Mescall v. Renaissance at Antiquity

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL ACTION NO. 3:23-CV-00332-RJC-SCR

GERALD THOMAS MESCALL, )

)

Plaintiff, )

)

v. ) ORDER

)

RENAISSANCE AT ANTIQUITY, et. al., )

)

Defendants. )

THIS MATTER is before the Court on Defendants’ “Motion[s] to Dismiss” (Doc. Nos. 7

& 11), both filed August 29, 2023, and pro se Plaintiff’s “Response …; Requisition for Leave to

Amend Pleading… and to Proceed as Class … or in the Alternative Appoint Counsel for Co-

Plaintiffs or Withdraw All Co-Plaintiffs Except Lead Plaintiff Mescall” (Doc. No. 18).1

The pro se Complaint (Doc. No. 1) is hardly a model of clarity or brevity. The issues

apparently involve an apartment complex where Plaintiff and other senior citizens reside. Plaintiff

asserts that over the course of a five-year period, individually-named Defendants took certain

actions that Plaintiff claims harmed Plaintiff or others in the apartment community. These

1 The Court reminds pro se Plaintiff that he must comply with the Local Rules, including LCvR 7.1, which

sets forth requirements for motions and responses in civil cases. See https://www.ncwd.uscourts.gov/court-

info/local-rules-and-orders/local-rules. Moreover, Defendants allege that Plaintiff’s Response appears to

have been partially written with the aid of artificial intelligence (“AI”). (Doc. No. 18 at 7, Doc. 20 at 1-2).

Use of artificial intelligence to write pleadings is a novel issue, and appears to be untread territory in the

Fourth Circuit. However, recent caselaw from outside of this jurisdiction supports the common-sense

conclusion that the use of artificial intelligence creates challenges, raises ethical issues, and may result in

sanctions or penalties when used inappropriately. Mata v. Avianca, Inc., No. 22-cv-1461, 2023 WL

4114965, at *1 (S.D.N.Y. June 22, 2023) (finding “bad faith on the part of [legal counsel] based upon acts

of conscious avoidance and false and misleading statements to the Court” and imposing sanctions when

counsel “submitted non-existent judicial opinions with fake quotes and citations created by the artificial

intelligence tool ChatGPT”).

allegations include faulty elevators (id. at 17), changed building furniture (id. at 19), access issues

(id. at 15-18) and unlawful rental rate increases. (Id. at 21). Plaintiff couches these harms as “elder

abuse.” (Id. at 2).

On May 31, 2023, Plaintiff filed his pro se Complaint, purporting to assert a class action

on behalf of himself and fourteen other senior citizens who live in the apartment complex. Plaintiff

cites several statutes, including the Fair Housing Act, 42 U.S.C. § 3601 et seq., the Older

Americans Act, 42 U.S.C. § 3001 et seq., and the Americans With Disabilities Act, 42 U.S.C. §

12101 et seq.

On August 29, 2023, Defendants filed their Motions to Dismiss (Doc. Nos. 7 & 11).

Among other things, Defendants correctly argue that a pro se plaintiff may not represent other

plaintiffs, including in class actions. “A pro se plaintiff may not represent other plaintiffs, and pro

se class actions are not permissible.” Lumumba v. Clarke, No. 7:22-CV-00080, 2022 WL 1449197,

at *1 (W.D. Va. Apr. 22, 2022) (directing clerk of court “to update the docket to reflect that

Lumumba is the only plaintiff in this case”)(citing Oxendine v. Williams, 509 F. 2d 1405, 1407

(4th Cir. 1975) (“[I]it is plain error to permit this imprisoned litigant who is unassisted by counsel

to represent his fellow inmates in a class action.”); see also Braun on behalf of C.B. v. North

Carolina, No. 3:23-MC-7-RJC, 2023 WL 425399, at *2 (W.D.N.C. Jan. 26, 2023) (“The Fourth

Circuit has rejected the right of individuals to litigate pro se on behalf of others, even with respect

to a non-attorney parent’s claims on behalf of their minor children in federal court”)(citing Myers

v. Loudoun Cnty. Pub. Sch., 418 F.3d 395, 401 (4th Cir. 2005)).

In his “Response …; Requisition for Leave to Amend Pleading… and to Proceed as Class

… or in the Alternative Appoint Counsel for Co-Plaintiffs or Withdraw All Co-Plaintiffs Except

Lead Plaintiff Mescall” (Doc. No. 18)2, Plaintiff seeks leave to amend, and asks the Court to

appoint counsel to represent the class or, in the alternative, to permit him to proceed alone. As

Defendants point out, this filing asserts additional factual allegations that are not mentioned in the

Complaint. (Doc. No. 20 at 1). For instance, in his Response, Plaintiff for the first time states that

he and the other proposed class members are, in fact, residents at the Renaissance at Antiquity in

Cornelius, North Carolina. (Doc. No. 18 at 3).

