United States District Court, E.D. Pennsylvania
JOSEPH W. LONG, JR
BOROUGH OF DOWNINGTOWN, et al.
MEMORANDUM AND ORDER
ELIZABETH T. HEY, Magistrate Judge.
In this civil rights action, Plaintiff brings claims of false arrest, excessive force, unlawful search and seizure, malicious prosecution, and related state law claims, as well as conspiracy, against the Borough of Downingtown, Police Chief James McGowan, and Patrol Officer (formerly Detective) Pamela Fentner (collectively "Borough Defendants"), and Federal Emergency Management Agency ("FEMA") employees Bruce Hill and Scott Duffey. Presently before the court are three motions to which Plaintiff has failed to respond: (1) Defendant Hill's motion to dismiss the Third Amended Complaint (Doc. 36), (2) Borough Defendants' motion to dismiss Plaintiff's Third Amended Complaint (Doc. 37), and (3) Borough Defendants' motion for sanctions (Doc. 38). In addition, Borough Defendants have filed a motion for dismissal for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Doc. 40. For the reasons discussed below, the motions to dismiss will be granted as unopposed, the motion for sanctions will be denied, and the motion for dismissal for failure to prosecute will be dismissed without prejudice as moot.
I. PROCEDURAL HISTORY
As more fully set forth in my memorandum addressing the Borough Defendants' prior motion to dismiss, Plaintiff previously filed an Amended Complaint in this matter asserting four causes of action. The First Cause of Action sought relief against the individual and municipal defendants pursuant to 42 U.S.C. § 1983 arising from Defendants' actions, committed under color of state law, which allegedly deprived Plaintiff "of his right to be free from unreasonable and excessive force, and unlawful search and seizure, unlawful arrest, malicious prosecution, to be secure in his person and property and to due process of law" in violation of the First, Fourth and Fourteenth Amendments. Amended Compl. (Doc. 2) ¶¶ 19, 21. The Second Cause of Action asserted supplemental state law claims against the individual defendants for assault, battery, false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress. Id . ¶¶ 33. The Third Cause of Action asserted the identical supplemental state law claims, as well as abuse of process, against Fentner individually, and also alleged that Fentner's actions were willful, reckless and malicious. Id . ¶¶ 35-36. The Fourth Cause of Action asserted a civil conspiracy claim against all individual defendants. Id . ¶¶ 38-46.
Borough Defendants moved to dismiss the Amended Complaint for failure to state a claim upon which relief may be granted, see Doc. 10, and in response to the motion, Plaintiff withdrew his federal and state law claims of excessive force and assault and battery, as well as his claims for intentional infliction of emotional distress and abuse of process. See Doc. 21 at 11-13.
By Memorandum and Order dated January 31, 2014, I granted in part and denied in part the Borough Defendants' motion to dismiss the Amended Complaint. See Docs. 29 & 30. I dismissed with prejudice all of the claims Plaintiff had withdrawn, and I dismissed without prejudice several additional claims. Specifically, I dismissed without prejudice all claims against Defendant McGowan, as well as the Monell claim asserted against the Borough; Plaintiff's federal civil rights claims under the First and Fourteenth Amendments, as well as any procedural due process claim under the Fourth Amendment; and the civil conspiracy claim insofar as it alleged a conspiracy between Fentner and FEMA employees Duffey and Hill. I denied the Borough Defendants' motion as to the Fourth Amendment (First Cause of Action), as to supplemental state law claims against Defendant Fentner for false arrest, false imprisonment and malicious prosecution (Second and Third Causes of Action), and as to the claim of civil conspiracy (Fourth Cause of Action) insofar as it alleged a conspiracy between Fentner and Taraschi. Lastly, I granted Plaintiff leave to file a Third Amended Complaint in which he could attempt to cure the deficiencies identified with respect to the claims dismissed without prejudice. See id.
Plaintiff filed his Third Amended Complaint on February 21, 2014, under the title "Complaint, " and re-filed it five days later with the title "Third Amended Complaint." See Docs. 33, 35. Except for the title, both of these filings are absolutely identical to the Amended Complaint which had been the subject of my Memorandum and Order dated January 31, 2014.
