United States District Court, M.D. Pennsylvania
MEMORANDUM AND ORDER
C. CARLSON, UNITED STATES MAGISTRATE JUDGE
background of this order is as follows:
plaintiff, who was initially proceeding pro se,
commenced this action by a complaint. (Doc. 1.) The
defendants then filed a motion to dismiss the pro se
complaint. (Doc. 12.) In response, the plaintiff moved to
file an amended complaint. (Doc. 13.) We granted this motion
and dismissed the defendant's motion to dismiss as moot
in light of the filing of the amended complaint. (Doc. 15.)
The defendants then filed a second motion to dismiss. (Doc.
17.) This second motion to dismiss inspired another effort by
the plaintiff to further amend the amended complaint to
address these exhaustion questions. (Doc. 18.) We permitted
Andrews to file this amended complaint, and the defendants
moved to dismiss this, the plaintiff's second amended
complaint. (Doc.20.) Andrews did not respond to this motion
to dismiss. Instead, she filed yet another motion to amend
her complaint. (Doc. 22.) We permitted this one, final
amendment of the complaint and granted this motion but
advised the plaintiff in clear and precise terms that:
“given these three amendments of this
complaint, no further leave to amend will be granted, absent
defendants then moved to dismiss this third amended
complaint. (Doc. 25.) Andrews, in turn, filed a fourth motion
to amend this complaint. (Doc. 28.) The motion was
unaccompanied by any brief which would have provided an
explanation regarding how this motion complied with our
instruction that not further amendment would be permitted
absent compelling circumstances, and the defendants have
filed an opposition to this motion to amend for yet another
motion to amend will be denied without prejudice to the
plaintiff responding to the motion to dismiss by arguing that
leave to amend should be granted if the motion to dismiss is
outset, we note that the plaintiff has failed to file a brief
in support of this motion. This failure to file a brief has
consequences for the plaintiff since we are entitled to deem
the plaintiff to have withdrawn a motion when he fails to
properly support that motion by filing a brief in a timely
fashion. See, e.g., Salkeld v. Tennis, 248 Fed.Appx.
341 (3d Cir.2007) (affirming dismissal of motion under Local
Rule 7.5); Booze v. Wetzel, 1:12-CV-1307, 2012 WL
6137561 (M.D. Pa. Nov. 16, 2012) report and
recommendation adopted, 1:CV-12-1307, 2012 WL 6138315
(M.D. Pa. Dec. 11, 2012); Breslin v. Dickinson Twp.,
1:09BCVB1396, 2011 WL 1577840 (M.D.Pa. Apr.26, 2011)
Prinkey v. Tennis, No. 09B52, 2010 WL 4683757
(M.D.Pa. Nov.10, 2010) (dismissal under Local Rule 7.5);
Griffin v. Lackawanna County Prison Board, No.
07B1683, 2008 WL 4533685 (M.D.Pa.Oct.6, 2008) (dismissal
under Local Rule 7.6).
of pleadings is governed by Tule 15 of the Federal Rules of
Civil procedure. Fed.R.Civ.P. 15(a). The rules provide that
courts should freely grant leave to amend ''when
justice so requires, '' id., and courts take
a liberal approach to granting leave to amend pleadings,
observing that leave should be granted freely in order to
ensure that a particular claim is decided on ''the
merits rather than on technicalities.'' Dole v.
Arco Chem. Co., 921 F.2d 484, 486-87 (3d Cir. 1990).
Nevertheless, a district court retains discretion in deciding
whether to grant or deny a party's request to amend its
pleading, Shane v. Fauver, 213 F.3d 113, 115 (3d
Cir. 2000, and may deny a motion for leave to amend if the
plaintiff's delay in seeking amendment is undue,
motivated by bad faith, prejudicial to the opposing party, or
where amendment would be futile. Foman v. Davis, 371
U.S. 178, 182 (1962).
point we are confronted with a fourth attempt to amend the
complaint submitted by a plaintiff who has neglected to
address the failure to timely amend this pleading on any of
the prior occasions when leave to amend was granted. This
fourth motion to amend, if granted, would delay yet again the
consideration of a motion to dismiss, and in our view result
in undue delay in addressing the motion to dismiss.
Therefore, we will DENY this motion to amend. However, we
deny this motion without prejudice to the plaintiff
responding to the motion to dismiss by arguing that leave to
amend should be granted if the motion to dismiss is granted.
appropriate order follows.
this 6th day of August 2019, IT IS ORDERED that
the plaintiff's motion to amend, (Doc. 28) which is
unaccompanied by any brief as required by the rules of this
court, is DENIED without prejudice to the plaintiff
responding to the motion to dismiss by ...