds by Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir.

2020). Generally, however, where a “district court granted a

motion to dismiss for failure to plead sufficient facts in the

complaint,” the Fourth Circuit treated such dismissal as a non-

final, non-appealable order “because the plaintiff could amend the

complaint to cure the pleading deficiency.” Goode, 807 F.3d at

624; see also id. at 628 (“A district court’s decision is not final

and appealable merely because the court did not affirmatively state

that the plaintiff could have amended the complaint; rather, [the

Fourth Circuit] may only exercise appellate jurisdiction where a

district court’s order clearly indicates that amendment to the

complaint could not cure the complaint’s defects. A litigant may

not presume the finality of a district court’s order — particularly

an order expressly granting a motion to dismiss ‘without prejudice’

on the basis of pleading inadequacies that could be rectified with

little effort by amendment.” (citation omitted) (emphasis in

original)).

Thus, when plaintiffs appealed from such orders, the Fourth

Circuit traditionally dismissed the appeal and remanded with

instructions to allow the plaintiff to file an amended complaint.

See, e.g., Squires v. Merit Sys. Prot. Bd., 828 F. App’x 909, 910

(4th Cir. 2020) (“Dismissals without prejudice generally are not

appealable unless the grounds for dismissal clearly indicate that

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no amendment in the complaint could cure the defects in the

plaintiff’s case. Because the grounds for the district court’s

dismissal and our review of the record indicate that the

complaint’s deficiencies could be corrected by improved pleading,

[the Fourth Circuit] conclude[d] that the district court’s order is

neither a final order nor an appealable interlocutory or collateral

order” and “remand[ed] to the district court with instructions to

allow [the plaintiff] to amend the complaint . . . .” (internal

quotation marks, citation, and brackets omitted)); Steven B.

Snyder, M.D, P.A. v. Cynosure, Inc., No. 19-1459, 2019 WL 13222282,

at *1 (4th Cir. July 18, 2019) (explaining that, where “[t]he

district court specifically concluded that [the p]laintiffs pled

their intentional misrepresentation claims with ‘insufficient

particularity,’ and the court did not clearly indicate that no

amendment could cure this defect,” its “order is neither a final

order nor an appealable interlocutory or collateral order,”

necessitating “dismiss[al of] this appeal for lack of jurisdiction

and remand . . . to the district court with instructions to allow

[the p]laintiffs to amend their complaint” (citation omitted));

Golson v. Anderson, 667 F. App’x 43 (4th Cir. 2016) (explaining

that, “[a]n order dismissing a complaint without prejudice is not

an appealable final order if ‘the plaintiff could save his action

by merely amending his complaint,’” and that, “[w]here a district

court dismisses an action for failure to plead sufficient facts in

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the complaint, [the Fourth Circuit] lack[s] appellate jurisdiction

because the plaintiff could amend the complaint to cure the

pleading deficiency,” and “remand[ing] the case to the district

court with instructions to allow [the plaintiff] leave to file an

amended complaint”).

However, shortly before the issuance of the Order and

Judgment, the Fourth Circuit “establish[ed] a new rule governing

[such dismissals].” Britt, 45 F.4th at 791. Per the Fourth

Circuit:

Though our case-by-case approach was adopted with

the aim of judicial efficiency and avoiding piecemeal

appeals, with the benefit of hindsight, we now realize

that a more wholesale approach better fits our initial

aim of fulfilling the important purposes of the final

judgment rule. Accordingly, today, we adopt a better

approach: We now hold that when a district court

dismisses a complaint or all claims without providing

leave to amend, we need not evaluate the grounds for

dismissal or do anything more — the order dismissing the

complaint is final and appealable. By requiring the

district court to state whether a plaintiff has leave to

amend and concluding that an order is final when a

district court does not, we no longer speculate about

what the district court meant when stating “without

prejudice” or what the parties may do in the future.

Id. at 795-96 (citation omitted). In so holding, the Fourth

Circuit “acknowledge[d] that by adopting this new rule, we may

create new sources of confusion.” Id. at 796. “Yet,” according to

the Fourth Circuit, the new approach “place[s] all questions

regarding finality squarely in the hands best equipped to solve

them: the district court. Thus, when the district court believes

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a deficiency in a complaint can be cured, it should say so and

grant leave to amend.” Id.

II. Analysis

Here, the Dismissal Motion sought dismissal of “Plaintiff’s

Complaint in its entirety and with prejudice” for, in connection

with Plaintiff’s ADA claim, Plaintiff’s alleged failure to timely

file an EEOC charge of discrimination and, in regards to all three

claims, the Complaint’s alleged “lack [of] any specific factual

support,” a deficiency that Defendant maintained rendered them

“legally insufficient to state claims for relief which are

plausible on their face.” (Docket Entry 9 at 1-2.) The Order

denied Defendant’s timeliness challenge, concluding that the

timeliness question required “[f]lurther factual development” beyond

what could “be considered in the context of [a Rule 12 (b) (6)]

motion to dismiss.” (Docket Entry 14 at 6-7.) The Order agreed,

though, that the Complaint lacked the necessary factual development

to support Plaintiff’s ADA claim (see id. at 9) and his ERISA

retaliation claim (see id. at 11), necessitating their dismissal

(see id. at 9, 11). In so doing, however, the Order made clear

that its dismissal — without prejudice (see id. at 12) — of those

claims arose from the Complaint’s lack “of factual allegations”

