Opinion
No. 1:98CV00479
November 14, 2002
ORDER GRANTING PLAINTIFF'S MOTION TO RE AND [Doc. 60] and, THEREFORE, DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS [Doc. 58]
When this matter was before the Court earlier, discovery was bifurcated upon the motion of the Defendant and the Title VII claim proceeded to summary judgment. This Court did spend considerable time on the issue whether Ms. Farlow was an employee of Wachovia or an independent contractor. In issuing its ruling upon that motion, the Court inadvertently overlooked the state claims and entered judgment for the Defendant. Upon appeal, the Fourth Circuit upheld the ruling on summary judgment and vacated the judgment dismissing the state claims, remanding with instructions that this matter — the Plaintiffs remaining claims and the Defendant's counterclaim — could be dismissed without prejudice so that it could proceed on remand in state court or be decided here if this Court exercised its discretion to do so.
Under normal circumstances, had the state claims and counterclaim not been overlooked, the order allowing the Defendant's motion for summary judgment would have dismissed the remaining claims without prejudice so they could be resolved in state court. This Court has not spent considerable time on these matters nor have the parties spent appreciable time on these matters in the earlier proceeding. Either the claim or counterclaim may result in trial and, appropriately, that should proceed in state court. Therefore, it is ORDERED that the Plaintiff's pendant state claims and the Defendant's counterclaim are DISMISSED WITHOUT PREJUDICE and REMANDED to the North Carolina General Court of Justice. In view of the remand, the Court will not reach the merits of the Defendant's motion to dismiss which is DENIED WITHOUT PREJUDICE as moot.