The opinion of the court was delivered by: Judge Nora Barry Fischer
On November 23, 2010, Plaintiff Brant Suley ("Plaintiff") commenced this action by filing a Complaint (Docket No. 1) against Plum Borough ("Defendant") pursuant to 42 U.S.C. § 1983. In the first three Counts of his Complaint, Plaintiff alleges that Defendant denied him employment with its police force in a manner in violation with his federal constitutional rights. Id. at 5-10. At Count IV, the Complaint also sets forth a pendent state claim under the Pennsylvania Veterans' Preference Act ("VPA"), 51 Pa. C.S. §§ 7101-04. Id. at 10-11.
Defendant filed a Motion to Dismiss Plaintiff's Complaint (Docket No. ) on February 14, 2011 arguing that the Complaint should be dismissed for failure to state a claim because Plaintiff's has not set forth a constitutional right which has been violated. (Docket No. 7 at 5-9). On March 7, 2011, Plaintiff filed his Response in Opposition to Defendant's Motion to Dismiss (Docket No. 9) wherein his asserts that he has satisfied his burden of pleading a claim in accordance with the liberal pleading requirements identified in Federal Rule of Civil Procedure 8(a).*fn1 (Docket No. 10 at 19-20). In the alternative, Plaintiff requests that the Court grant leave to amend the Complaint to cure it of any deficiencies. Id. at 20.
For the following reasons, Plaintiff's request for leave to amend his Complaint (Docket No. 10 at 20) is GRANTED and Defendant's Motion to Dismiss Plaintiff's Complaint (Docket No. ) is DENIED, without prejudice.
After a responsive pleading has been filed, a party may amend its pleading only "by leave of the court or by written consent of the adverse party." FED. R. CIV. P. 15(a). The FederalRules of Civil Procedure also provide that courts should freely give leave to amend when "justice so requires." FED. R. CIV. P.15(a)(2). Denial of leave to amend is disfavored; and a district judge should grant leave absent a substantial reason to deny. Moore's Federal Practice, 3 ed., vol. 3, 15.14(1); see also Shane v. Fauver, 213 F.3d 113, 115-117 (3d Cir. 2000).
Whether to grant a party leave to amend a pleading is within the sound discretion of the trial judge. Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d Cir. 2003). This Court has discretion to deny such a request if it is apparent from the record that: (1) the moving party has demonstrated undue delay, bad faith or dilatory motives; (2) the amendment would be futile; or (3) the amendment would prejudice the other party. Id. (citing Foman v. Davis, 371 U.S. 178 (1962)).
The longer the delay in seeking to amend, the greater the risk that leave will be denied because of prejudice to the opposing party. American Tel. and Tel. Co. v. Marstan Industries, Inc., 1994 WL 276269, at *3, Civ. Act. No. 93-2961 (E.D. Pa. June 21, 1994) (citing Cornell & Co., Inc. v. Occupational Safety & Health Review Commission, 573 F.2d 820, 823-24 (3d Cir. 1978)). However, most courts hold that undue delay alone, unless unexplained and egregious, is not enough for a court to deny a motion to amend. Id.
"Futility" challenges an amendment's legal sufficiency. Foman, 371 U.S. at 182. In assessing futility, courts apply the same standard of legal sufficiency as applied under Federal Rule of Civil Procedure 12(b)(6). In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997); see also Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) ("Futility is determined by the likelihood that the content of the amendment will survive a renewed motion to dismiss"). The United States Court of Appeals for the Third Circuit has noted that "an amendment would be futile when the complaint, as amended, would fail to state a claim upon which relief could be granted." Id.
Prejudice to the opposing party is "the touchstone for the denial of leave to amend." Cornell and Company, Inc. v. Occupational Safety and Health Review Commission, 573 F.2d 820, 823 (3d Cir. 1978)."Such prejudice ordinarily is not considered to have occurred unless the Motion is made during or after the actual trial." Bowser Cadillac, LLC v. General Motors Corp., 2008 WL 2802523, at *3, Civ. Act. No. 07-1149 (W.D. Pa. July 18, 2008) (quoting Jenn-Air Products Co. v. Penn Ventilator, 283 F.Supp. 591, 594 (E.D.Pa. 1968)).
The Court is not convinced that Plaintiff's delay is motivated by bad faith or dilatory motive. In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1434. Plaintiff has not previously filed an amended complaint in the instant case and the parties have conducted no discovery at this time. Foman, 371 U.S. at 182. It does not appear to the Court that Defendant will be unfairly burdened as a result of granting Plaintiff leave to amend the Complaint. Jenn-Air Products Co. 283 F.Supp. at 594.
Further, Plaintiff's amended complaint would not be futile. The Federal Rules of Civil Procedure are to be construed and administered "to secure the just, speedy, and inexpensive determination of every action and proceeding." FED. R. CIV. P. 1. Plaintiff has indicated in his responsive brief an understanding of the issues. (Docket No. 10 at 4-17) and has also stated that he will be withdrawing the Substantive Due Process claim ...