King v. Wilmington Transit

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LEROY KING,
Plaintiff-Appellant,
v.
No. 97-1521
WILMINGTON TRANSIT COMPANY; DON
BETZ, Mayor; CITY OF WILMINGTON,
NORTH CAROLINA,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, Senior District Judge.
(CA-96-198-7-BR-2)
Submitted: March 31, 1998
Decided: June 22, 1998
Before WILKINS and MICHAEL, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
C. Leon Lee, II, THE LEON LAW FIRM, P.A., Fayetteville, North
Carolina, for Appellant. Thomas C. Pollard, City Attorney, Wilming-
ton, North Carolina; Robert A. O'Quinn, STEVENS, MCGHEE,
MORGAN, LENNON & O'QUINN, Wilmington, North Carolina, for
Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Leroy King appeals the district court's denial of his motion to
amend his complaint. King's complaint purported to invoke jurisdic-
tion pursuant to Title VII, 42 U.S.C. § 2000e-2 (1994), and/or the
Americans with Disabilities Act, 42 U.S.C. § 12112 (1994). Defen-
dant Wilmington Transit Company filed a motion to dismiss and an
answer on December 17, 1996. On January 2, 1997, King filed a
motion for leave to amend the complaint to add a claim under the
Federal Trade Commission Act ("FTCA"). On January 22, the
remaining Defendants, Mayor Don Betz and the City of Wilmington,
filed a motion to dismiss and an answer.
The district court granted Defendants' motions to dismiss, because,
inter alia, King failed to allege that he was wrongfully terminated due
to his race, color, religion, sex, national origin, or disability. He
alleged only that his employer "failed to apply its disciplinary policy,
as they [sic] exist, inclusive of its interpretation, spirit, and intent." In
addition, the district court denied King's motion to amend, because
the FTCA does not create a private cause of action, and thus, King's
proposed complaint would be subject to dismissal for failure to state
a claim. King appeals only the denial of his motion to amend, arguing
that his proposed amendments would cure any defect in the original
complaint.
"There is no error in disallowing an amendment when the claim
sought to be pleaded by amendment plainly would be subject to a
motion to dismiss under Fed. R. Civ. P. 12(b)(6)." Frank M. McDer-
mott, Ltd. v. Moretz, 898 F.2d 418, 420-21 (4th Cir. 1990). Further,
where a motion to amend would be wholly futile, there is no abuse
of discretion in denying the motion. See Foman v. Davis, 371 U.S.
178, 182 (1962). Because King's proposed amended complaint failed
to state a claim, see American Airlines v. Christensen, 967 F.2d 410,
2
414 (10th Cir. 1992) (FTCA does not create a private cause of
action); Dreisbach v. Murphy, 658 F.2d 720, 730 (9th Cir. 1981)
(same); Fulton v. Hecht, 580 F.2d 1243, 1248-49 n.2 (5th Cir. 1978)
(same), the district court did not err in denying the motion to amend.
Thus, we affirm the district court's order. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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