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Southerton v. Borough of Honesdale

United States District Court, M.D. Pennsylvania

May 18, 2018

RICHARD SOUTHERTON, Plaintiff,
v.
BOROUGH OF HONESDALE, et al., Defendants.

          MEMORANDUM

          A. RICHARD CAPUTO UNITED STATES DISTRICT JUDGE

         Presently before me is the Motion to Strike the Breach of Contract Claim in the Third Amended Complaint (Doc. 52) filed by Defendants Borough of Honesdale, Melody Robinson Hamill, Jeremy Ebert, Michael Augello, Chris Murray, and Michael Dux (“Defendants”) and the Motion for Leave to File a Third Amended Complaint (Doc. 55) filed by Plaintiff Richard Southerton (“Plaintiff”). On February 23, 2018, after Plaintiff twice amended his complaint, Defendants' motion to dismiss the Second Amended Complaint was granted in part and denied in part, but Plaintiff was given leave to file a further amended complaint to properly plead his First Amendment Petition Clause cause of action. Thereafter, Plaintiff filed the Third Amended Complaint containing, for the first time, a state law breach of contract claim. Defendants have now moved to strike Plaintiff's breach of contract claim from the Third Amended Complaint, to which Plaintiff responded by submitting a motion for leave to amend to permit him to pursue such a claim. Because Plaintiff does not present a viable state law breach of contract cause of action, the motion for leave to amend will be denied and Defendants' motion to strike the breach of contract claim will be granted.

         I. Background

         Plaintiff commenced this action against Defendants on January 30, 2017 asserting claims against Defendants for First Amendment retaliation. (See Doc. 1, generally). Plaintiff filed an Amended Complaint on August 28, 2017 asserting the same causes of action. (See Doc. 29, generally). Plaintiff subsequently submitted a Second Amended Complaint on November 8, 2017, which included the causes of action from his prior pleadings as well as claims under the Pennsylvania Wage Payment and Collection Law, the Fair Labor Standards Act, and the Petition Clause of the First Amendment. (See Doc. 37, generally). Defendants moved to dismiss the Second Amended Complaint in its entirety. (See Doc. 39, generally).

         On February 23, 2018, I granted in part and denied in part Defendants' motion to dismiss the Second Amended Complaint. (See Docs. 50-51, generally). More particularly, the Wage Payment and Collection Law claim was dismissed with prejudice, while the First Amendment Petition Clause claim was dismissed without prejudice. (See id.). In my Order dismissing the Petition Clause claim, I stated: “Plaintiff has twenty-one (21) days from the date of entry of this Order to file a further amended complaint to properly plead his First Amendment Petition Clause retaliation claim (Count V); otherwise, that claim will be dismissed with prejudice.” (Doc. 51, ¶ 3 (emphasis in original)).

         Plaintiff timely submitted a Third Amended Complaint. (See Doc. 52, generally). Therein, Plaintiff, for the first time, set forth a breach of contract cause of action. (See Doc. 52, Count V). Defendants moved to strike that cause of action, (see Doc. 53, generally), arguing that Plaintiff improperly raised this claim without leave of Court and following the expiration of the deadlines to amend his pleading and complete discovery. (See Doc. 54, 4).

         Plaintiff opposed the motion to strike, (see Doc. 59, generally), and also filed a motion for leave to file a Third Amended Complaint seeking permission to proceed with his breach of contract cause of action. (See Doc. 55, generally). Defendants opposed the motion for leave to amend on, among other grounds, that the proposed amendment would be futile because Plaintiff's breach of contract claim fails as a matter of law. (See Doc. 60, 7-8). Plaintiff disputes this point. (See Doc. 61, 2). The motions to strike and for leave to amend are fully briefed and ripe for disposition.

         II. Discussion

         The pending motions implicate Rules 12(f) and 15(a) of the Federal Rules of Civil Procedure. Rule 12(f), which Defendants rely upon, permits a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Fed.R.Civ.P. 12(f). Rule 15(a), upon which Plaintiff's motion is premised, provides:

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Fed. R. Civ. P. 15(a)(1). It is uncontested that amendment as a matter of course does not apply here. Thus, Plaintiff may only amend under Rule 15(a)(2). Under that subsection, while leave should be given freely, district courts have the discretion to deny a motion for leave to amend where it is apparent from the record that: (1) there is undue delay, bad faith or dilatory motive; (2) the amendment would be futile; or (3) the amendment would prejudice the other party. See Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000). Amendment is futile “if the ...


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