On February 28, 2014, Defendant Hill filed a motion to dismiss Plaintiff's Third Amended Complaint seeking the dismissal with prejudice of all claims asserted against Hill under Federal Rule of Civil Procedure 12(b)(2) (lack of personal jurisdiction), 12(b)(5) (insufficient service of process) and 12(b)(6) (failure to state a claim upon which relief can be granted). See Doc. 36. On March 4, 2014, Borough Defendants also filed a motion to dismiss the Third Amended Complaint, arguing that it be dismissed pursuant to Rule 12(b)(6), as well as a motion for sanctions pursuant to Federal Rule of Civil Procedure 11. See Docs. 37 & 38. Plaintiff never responded to these motions and did not seek leave of court for an extension of time to respond. On May 16, 2014, Borough Defendants filed a motion for dismissal for failure to prosecute. See Doc 40. The time in which to respond to this motion has not yet expired.
II. DEFENDANTS' MOTIONS TO DISMISS
A. Borough Defendants' Motion to Dismiss (Doc. 37)
On March 4, 2014, Borough Defendants filed their motion, arguing that because the Third Amended Complaint is identical to the prior Amended Complaint, it "should be dismissed to the same extent as Ordered by the Court on January 31, 2014." Doc. 37-1 at 3. Plaintiff's response was due on or before March 18, 2014. See Local R. Civ. P. 7.1 (c) (requiring a party opposing a non-summary judgment motion to serve his brief in opposition within fourteen days after service of the motion and supporting brief). Plaintiff has not responded to the Borough Defendants' motion, nor has he requested additional time to do so.
I set forth the standards applicable to a motion to dismiss pursuant to Rule 12(b)(6) in the prior Memorandum. However, in that Plaintiff has added nothing whatsoever to the prior version of his complaint, I need not address the sufficiency of his pleading under those standards, as to do so would in essence be a reconsideration of that Memorandum which has not been requested. Under these circumstances, I will grant the Borough Defendants' motion as unopposed. See Local R. Civ. P. 7.1 (c) ("In the absence of a timely response, the motion may be granted as uncontested except as provided under [the Federal Rule of Civil Procedure governing summary judgment motions]."); see also Celestial Cmty. Dev. Corp. v. City of Phila. , 901 F.Supp.2d 566, 578 (E.D. Pa. 2012) (Gardner, J.) ("To put it simply: plaintiff's who fail to brief their opposition to portions of motions to dismiss do so at the risk of having the motions to dismiss granted as uncontested."); Nelson v. DeVry, Inc., Civ. No. 07-4436 , 2009 WL 1213640, *10 (E.D. Pa. April 23, 2009) (Jones, J.) ("Failure to address even part of a motion in a responsive brief may result in that aspect of the motion being treated as unopposed."); Smith v. National Flood Ins. Program of the Fed. Emergency Mgmt. Agency , 156 F.Supp.2d 520, 522 (E.D. Pa. 2001) (Robreno, J.) (granting motion to dismiss as unopposed with respect to claim plaintiff failed to address).
The question next arises whether the claims previously dismissed without prejudice should now be dismissed with prejudice. "Although the grant of a motion to dismiss is usually without prejudice, a District Court may exercise its discretion and refuse leave to amend if such amendment would be futile, particularly when a plaintiff has had multiple opportunities to improve the pleadings." Henry v. City of Allentown, Civ. No. 12-1380, 2013 WL 6409307, *2 (E.D. Pa. Dec. 9, 2013) (Schmehl, J.) (citing In re: Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434-35 (3d Cir. 1997)). Here, except for the title, Plaintiff's Third Amended Complaint is identical to the Amended Complaint which had been the subject of the Borough Defendants' prior motion to dismiss, which I had granted in part and denied in part as previously explained. Thus, Plaintiff made no attempt to address the deficiencies I previously identified as to claims dismissed without prejudice. In fact the Third Amended Complaint even includes all of the claims which Plaintiff had previously withdrawn and which I had therefore dismissed with prejudice. Under the circumstances, I conclude that allowing Plaintiff the opportunity to amend his complaint yet again would be futile. See, e.g., In re New Jersey Title Ins. Litig. , 683 F.3d 451, 462 (3d Cir. 2012) (District Court did not abuse its discretion by dismissing action with prejudice on grounds that leave to amend would be futile); Alston v. Parker , 363 F.3d 229, 235 (3d Cir. 2004) ("[E]ven when a plaintiff does not seek leave to amend, if a complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a ...