(id. at 9; see also id. at 11) rather than from an inherent

impediment to those claims, unlike with Plaintiff’s FMLA claim (see

id. at 9-10 (concluding that Complaint established Plaintiff’s

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ineligibility for FMLA protections)). Additionally, one cannot say

from reviewing the Complaint, which Plaintiff had not previously

attempted to amend (see Docket Entries dated Oct. 26, 2021, to

Sept. 21, 2022), that “it appears to a certainty that [P]laintiff

cannot state a claim,” Ostrzenski, 177 F.3d at 253 (internal

quotation marks omitted), under the ADA and ERISA. (See Docket

Entry 1.) As such, this matter bears all the hallmarks of a

situation where a court should, and the Court perhaps intended to,

“permit[ Plaintiff] an opportunity to amend,” Ostrzenski, 177 F.3d

at 252.

Moreover — contrary to Defendant’s request — the Order

specifically provided for dismissal without prejudice (see Docket

Entry 14 at 12), an approach that traditionally signified the

dismissal “[wa]s not final or on the merits” and afforded

“plaintiff leave to file an amended complaint,” Ostrzenski, 177

F.3d at 252 (internal quotation marks and emphasis omitted).

However, shortly before issuance of the Order, the Fourth Circuit

introduced “a new rule,” Britt, 45 F.4th at 791, that upended

nearly thirty years of precedent, see id. at 794. As a result,

just as the Fourth Circuit “recognize[d]” might occur, Plaintiff

found himself “entrapped by [the Fourth Circuit’s] new rule,” id.

at 796. See also id. (observing that “[s]luch a ‘trap’ may arise

where a district court dismisses a complaint without prejudice and

without giving leave to amend but a plaintiff would nonetheless

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like to amend h[is] complaint”). Yet, “the Federal Rules of Civil

Procedure should not be used to set traps for unwary litigants.”

Id. Additionally, nothing in Britt alters the well-established

principle that a court should ordinarily “allow at least one

amendment,” Ostrzenski, 177 F.3d at 253 (internal quotation marks

omitted), when it dismisses a complaint pursuant to Rule 12 (b) (6)

for failure to allege sufficient facts to state a viable claim.

See generally Britt, 45 F.4th 790.

Accordingly, given Plaintiff’s expressed desire to amend his

Complaint (see, e.g., Docket Entry 16), if the Court denies the

Motion and Plaintiff appeals the dismissal of his ADA and ERISA

retaliation claims, the Fourth Circuit will almost certainly

“remand [this case] to the district court with instructions to

allow [the plaintiff] to amend [his C]lomplaint,” Squires, 828 F.

App’ at 910. Rule 59(e) exists, in part, to “spar[e] the parties

and the appellate courts the burden of [such] unnecessary appellate

proceedings,” Pacific Ins., 148 F.3d at 403 (internal quotation

marks omitted). The Court should therefore grant the Motion and

amend the Judgment to authorize Plaintiff to file an amended

complaint. See, e€.g., E.E.O.C. v. Lockheed Martin Corp., Aero &

Naval Sys., 116 F.3d 110, 112 (4th Cir. 1997) (affirming grant of

Rule 59(e) motion to reconsider order denying enforcement of

subpoena under “‘to correct a clear error of law or prevent

manifest injustice’” prong and observing: “Indeed, if, as the

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district court further found, our precedent ‘virtually mandate[s]’

enforcement of the subpoena in this case, the district court would

likely have abused its discretion if it had failed to grant the

Rule 59(e) motion” to authorize such enforcement (brackets and

emphasis in original)).5

CONCLUSION

The circumstances of this case warrant Rule 59(e) relief.

IT IS THEREFORE RECOMMENDED that the Motion (Docket Entry 16),

construed as brought under Rule 59(e), be granted and the Judgment

5 In its opposition to the Motion, Defendant does not address

any of these considerations. (See generally Docket Entry 18.)

Instead, Defendant argues only that (1) “[t]here is no evidence

that the Court did not treat Plaintiff’s Complaint’s bare bones

factual allegations as true or . . . draw all inferences in

Plaintiff’s favor” or “consider all of Plaintiff’s allegations when

making its decision to not only dismiss Plaintiff’s claims, but to

do so without expressly granting Plaintiff leave to amend” (id. at

12-13) and (2) “[t]he Court determined that Plaintiff’s conclusory

and speculative allegations were insufficient to state a claim that

Defendant discriminated against Plaintiff based on his alleged

disability in violation of the ADA or that Defendant retaliated

against Plaintiff for utilizing Defendant’s available short-term

disability insurance program in violation of ERISA” (id. at 13).

“As such,” in Defendant’s view, “there is simply no evidence that

the Court’s Order contains any ‘clear errors of law’ necessitating

vacating its Order dismissing Plaintiff’s Complaint, or that

denying Plaintiff’s Motion to Alter or amend would result in

manifest injustice.” (Id.) That the Court adhered to the relevant

Rule 12(b)(6) standards in evaluating Plaintiff’s Complaint does

not undermine the foregoing conclusion that the circumstances of

this case warrant Rule 59(e) relief authorizing Plaintiff to file

an amended complaint.

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(Docket Entry 15) be altered to permit Plaintiff twenty-one days to

file an amended complaint that corrects the defects noted in the

Order.

This 12th day of April, 2023.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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