The opinion of the court was delivered by: William W. Caldwell United States District Judge
We are considering a motion to alter or amend judgment filed by Plaintiff,
Gas Drilling Awareness Coalition ("GDAC"). On September 10, 2010, Plaintiff filed the instant action alleging violations of its rights under the First Amendment, the Due Process Clause of the Fourteenth Amendment, and violation of Article I, Section 20 of the Pennsylvania Constitution. We dismissed the Due Process and Pennsylvania constitutional claims. Plaintiff filed a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e), requesting leave to amend the complaint to add a request for nominal damages and state law claims for defamation and conspiracy.
The case involves a surveillance program in which the Institute of Terrorism
Research and Response (" ITRR") identified possible threats to
critical infrastructure, and reported them to Powers, the previous
Director of the Pennsylvania Emergency
Management Agency's ("PEMA") Office of Homeland Security.*fn1
Plaintiff's complaint alleges that ITRR identified GDAC as a
potential threat and began surveillance of the organization, compiling
information in tri-weekly bulletins which were provided to law
enforcement agencies and "private third party individuals and
entities." (doc. 1, ¶ 74.)
Powers moved to dismiss the complaint (doc. 12) on November 15, 2010 and the remaining Defendants moved to dismiss it (doc. 14) on November 18, 2010. On January 21, 2011, Plaintiff filed an amended complaint (doc. 24) without seeking leave of court as required by Federal Rule of Civil Procedure 15(a)(2). On March 3, 2011, Powers filed a motion to dismiss or strike Plaintiff's amended complaint (doc. 32). The following day, Defendants ITRR and Perelman filed a motion to dismiss the amended complaint (doc. 34). On July 29, 2011, we struck Plaintiff's amended complaint for failure to follow Rule 15 and ordered Plaintiff to respond to the original motions to dismiss.
On December 12, 2011, we dismissed ITRR and Perelman as parties, because they were not state actors for the purposes of 42 U.S.C. § 1983. We also dismissed Plaintiff's request for nominal damages and its claims under the Fourteenth Amendment and the Pennsylvania Constitution.Plaintiff now seeks to add a request for nominal damages and state law claims for defamation and conspiracy.
Plaintiff requests that we alter the December 12, 2011 Memorandum and Order, and allow it to amend its complaint. A party may file a motion to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e) within twenty-eight days after the entry of judgment. "[W]here a timely motion to amend judgment is filed under Rule 59(e), the Rule 15 and 59 inquiries turn on the same factors." Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984).
Under Rule 15(a)(2), a plaintiff requires leave of court to file an amended complaint, and we "should freely give leave when justice so requires." FED. R. CIV. P. 15(a)(2). A district court may deny leave if "(1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would ...