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Perez v. Borough of Berwick

December 10, 2009

ROSA PEREZ, ET AL., PLAINTIFFS,
v.
BOROUGH OF BERWICK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge McClure

MEMORANDUM

I. PROCEDURAL BACKGROUND

The plaintiffs in this action are Rosa Perez and Elvis Perez as individuals and Rosa Perez on behalf of her two minor children, William and Larry Perez. On December 19, 2007, the plaintiffs filed a complaint against the Berwick Police Department, the Borough of Berwick, Berwick Borough police officer Heather Rood, ten unknown agents of the Bureau of Immigration and Customs Enforcement ("ICE"), and five unknown agents of the Berwick Police Department. (Rec. Doc. No. 1). On February 12, 2008, the Berwick Police Department, the Borough of Berwick, and Heather Rood filed an answer to the complaint. (Rec. Doc. No. 12).

On September 2, 2008, the plaintiffs filed an amended complaint, in which they named as additional defendants ICE special agents Patrick Cawley, Kimberly Mullings, and David Christino ("ICE Defendants"). (Rec. Doc. No. 13). In their amended complaint, the plaintiffs also added as defendants Columbia County and Berwick Borough police officers Troy Maneval, Roger Bodwalk, Steve Levan, Greg Martin, and Christopher Wilson. Id. at 3-4. Also added as defendants were John Does 1 and 2, who were believed to be ICE agents, and Columbia County parole officer Tiffany Panetta. The Berwick Police Department was terminated as a party on September 3, 2008. In addition, the ten unknown agents of the ICE and the five unknown agents of the Berwick Police Department were terminated by this Court on September 4, 2008, as they were not listed on the amended complaint.

On January 19, 2009, the plaintiffs filed a motion for extension of time to effect service on defendants Cawley, Mullings, and Christino. (Rec. Doc. No. 36). This Court granted the plaintiffs' motion to extend time by an order dated January 20, 2009, which extended the deadline to effect service to April 30, 2009. On March 22, 2009, the plaintiffs filed three affidavits of service of the summons and amended complaint with respect to Cawley (Rec. Doc. No. 38), Mullings (Rec. Doc. No. 39), and Christino (Rec. Doc. No. 40). In each affidavit, a James B. Stewart attests that he effected service of the summons and amended complaint by personally delivering a copy to each of the three ICE Defendants.

On November 10, 2008, Maneval, Bodwalk, Martin, Wilson, Levan, Rood, and the Borough of Berwick filed an answer to the plaintiffs' amended complaint. (Rec. Doc. No. 28). Also on November 10, 2008, Columbia County and Panetta filed a motion to dismiss the plaintiffs' amended complaint. (Rec. Doc. No. 26). After the motion was fully briefed, on April 28, 2009, this Court denied the motion to dismiss of both Columbia County and Panetta. (Rec. Doc. No. 41). We also granted the plaintiffs leave to amend their complaint regarding their Monell claim against Columbia County.*fn1 Id.

On May 12, 2009, the plaintiffs filed a second amended complaint against all defendants. (Rec. Doc. No. 48). Defendants Columbia County and Panetta filed an answer and affirmative defenses to the second amended complaint on May 28, 2009. (Rec. Doc. No. 50). On June 4, 2009, defendants Maneval, Bodwalk, Martin, Wilson, Levan, the Borough of Berwick, and Rood filed an answer to the plaintiffs' second amended complaint. (Rec. Doc. No. 52).

On September 11, 2009, the ICE Defendants filed a Motion to Dismiss Second Amended Complaint or Alternatively Motion for Summary Judgment. (Rec. Doc. No. 59). With this motion, defendants Mullings, Christino, and Cawley also filed the requisite statement of facts and brief in support. (Rec. Doc. Nos. 60 and 61). On October 8, 2009, the plaintiffs filed their own statement of facts (Rec. Doc. No. 65) as well as their brief in opposition to the ICE Defendants' Motion to Dismiss Second Amended Complaint or Alternatively Motion for Summary Judgment. (Rec. Doc. No. 66). The ICE Defendants filed a reply brief on October 19, 2009. (Rec. Doc. No. 67).

The ICE Defendants' Motion to Dismiss Second Amended Complaint or Alternatively Motion for Summary Judgment is now ripe for disposition.

Now, for the following reasons, we will deny the ICE Defendants' Motion to Dismiss Second Amended Complaint or Alternatively Motion for Summary Judgment.

II. STANDARDS OF REVIEW

A. Motion to Dismiss Standard

The ICE Defendants have filed a motion that seeks, in part, the dismissal of the counts against them pursuant to Federal Rule of Civil Procedure 12(b)(6). Under Fed. R. Civ. P. 12(b)(6), a complaint will be dismissed if it fails to state a claim upon which relief can be granted. However, "[i]f, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." See Fed. R. Civ. P. 12(d).

The ICE Defendants have presented no matters outside the pleadings that have not been excluded by this Court, and the plaintiffs have had a reasonable opportunity to offer all material pertinent to the motion. See id. As such, we will consider the ICE Defendants' Motion to Dismiss Second Amended Complaint or ...


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