United States District Court, M.D. Pennsylvania
RICHARD CAPUTO UNITED STATES DISTRICT JUDGE
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.
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,
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)).
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).
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.
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 ...