DiMartino v. Pulice et al

Filing 22

ORDER: For the reasons set forth in the attached order, the Motion to Strike Amended Complaint (Doc. No. 20 ) is hereby GRANTED, and the docket shall reflect that the defendants added by the amended complaint (Doc. No. 19 ) are no longer defendants. It is so ordered. Signed by Judge Alvin W. Thompson on 3/10/17. (Rafferty, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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TERRY J. DIMARTINO,
:
:
Plaintiff,
:
:
v.
:
:
ERIN PULICE, SARA HAMILTON,
:
UNITED STATES OF AMERICA,
:
INTERNAL REVENUE SERVICE,
:
JOHN KOSKINEN, JASON M. SCHEFF :
and ALVIN W. THOMPSON,
:
:
Defendants.
:
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CRIM. NO. 3:16cv378(AWT)

ORDER RE MOTION TO STRIKE AMENDED COMPLAINT
On July 13, 2016, plaintiff Terry DiMartino (“DiMartino”)
filed an amended complaint which added as new defendants the
Internal Revenue Service, IRS Commissioner John Koskinen, and
the undersigned.
defendants.

It alleges 21 claims for relief against all

Defendants Erin Pulice, Jason M. Scheff and Sara

Hamilton move to strike the amended complaint.
Federal Rule of Civil Procedure 15 provides that a party
may amend his pleading once as a matter of course within 21 days
after it is served, or within 21 days after service of a
responsive pleading.

“In all other cases, a party may amend its

pleading only with the opposing party’s written consent or the
court’s leave.
so requires.”

The court should freely give leave when justice
Fed. R. Civ. P. 15(a)(2).

“Leave to amend need

not be granted, however, where the proposed amendment would be
‘futil[e].’”

Advanced Magnetics, Inc. v. Bayfront Partners,

Inc., 106 F.3d 11, 18 (2d Cir. 1997) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962) (alteration in original).

“A motion to

amend is futile and may be denied on that basis ‘[w]here the
amended portion of the complaint would fail to state a cause of
action.’”

Schaghticoke Tribal Nation v. Norton, No. 3:06CV81

PCD, 2007 WL 867987, at *11 (D. Conn. Mar. 19, 2007) (quoting
Parker v. Columbia Pictures Indus., 204 F.3d 326, 339 (2d Cir.
2000) (alteration in original).

“A party opposing a motion for

leave to amend has the burden of proving that such amendment is
futile.”

Id.

In considering whether to allow an amended

complaint, “the court should not consider the merits of a claim
or defense on a motion to amend unless the amendment is clearly
frivolous or legally insufficient on its face.”
and quotation marks omitted).

Id. (citation

“Where it appears that granting

leave to amend is unlikely to be productive, . . . it is not an
abuse of discretion to deny leave to amend.”

Ruffolo v.

Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).

“[L]eave

to amend a pleading may only be given when factors such as undue
delay or undue prejudice to the opposing party are absent.”

SCS

Commc'ns, Inc. v. Herrick Co., 360 F.3d 329, 345 (2d Cir. 2004)
(emphasis in original).

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Here, the amended complaint was filed more than 21 days
after the defendants filed their motion to dismiss.

The

plaintiff did not have the opposing party’s consent or the
court’s leave to file the amended complaint.
The defendants contend that “In his amended complaint,
DiMartino fails to state any plausible claim for relief, and
neglects to provide any allegations of fact that would support a
civil claim against any of the defendants.”

The court agrees.

“In order to be deemed not futile, [the plaintiff’s]
proposed Complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face.“

McLaughlin v. CitiMortgage, Inc., No. 3:09CV1762

(MRK), 2010 WL 3037810, at *3 (D. Conn. Aug. 4, 2010) (internal
citation and quotation marks omitted).

“A pro se litigant

should generally be granted leave to amend [his] complaint at
least once, when a liberal reading of the complaint gives any
indication that a valid claim might be stated, though a district
court need not grant leave to amend where an amendment would be
futile.”

Cote v. Town of St. Albans, 444 F. App'x 499, 499–500

(2d Cir. 2011) (internal citations and quotation marks omitted).
While the court must “accept as true all of the factual
allegations in the Complaint, it is not required to accept
‘legal conclusions and threadbare recitals of the elements of a
cause of action’ that are supported only by conclusory
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statements.”

McLaughlin, 2010 WL 3037810, at *3 (quoting Harris

v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).

Here, the amended

complaint does not include any specific factual allegations as
to any of the defendants, but rather relies on conclusory
allegations of the defendants’ purported wrongdoing.
Therefore, the defendants’ Motion to Strike Amended
Complaint (Doc. No. 19) is hereby GRANTED, and the docket shall
reflect that the defendants added by the amended complaint are
no longer defendants.
It is so ordered.
Signed this 10th day of March, 2017, at Hartford, Connecticut.

___/s/ AWT____________________
Alvin W. Thompson
United States District Judge

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