The opinion of the court was delivered by: (Judge Conner)
Presently before the court is the report (Doc. 44) of Magistrate Judge William T. Prince recommending that the court grant the motion to dismiss (Doc. 34) filed by defendants Northern York County Regional Police Department and Mark E. Baker. Also before the court is defendants' motion to strike (Doc. 54) a reply brief (Doc. 53) filed by plaintiff Cesar Galligani ("Galligani") opposing the report and recommendation ("R&R"). For the reasons that follow, the court will adopt the magistrate's R&R ( Doc. 44), grant the motion to dismiss (Doc. 34) and grant defendants' motion to strike (Doc. 54).
On May 26, 2010, Galligani instituted the above-captioned litigation
against Northern York County Regional Police Department ("NYCRPD"),
Officer Mark E. Baker ("Officer Baker"), the District Attorney's
Office of York County and H. Stanley Rebert, District Attorney of York
County. (Doc. 1). Galligani asserted three claims in his complaint:
(1) Fourth Amendment malicious prosecution, pursuant to
42 U.S.C. § 1983; (2) conspiracy to maliciously prosecute, pursuant to
42 U.S.C. § 1985; and (3) negligence. (Id.) Galligani filed an amended
complaint on November 16, 2010, reasserting the three claims but
naming only NYCRPD and Officer Baker as defendants. (Doc. 32). The
remaining defendants filed a motion to dismiss the amended complaint
(Doc. 34), and the court referred the motion to Magistrate Judge
Prince for the preparation of a report and recommendation. (See Doc.
43). Judge Prince issued his R&R on April 22, 2011. (Doc. 44). After
receiving an extension of time (see Doc. 46), Galligani filed
objections to the R&R on June 7, 2011. (Docs. 49, 50). Defendants
filed a response to Galligani's objections on June 8, 2011. (Docs. 51,
52). On July 21, 2011, Galligani filed a reply brief to defendants'
response. (Doc. 53). This reply brief prompted the defendants to file
a motion to strike (Doc. 54) the reply brief as untimely.
The court will address the motion to strike first. (See Doc. 54). Local Rules for the Middle District of Pennsylvania dictate that a moving party may file a reply brief within fourteen (14) days after service of the opposing party's brief in opposition. L.R. 7.7 ("A brief in reply to matters argued in a brief in opposition may be filed by the moving party within fourteen (14) days after service of the brief in opposition. No further briefs may be filed without leave of court."). Defendants assert that the reply brief filed by plaintiff Galligani on July 21, 2011, (Doc. 53 (docketed with the court as a brief in opposition to the report and recommendation)), is untimely and should be stricken from the record as Galligani neither sought the defendants' concurrence for the late filing nor leave of court.
The court will grant the motion. Defendants filed their brief in opposition to Galligani's objections to the R&R on June 8, 2011. (See Doc. 52). Per Local Rule, Galligani's reply brief was due by June 22, 2011. Galligani filed his reply brief on July 21, 2011, approximately one month after the filing deadline (see Doc. 53), without any explanation for the delay and sans request for leave of court to file the out-of-time brief. The court will therefore grant the motion to strike and direct the Clerk of Court to strike the reply brief (Doc. 53) from the record.
The court turns next to Galligani's objections to the R&R. Where objections to a magistrate judge's report and recommendation are filed, the court must perform a de novo review of the contested portions of the report. Supinski v. United Parcel Serv., Civ. A. No. 06-0793, 2009 WL 113796, at *3 (M.D. Pa. Jan. 16, 2009) (citing Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)(c)). "In this regard, Local Rule of Court 72.3 requires 'written objections which . . . specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for those objections.'" Id. (citing Shields v. Astrue, Civ. A. No. 07-417, 2008 WL 4186951, at *6 (M.D. Pa. Sept. 8, 2008)).
The court has reviewed the R&R and Galligani's objections thereto and
finds the analysis of Judge Prince to be thorough and well-reasoned.
objections are simply confused and without merit.*fn1
In both his brief in opposition to the motion to dismiss and his
objections to the R&R, Galligani raises new theories of liability and
causes of action not raised in his amended complaint.*fn2
However, a complaint is not amended by the arguments
proffered in a brief in opposition to a motion to dismiss. See Com. of
Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.
1988) ('[I]t is axiomatic that the complaint may not be amended by the
briefs in opposition to a motion to dismiss.' (quoting Car Carriers,
Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984))). At the
motion to dismiss stage, the court must look to the allegations
contained in the complaint and determine whether the plaintiff has
stated a plausible claim for relief. Ashcroft v. Iqbal, ---U.S. ---,
129 S. Ct. 1937, 1950 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556 (2007)); Twombly, 550 U.S. at 555 (requiring
plaintiffs to allege facts sufficient to "raise a right to relief
above the speculative level"). The court finds that the magistrate
judge's R&R squarely addresses Galligani's objections (save
for newly asserted theories of liability, which the court need not
consider), and will adopt it in full.
The R&R does not, however, indicate whether the court should grant Galligani leave to file a second amended complaint. Galligani has already amended his complaint once. (See Doc. 32). Nonetheless, leave to amend should be permitted unless amendment would be inequitable or fail to cure the deficiency. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). The court will dismiss with prejudice the § 1985 conspiracy count and the negligence count in the amended complaint, due to Galligani's failure to oppose their dismissal in either his brief in opposition to the motion to dismiss or in his objections to the R&R. It would be inequitable to allow Galligani to reassert these claims in an second amended complaint when he has not opposed their dismissal up to this point. See Grayson, 293 F.3d at 108 (listing inequity as a basis for denying a plaintiff leave to amend). With respect to the Fourth Amendment malicious prosecution claim, however, there is no indication from the Magistrate Judge or the defendants that Galligani would be unable to cure the deficiencies in his complaint by putting forth additional factual allegations. The court will therefore grant Galligani leave to file a second amended complaint to assert a Fourth Amendment malicious prosecution claim.
The court will adopt the magistrate judge's R&R (Doc. 44), grant the defendants' motions to dismiss (Doc. 34) and to strike (Doc. 54), and grant Galligani leave to file a second amended complaint with respect to his malicious prosecution claim.
An appropriate order is attached.
CHRISTOPHER C. CONNER United States ...