EARTH FARE, INC. S MOTION TO ALTER OR AMEND A JUDGMENT

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1 STATE OF SOUTH CAROLINA COUNTY OF GREENVILLE Tracey Rose, v. Plaintiff, Central Realty Holdings, LLC & Earth Fare, Inc., STATE OF SOUTH CAROLINA COUNTY OF GREENVILLE Earth Fare, Inc., v. Central Realty Holdings, LLC, Defendants. Plaintiff, Defendant. IN THE COURT OF COMMON PLEAS C. A. No.: 2017-CP IN THE COURT OF COMMON PLEAS C. A. No.: 2018-CP EARTH FARE, INC. S MOTION TO ALTER OR AMEND A JUDGMENT Pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure, Earth Fare Inc. ( Earth Fare ) respectfully moves the Court to alter or amend its Orders dated October 19, 2018, in the above-referenced matters to (1) specify that the Court s dismissal of Earth Fare s crossclaims in the Rose action is without prejudice as that appears to be the Court s intent; (2) clarify whether Earth Fare s Motion to Amend its Complaint, though not before the Court, but argued by consent, is considered heard and granted or whether a hearing needs to be set as to that motion; and (3) provide for 180 days for discovery in the Earth Fare action instead of 90 days. This

2 extension on the discovery period has been consented to by the parties. INTRODUCTION This case arises out of a trip and fall incident occurring in a parking lot owned by Central Realty Holdings, LLC ( CRH ) that services Earth Fare s grocery store in Greenville, South Carolina. CRH and Earth Fare have a commercial lease agreement in place which governs the parties obligation. Tracey Rose ( Rose ) initially filed suit (C.A. No CP ) just against CRH and later added Earth Fare as a defendant via an amended complaint (the Rose action ). Earth Fare filed a late Answer and subsequently amended the Answer to assert crossclaims against CRH for breach of contract, contribution, contractual indemnification, and equitable indemnification. Earth Fare also sought relief from default which was denied by Hon. Perry H Gravely by Order dated June 25, Thereafter, CRH filed a Motion to Dismiss Earth-Fare s Cross-Claims in the Rose action. Shortly after filing the above-referenced cross-claims, Earth Fare also brought an independent action against CRH (Civil Action No CP ) (the Earth Fare action ) alleging similar causes of action as the cross-claims in the instant lawsuit. In response, CRH filed several dispositive motions, including a motion for summary judgment. Earth Fare has since moved for leave to file an amended complaint in the Earth Fare action asserting several new causes of action against CRH. Both motions to dismiss were heard before this Court on October 5, At the hearing, counsel for CRH and Earth Fare also addressed Earth Fare s pending Motion to Amend the Complaint in the Earth Fare action. By Form 4 Order dated October 19, 2018, this Court granted CRH s Motion to Dismiss in the Rose action indicating Defendant Central Realty Holding s Motion to Dismiss the Cross Claims of Defendant Earth Fare, Inc. is hereby granted. See Exhibit A, attached hereto. In addition, the Court issued a Form 4 Order in the Earth Fare action holding

3 CRH s motion for summary judgment in abeyance for 90 days so the parties could conduct discovery. See Exhibit B, attached hereto. CRH S MOTION TO DISMISS CROSS-CLAIMS IN THE ROSE ACTION In the Rose action, CRH moved to dismiss the cross-claims contained in Earth Fare s late Answer which was ultimately not accepted by Judge Gravely. As argued at the hearing, Earth Fare asserts there were no cross-claims to be dismissed because its pleading containing the crossclaims was not accepted by virtue of the denial of relief from default. Alternatively, Earth Fare argued that the cross-claims should be dismissed without prejudice so they can proceed in the Earth Fare action. As outlined above, CRH s motion to dismiss Earth Fare s cross-claims in the Rose action was granted by a Form 4 Order. However, this Order does not indicate whether this dismissal was with or without prejudice. The Order also does not specify whether the dismissal of the crossclaims in the Rose action is pursuant to Rule 41(a) or Rule 41(b), SCRCP. Rule 41(a)(2) SCRCP (voluntary dismissal by order of the court) provides that, [u]nless otherwise specified in the order, a dismissal... is without prejudice. Conversely, Rule 41(b), SCRCP (involuntary dismissal by order of the court) states that [u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule... operates as an adjudication upon the merits. Because the Court s order fails to state whether the dismissal falls under Rule 41(a) or Rule 41(b), an ambiguity is created as to whether the dismissal of the crossclaims is with or without prejudice. Given that the Court s Order in the separate Earth Fare action provides for discovery on identical causes of action, it appears the Court intended to dismiss the cross-claims in the Rose action without prejudice. When read together, the Orders in the Rose action and Earth Fare

4 action reflect an intent of the Court to dismiss Earth Fare s cross-claims in the Rose action without prejudice and to permit discovery in the Earth Fare action. Therefore, Earth Fare requests the Order granting CRH s motion to dismiss Earth Fare s cross-claims in the Rose action be amended to reflect a dismissal of the cross-claims without prejudice. EARTH FARE S MOTION TO AMEND THE COMPLAINT IN THE EARTH FARE ACTION At oral argument on October 5, 2018, both sides presented argument before the Court with respect to Earth Fare s Motion to Amend its Complaint in the Earth Fare action. That motion was not set to be heard. However, CRH s counsel proposed that the Court proceed to address the Motion to Amend and both parties counsel presented argument on that motion. At the hearing, the Court did not indicate whether it was going to rule on this motion. The Form 4 Orders issued on October 19, 2018, also do not address the Motion to Amend. Earth Fare requests the Court indicate whether it considers the Motion to Amend heard and is permitting discovery on the proposed additional causes of action or whether a separate hearing on the Motion to Amend is needed. ADDITIONAL TIME FOR DISCOVERY The Court s Order in the Earth Fare action provides for the parties to conduct discovery within 90 days. Both Earth Fare and CRH respectfully submit that this time not sufficient to allow adequate discovery given the written discovery and depositions needed, trial conflicts, Thanksgiving and Christmas holidays, and other conflicts. Earth Fare and CRH s counsel have conferred and agreed to complete discovery in 180 days instead of 90 days. CONCLUSION Based on the foregoing, Defendant Earth Fare, Inc. respectfully requests this Court amend its previous orders to (1) clarify that Earth Fare s cross-claims are dismissed without prejudice in

5 the Rose action; (2) indicate whether Earth Fare s Motion to Amend its Complaint in the Earth Fare action was heard or whether a hearing needs to be set; and (3) that the parties have 180 days for discovery in the Earth Fare action. October 29, 2018 Columbia, South Carolina HAYNSWORTH SINKLER BOYD, P.A. s/roopal S. Ruparelia Roopal S. Ruparelia (SC Bar No ) H. Sam Mabry, III (SC Bar. No. 3252) 1201 Main Street, 22 nd Floor Post Office Box ( ) Columbia, South Carolina (803) telephone (803) fax rruparelia@hsblawfirm.com Attorneys for Earth Fare, Inc.