Filing a lawsuit within the time allowed by the North Carolina wrongful death statute is essential if a family is to have any chance at receiving fair compensation for a loved one’s death caused by negligence or wrongful acts.
Generally, claims not filed within the statute of limitations (and the statute of repose, if applicable) are dismissed as untimely, and the family receives nothing. There are a few, limited exceptions to this general rule. One of these occurs when a plaintiff who filed a timely complaint is allowed to amend his or her pleading in order to add additional parties or claims. However, the burden is still on the plaintiff to prove that the amended complaint relates back to the filing of the original action – and, in many situations, the plaintiff must obtain the court’s permission in order to file the amended document.
Facts of the Case
In a case recently considered by the United States District Court for the Middle District of North Carolina, the plaintiff was the executrix of the estate of a tree trimmer who died while performing his duties. The plaintiff filed her original complaint in state court in July 2014, naming several defendants whom she averred were responsible for the accident that claimed the decedent’s life, due to their negligence. One of the defendants removed the state court action to federal court. In a first amended complaint filed in December 2014, the plaintiff removed some of the original defendants, added new parties, and added new claims.
In November 2016, the plaintiff filed a second amended complaint without asking the federal district court for leave to amend. This complaint sought to add four individual directors from two of the corporate defendants named previously in the action and, essentially, averred that a “sham corporation” had been set up to deny recovery to the plaintiff.
The defendants filed responses to the amended complaint, and thereafter the plaintiff filed a motion formally seeking leave to amend her amended complaint after the deadline previously set by the federal district court had passed. The matter was referred to a magistrate judge for an opinion and recommendation.
Recommendation of the Magistrate Judge
The judge recommended that the court deny the plaintiff’s motion for leave to amend, opining that the plaintiff had not demonstrated the requisite diligence to satisfy the “good cause” standard. According to the judge, the plaintiff’s motion for leave to amend could have been timely made, and her failure to review the court’s previous order “as carefully as it should have been” did not excuse her failure to act within the deadline established by the court.
The court further noted that the plaintiff could not demonstrate that the evidence supporting her motion could not have been discovered until after the amendment deadline passed or that there was good cause to amend her first amended complaint to add the four individual directors and officers whom she sought to add as party defendants. According to the judge, the plaintiff knew of these officers and directors before the amendment deadline.
An Experienced Wrongful Death Attorney in Raleigh
Those whose negligence caused another person’s death often fight very hard against a finding of legal liability for wrongful death. To have a chance at receiving reasonable compensation, a family who has lost a loved one should talk to a results-oriented Raleigh wrongful death attorney about their loved one’s accident as soon as possible. Nagle & Associates offers a free consultation in wrongful death cases. An appointment can be scheduled by calling 800-411-1583. We serve clients throughout North Carolina, including in Durham, Wake Forest, Cary, Garner, Apex, Clayton, and Morrisville.
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