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Stacey v. City of Hermitage

January 31, 2008

RAYMOND STACEY, INDIVIDUALLY AND AS CO- EXECUTOR OF THE LAST WILL OF HELEN STACEY, PLAINTIFF,
v.
CITY OF HERMITAGE; GARY P. HINKSON, INDIVIDUALLY; EDWARD STANTON, INDIVIDUALLY; RUSSELL V. PENN, JR., INDIVIDUALLY; JEFFREY OSBORNE, INDIVIDUALLY; ROBERT S. GOELTZ, INDIVIDUALLY; JAMES PAT WHITE, INDIVIDUALLY; THOMAS W. KUSTER; H. WILLIAM WHITE, III; ECKER, KUSTER, MCCONNELL & EPSTEIN, ATTORNEYS AT LAW, INDIVIDUALLY; CHRISTOPHER FERRY; WATTS & PEPICELLI, ATTORNEYS AT LAW; JERRY G. CARTWRIGHT, JR., ATTORNEY AT LAW; RICHARD SEREDAY, ROSEANN SEREDAY, DOING BUSINESS AS SEREDAY EXCAVATING; ELIZABETH F. FAIR, INDIVIDUALLY AND IN OFFICIAL CAPACITY AS PROTHONOTARY OF MERCER COUNTY, THRU HER OFFICE, EMPLOYEES AND AGENTS, DEFENDANTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER

Pending before the Court for consideration and disposition are the following: the MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT (Document No. 125) filed by Penn Power Company ("Penn Power"); the MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT (Document No. 127) filed by Ohio Edison Company ("Ohio Edison"); PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT (Document No. 130); the MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT (Document No. 134) filed by Ekker, Kuster McConnell & Epstein ("Ekker"); the MOTION TO STRIKE PLAINTIFF'S AMENDED COMPLAINT (Document No. 138) filed by Elizabeth F. Fair; the MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT (Document No. 144) filed by Penn Power and Ohio Edison; and PLAINTIFF'S MOTION TO REINSTATE NON-CAPTION DEFENDANTS UNTIL ALL CLAIMS IN THE ORIGINAL PRO SE COMPLAINT ARE FULLY DETERMINED (Document No. 145). The time set for responses by the Court has expired and the motions are ripe for disposition.

This case arose from the condemnation and subsequent demolition of the home of Plaintiff's mother in November 2000 -- over seven years ago. The procedural history in this case is tortuous and will not be repeated in full. The case has been embroiled in extensive legal wrangling and is still in the initial pleadings stage.

The original pro se complaint was dismissed in 2003 by the Honorable Robert J. Cindrich. On November 24, 2004, the United States Court of Appeals for the Third Circuit ("Court of Appeals") affirmed this order in part and vacated in part. On March 15, 2005, counsel entered an appearance on behalf of Plaintiff and on April 15, 2005, counsel filed an amended complaint. On October 11, 2005, the United States Supreme Court vacated the ruling of the Court of Appeals as to the Rooker-Feldman doctrine and remanded to the Court of Appeals for further consideration. On April 19, 2006, the Court of Appeals issued a second opinion (the "Opinion") which affirmed in part and vacated in part the district court's original order of dismissal and remanded for further proceedings consistent with its Opinion. (Document No. 103).

As relevant now, the Opinion held that some, but not all, of Defendants' asserted grounds for dismissal had merit, Opinion at 8, and concluded that the only claims which survived the motions to dismiss were:

(1) claims under § 1983 against the City defendants and Sereday arising from the demolition; (2) claims under § 1983 against the City defendants arising from the imposition of the lien against the Stacey property; and (3) legal malpractice claims against the Staceys' attorneys.

Opinion at 14 (emphasis added). The Opinion further directed that Raymond Stacey be afforded an opportunity to amend the complaint to demonstrate standing, Opinion at 9, and instructed Plaintiff to clearly specify the parties to whom he refers in the various claims. Opinion at 11.

On August 1 and 2, 2006, this Court amended the caption of this action to reflect the Opinion of the Court of Appeals (Document Nos. 104, 105). This Court's Order dated August 1, 2006 instructed Plaintiff to file an amended complaint "limited to the recited surviving claims for the relevant time period(s) set forth in the Opinion and plaintiff must demonstrate standing for all claims and plead in a more definite manner with specificity regarding 'the parties to whom he refers with respect to the remaining claims.'" Plaintiff sought reconsideration of the August 1 and 2 Orders and on August 21, 2006, without seeking leave of court, Plaintiff filed an amended complaint against all defendants. Several defendants filed responses thereto.

On September 6, 2006, the Court denied Plaintiff's motion for reconsideration, ordered the amended complaint dated August 21, 2006 to be stricken, and explained:

This Court and Plaintiff are bound by the rulings of the Court of Appeals which authorized Plaintiff to amend the complaint only in two limited respects -- to afford Raymond Stacey an opportunity to demonstrate standing, and to specify the parties to whom he refers with respect to the remaining claims. See Opinion dated April 19, 2006 at 9, 11.

Contrary to Plaintiff's contention, the Court of Appeals resolved the various arguments raised in motions to dismiss on the merits. In all other respects, the decision whether or not to permit amendment to the complaint is within the discretion of this Court and leave to amend must be sought by filing an appropriate motion. Fed. R. Civ. P. 15(a).

Plaintiff's proposed Amended Complaint fails to abide by this Court's Orders and is not consistent with the Court of Appeals' Opinion. Plaintiffs have not sought leave to amend. Indeed, Plaintiffs boldly proclaim that they intend to pursue claims whether or not those parties are listed as defendants in the recast caption. Motion for Reconsideration ¶ 15. Plaintiffs' approach and action in filing the proposed Amended Complaint are totally without authorization. Nevertheless, the Court permitted Plaintiff to file another amended complaint, limited strictly to the claims that had been authorized by the Court of Appeals.

On September 15, 2006, Plaintiff filed a new Amended Complaint (Document No. 128) against "caption defendants" (the "Amended Complaint"). This document is the operative complaint in this case. Also on September 15, 2006, Plaintiff filed a motion for leave to file a Second Amended Complaint to reinstate Penn Power and Ohio Edison as defendants. At the same time, Plaintiff filed a Notice of Appeal of the September 6, 2006 Order, which had the effect of depriving this Court of jurisdiction pending return of the mandate from the Court of Appeals. On December 4, 2007, the Court of Appeals dismissed Plaintiff's appeal as improper and ...


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