North Carolina Business Litigation Report

Cope v. Daniel, June 10, 2008 (Tennille)(unpublished)

The Business Court denied the Defendant's request to amend its Answer to add a statute of limitations defense and a defense of ERISA preemption.  Judge Tennille found that the Defendant had unduly delayed by raising the statute of limitations defense fourteen months after the filing of its Answer, and that the Plaintiff would be prejudiced if it were allowed.  The Court denied the ERISA amendment for another reason, finding it to be futile.

The Court held that "[a] delay of over fourteen months before filing a statutes of limitation defense is an undue delay and causes undue prejudice to Plaintiff."  It also held that "[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. . . . The situation where statutes of limitations defense is raised is not one of those circumstances."

On the ERISA claim, the Court held that although the Complaint did reference the pension plan of the practice, this was insufficient to warrant ERISA preemption because the claim did not involve the existence or extent of benefits under an employee benefit plan. 

Full Opinion

Brief in Support of Motion to Amend

Brief in Opposition to Motion to Amend

Reply Brief in Support of Motion to Amend

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Mack Sperling
Brooks Pierce, LLP
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