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Harty v. Kimco KML Trust

United States District Court, E.D. Pennsylvania

July 27, 2017



          O'NEILL, J.

         On February 2, 2017, plaintiff Owen Harty filed a complaint against defendant Kimco KML Trust seeking injunctive and other relief and attorney's fees and costs pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181, et seq. Dkt. No. 1. In his complaint, plaintiff, who “is paralyzed from the waist down and is bound to ambulate in a wheelchair, ” alleged violations of the ADA at “Center Square Plaza, 1301 W. Skippack Pike, Blue Bell, PA 19422.” Dkt. No. 1 at ECF p. 1 at ¶¶ 1-2. He asserts that he

has visited the property which forms the basis of this lawsuit and plans to return to the property to avail himself of the goods and services offered to the public at the property, and to determine whether the property has been made ADA compliant. Plaintiff has encountered architectural barriers at the subject property which discriminate against him on the basis of his disability and have endangered his safety. These barriers also prevent Plaintiff from returning to the property to enjoy the goods and services available to the public. Plaintiff is also a tester for the purpose of asserting his civil rights and monitoring, ensuring, and determining whether places of public accommodation are in compliance with the ADA.

Dkt. No. 1 at ECF p. 2, ¶ 5; see also Dkt. No. 9-1 at ECF p. 2, ¶ 5 (same). Plaintiff alleges that “it would be a futile gesture to attempt to visit” the subject property “if he wishes to do so free of discrimination.” Dkt. No. 1 at ECF p. 2, ¶ 6; see also Dkt. No. 9-1 at ECF p. 2-3, ¶ 6.

         Also on February 2, 2017, the Clerk of Court provided plaintiff with a summons for Kimco. See unnumbered docket entry after Dkt. No. 1. Under Rule 4(m) of the Federal Rules of Civil Procedure, plaintiff was required to effect service of the summons and the complaint on Kimco within 90 days of filing the complaint, i.e. by May 3, 2017. See Fed.R.Civ.P. 4(m). However, plaintiff did not serve Kimco with the summons and complaint until May 8, 2017. See Dkt. No. 3. Thus, on May 15, 2017, Kimco filed a motion seeking to dismiss this action without prejudice, raising plaintiff's failure to timely serve Kimco with a copy of the Summons or Complaint within the 90-day time period required by that Rule 4(m) of the Federal Rules of Civil Procedure. Dkt. No. 2. Thereafter, on May 18, 2017, plaintiff filed an affidavit of service with the Court reflecting the May 8 date of service. Dkt. No. 3.

         Rule 4(m) “require[s] a court to extend time if good cause is shown . . . .” Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995); see Fed.R.Civ.P. 4(m) (“if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period”). However, plaintiff filed nothing with his affidavit of service that would have explained why he had good cause for his failure to timely serve Kimco with the complaint. The Court considered the affidavit of service alone to be insufficient to constitute a timely response to Kimco's motion to dismiss under Rule 7.1(c) of the Local Rules of Civil Procedure (i.e., a response filed on or before May 29, 2017). See E.D. Pa. Local R. Civ. P. 7.1(c) (“Unless the Court directs otherwise, any party opposing [a] motion shall serve a brief in opposition together with such answer or other response that may be appropriate within fourteen (14) days after service of the motion and supporting brief.”). Thus, on May 30, 2017, the Court ordered plaintiff to show cause why this action should not be dismissed for lack of timely service. Dkt. No. 4.

         Then, on June 9, 2017, rather than specifically respond to the Order to Show Cause, plaintiff filed an untimely[1] response and affidavit in opposition to Kimco's motion to dismiss. Dkt. No. 5 and Dkt. No. 6. In the response, plaintiff argued, inter alia, that he could

demonstrate good cause for the slight delay in filing [sic] his complaint because: (1) his attorneys contacted Defendant's attorneys well before the expiration of the 90-day time period; (2) provided them with notice of the action; and (3) attempted to offer Defendant an opportunity, in good faith to try to resolve this matter without unnecessary litigation as it has been able to do in other, similar cases in Pennsylvania with Defendant's counsel.

Dkt. No. 5 at ECF p. 1-2.

         Thereafter, and before the Court had an opportunity to consider plaintiff's June 9 filing, plaintiff filed an amended complaint on June 19, 2017. Dkt. No. 7. Plaintiff's purported amended complaint, which added Route 73 Associates to the caption, and identified Route 73 Associates as a “Pennsylvania Limited Partnership, ” id. at ECF p. 1, did not appear to be compliant with the requirements of Rule 15 of the Federal Rules of Civil Procedure, as it was filed more than 21 days after Kimco filed its motion to dismiss[2] and was filed without leave of court or proof of Kimco's written consent.[3] Accordingly, the Court ordered the Clerk of Court to strike the “Amended Complaint” docketed at docket Number 7 and granted plaintiff leave to file a motion on or before July 6, 2017 seeking leave to file an amended complaint pursuant to Rule 15(a)(2). Dkt. No. 8.

         On June 30, 2017, plaintiff filed a “consent motion for leave to amend complaint & amendment of caption.” Dkt. No. 9. For the reasons that follow, the Court will grant plaintiff's motion for leave to amend and will deny Kimco's motion to dismiss pursuant to Rule 4(m).

         I. Motion for Leave to Amend

         Plaintiff seeks to amend his complaint to add Route 73 Associates as a defendant pursuant to Rule 15 of the Federal Rules of Civil Procedure. Dkt. No. 9. He asserts that Kimco has provided written consent to the amendment (although plaintiff has not attached proof of such consent).[4] Id. at ECF p. 2, ¶ 9. Plaintiff's motion explains that on June 15, 2017, counsel for Kimco advised him that Kimco “owned a portion of the subject property, but did not own the entire property” and that he was informed that “some of the architectural barriers alleged by Plaintiff are located on the portion of the subject property that is not owned by” Kimco. Id. at ¶ 5. As a result, plaintiff contends that with further research “he was able to determine that Route 73 Associates, a Pennsylvania Limited Partnership, owned the portion of the subject property that is not owned by Defendant Kimco.” Id. at ¶ 6. Plaintiff thus asks that he be granted leave to file and serve the amended complaint which names Route 73 Associates as a defendant. Id. at ECF p. 3.

         Rule 15(a)(2) provides that “[t]he court should freely give leave [to amend a complaint] when justice so requires.” Fed.R.Civ.P. 15(a)(2); see Foman v. Davis, 371 U.S. 178, 182 (1962) (“[T]his mandate is to be heeded.”). Nonetheless, a district court may deny leave to amend a complaint where “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.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000); see also Arthur v. ...

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