On November 25, 2015—with a little more than a month remaining in the discovery period—TEAM served interrogatories and requests for production of documents on Cline at the address listed in the court's order. See 2d Stanfield Aff. [D.E. 55-1] ¶ 3. On November 30, 2015, TEAM served request for admissions on Cline at the address listed in the court's order. See id.; TEAM'S Reqs. for Admis. [D.E. 51-2]. The request for admissions stated, in part, "The Admissions are to be fully answered, under oath, in writing within thirty (30) days afer service in accordance with Rules 26 and 1 TEAM and Western would not consent to Cline filing a response to the motion. See id. ¶ 6. Cline requested leave to file a response to the summary-judgment motion and for 14 days within which to respond to the request [*7] for admissions. See id. ¶¶ 6-7.
On September 20, 2016, the court dismissed TEAM and Western's motion for summary judgment without prejudice for failure to conform with Local Civil Rule 56.1 [D.E. 47]. The court denied as moot Cline's motion for leave to file a response in opposition, but did not separately address his request to withdraw his admissions. Id.
On October 3, 2016, TEAM and Western refiled their motion for summary judgment [D.E. 48], along with a supporting memorandum [D.E. 49], a statement of material facts [D.E. 50], and an appendix [D.E. 51]. On October 27, 2016, Cline moved under [T]he court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits.
We conclude with a comment on 2 To the extent TEAM owed Cline duties not to take these actions, those duties arose under the [*23] subcontract, "not by operation of law independent of the contract, and the asserted breach of such duty by [TEAM] does not give rise to an action in tort." Id. Thus, the fraud crossclaim fails.
Alternatively, Cline abandoned these actions as sources of his fraud crossclaim, asserting instead that he premises his fraud claims on alleged misrepresentations TEAM'S project and operation managers made to the effect that Cline was behind schedule and failed to provide adequate staffing. See [D.E. 53] 10. 3 To succeed on a fraud claim, the plaintiff must prove "(1) [a] [f]alse representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party," where "any reliance on the allegedly false representations must be reasonable."
1 Cline does not say how he learned that TEAM had mailed these documents to his old North Carolina address.
2 In exercising supplemental jurisdiction over TEAM'S state-law claims, the court applies North Carolina substantive law. See
3 In his opposition brief, Cline also asserts that he bases his fraud crossclaim on statements to the effect that Cline "was closing his doors and was bankrupt, and that he walked off the project." [D.E. 53] 10. Cline did not assert these theories of fraud when pleading his crossclaim. See [D.E. 16] ¶¶ 32-40. Cline cannot amend his complaint via summary-judgment briefing. See, e.g.,