The Court is mindful of the latitude extended to the pleadings of pro se litigants. See

Carriker v. Carriker, No. 3:22-CV-00448-DSC, 2022 WL 10208236, at *1 (W.D.N.C. Oct. 17,

2022) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (courts should “[c]onstru[e] [a pro se]

petitioner’s inartful pleading liberally”)). But courts cannot act as the pro se plaintiff’s advocate

or develop claims which the plaintiff failed to raise clearly on the face of his complaint. Id. (citing

Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (recognizing that district courts are not

expected to assume the role of advocate for the pro se plaintiff)). Moreover, the Court may not

consider allegations made outside of a complaint or an amended complaint. McNulty v.

Commc’ns Workers of Am., No. 3:12CV-22-MOC-DSC, 2012 WL 1569601, at *3 (W.D.N.C.

Mar. 16, 2012) (“Additional factual allegations contained in a response brief are not considered on

a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6)”).

At this early point in the proceedings, the Court has formed no opinion about the merits of

Plaintiff’s factual allegations and legal claim or claims. In light of factual allegations that if fully

supported and developed could possibly give rise to an actionable claim, and recognizing that

Plaintiff has inartfully sprinkled those allegations across two filings, the Court will grant him leave

2 On September 20, 2023, the Court ordered Plaintiff to show cause why the Complaint should not be dismissed for

failure to prosecute after failing to reply to the Motions to Dismiss. (Doc. No. 17). Plaintiff responded on October

17, 2023 (Doc. No. 18), within the response deadline provided by the Court, and the Court has considered this response

accordingly. However, pro se Plaintiff is once again warned that he must comply with all deadlines in this matter.

to file an amended complaint. See Corry v. S.C. Johnson & Son, Inc., No. 3:21-CV-49-FDW-

DCK, 2021 WL 2459806, at *1 (W.D.N.C. June 16, 2021) (prior to dismissing complaint as

frivolous, Court granted pro se plaintiff leave to amend), aff’d, No. 21-1781, 2021 WL 5412245

(4th Cir. Nov. 19, 2021).

The Court cautions Plaintiff to carefully consider the legal requirements for a valid

complaint. Federal Rule of Civil Procedure 8 requires “a short and plain statement of the claim

showing the pleader is entitled to relief” and “[e]ach allegation must be simple, concise, and

direct.” FED. R. CIV. P. 8(a)(2), (d)(1). The rule is intended to: “give fair notice of the claim being

asserted” to the adverse party; “sharpen the issues to be litigated”; and “confine discovery and the

presentation of evidence at trial within reasonable bounds.” T.M. v. D.C., 961 F. Supp. 2d 169,

173–74 (D.D.C. 2013) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977)).

A plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must

contain enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly,

550 U.S. at 555).

Accordingly, the Court ORDERS Plaintiff to file a short, plain, and complete amended

complaint that organizes and consolidates all of his factual allegations and legal claims against

Defendants. The amended complaint will supersede, that is, completely replace, the initial

complaint once it is filed.

The Court will not, however, appoint counsel to represent Plaintiff or his purported class.

The Court is not aware of any case law, statute, Federal Rule of Civil Procedure, or Local Rule

requiring the appointment of counsel in a civil case such as the one brought by Plaintiff, and no

funds have been appropriated for that purpose. In fact, “[t]here is no right to appointment of

counsel in a civil case, and discretionary appointment of counsel in such cases is warranted ‘only

in exceptional cases.’” Ardis v. Dickey, No. 3:23-CV-1171-SAL, 2023 WL 6996571, at *7 (D.S.C.

Oct. 24, 2023) (quoting Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975)); see also Hall v.

Holsmith, 340 F. App’x 944, 946 (4th Cir. 2009). Instead, Plaintiff has the option to retain counsel

at his own expense. The Court cautions Plaintiff that in any event – even if he is unable to

retain counsel and proceeds pro se – he must file his amended complaint by the date set

below.

It is well-settled that an amended pleading supersedes the original pleading, and that

motions directed at superseded pleadings are to be denied as moot. Hall v. Int’l Union, United

Auto., Aerospace & Agric. Implement Workers of Am., No. 3:10-CV0-418-RJC-DSC, 2011 WL

4014315, at *1 (W.D.N.C. June 21, 2011); Young v. City of Mount Ranier, 238 F.3d 567, 572-73

(4th Cir. 2001).

NOW THERFORE IT IS HEREBY ORDERED that:

1. Plaintiff is GRANTED leave and ORDERED to file an Amended Complaint on or

before December 15, 2023.

2. Defendants’ “Motion[s] to Dismiss” (Doc. Nos. 7 & 11) are administratively DENIED

as moot without prejudice to refile following the filing of the Amended Complaint.

3. The Clerk is directed to send copies of this Order to pro se Plaintiff, to counsel for

Defendants, and to the Honorable Robert J. Conrad, Jr..

SO ORDERED.

Signed: November 13, 2023

Susan C. Rodriguez ; a

United States Magistrate Judge □ MF