Duffy v. Kent County Incorporated

Filing 228

MEMORANDUM ORDER-DENYING 216 MOTION for Leave to Amend, DENYING 220 MOTION to Strike, DENYING 217 MOTION for Leave to AMEND. Signed by Judge Sherry R. Fallon on 7/5/2013. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICHAEL DUFFY,
Plaintiff,
V.

KENT COUNTY LEVY COURT,
Defendant.

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Civil Action No. 09-198-SLR-SRF

MEMORANDUM ORDER
At Wilmington this 5th day of July, 2013,
IT IS ORDERED that plaintiff's motions for leave to amend the complaint (D.I. 216, D.l.
217) are DENIED, and defendant's motion to strike (D.I. 220) is DENIED as moot for the
following reasons:
1.

Background. Plaintiff Michael Duffy ("plaintiff') filed this civil action on

March 26, 2009. He appears pro se and has been granted leave to proceed in forma pauperis.
Plaintiff sought emergency injunctive relief to stay a state court order allowing demolition of two
structures located at Kitts Hummock, Delaware, for the assignment of a mediator, and for
compliance with the Americans with Disabilities Act ("ADA") to accommodate him in securing
permits and records. Plaintiff's family cottages were damaged in May 2008 as a result of
flooding. (D.I. 2) The cottages were condemned by defendant and plaintiff was evicted from the
land. Plaintiff, who has Parkinson's Disease, has sought permits to return to his property and to
continue storm recovery, to no avail. He alleges that he sought, but was not provided, an
accommodation from defendant and this prevented him from obtaining the required permits.

2.

Legal Standard. "After amending once or after an answer has been filed, the

plaintiff may amend only with leave of the court or the written consent of the opposing party, but
'leave shall be freely given when justice so requires."' Shane v. Fauver, 213 F.3d 113, 115 (3d
Cir. 2000) (quoting Fed. R. Civ. P. 15(a)). The Third Circuit has adopted a liberal approach to
the amendment of pleadings to ensure that "a particular claim will be decided on the merits rather
than on technicalities." Dole v. Area Chern. Co., 921 F.2d 484, 486-87 (3d Cir. 1990) (citations
omitted)
3.

Leave to amend should be granted absent a showing of"undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of the allowance of the
amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962); see also
Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000). Futility of amendment occurs when the
complaint, as amended, does not state a claim upon which relief can be granted. See In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). Ifthe proposed
amendment "is frivolous or advances a claim or defense that is legally insufficient on its face, the
court may deny leave to amend." Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D.
463, 468 (D.N.J. 1990).
4.

Discussion. Plaintiff's proposed amendments concern the inclusion of additional

defendants. In both proposed amended complaints, plaintiff lists the defendants as "Kent County
DE. Inc. & CEO, Kent County Levy Court INC & CEO." (D.I. 216, D.I. 217) There are no
allegations directed towards any of the defendants plaintiff seeks to add by way of the proposed
amendment. Moreover, the court previously considered and dismissed plaintiff's claims against

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P. Brooks Banta, the president ofthe Kent County Levy Court, in its September 27,2010
Memorandum Opinion. (D.I. 90 at 5-7) For the foregoing reasons, the court finds that plaintiffs
proposed amendment to include additional defendants would be futile.
5.

By way of his proposed amendment (D .I. 216), plaintiff also seeks to include a

cause of action based on alleged violations of his freedom of speech under the First Amendment.
For the following reasons, the court concludes that inclusion of plaintiffs First Amendment
claims would be futile.
6.

A well-pleaded complaint must contain more than mere labels and conclusions.

See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At!. Corp. v. Twombly, 550 U.S. 544 (2007).
The assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the
elements of a cause of action supported by mere conclusory statements." Id at 1949. When
determining whether dismissal is appropriate, the court conducts a two-part analysis. Fowler v.

UPMC Shadyside, 578 F.3d 203,210 (3d Cir. 2009). First, the factual and legal elements of a
claim are separated. Id The court must accept all of the complaint's well-pleaded facts as true,
but may disregard any legal conclusions. Id at 210-11. Second, the court must determine
whether the facts alleged in the complaint are sufficient to show that plaintiff has a "plausible
claim for relief." 1 Id at 211. In other words, the complaint must do more than allege plaintiffs
entitlement to relief; rather it must "show" such an entitlement with its facts. Id "[W]here the

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A claim is facially plausible when its factual content allows the court to draw a reasonable
inference that the defendant is liable for the misconduct alleged. Iqbal, 129 S. Ct. at 1949 (quoting
Twombly, 550 U.S. at 570). The plausibility standard "asks for more than a sheer possibility that a
defendant has acted unlawfully." Id "Where a complaint pleads facts that are 'merely consistent
with' a defendant's liability, it 'stops short of the line between possibility and plausibility of
entitlement to relief."' Id
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well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct,
the complaint has alleged- but it has not shown- that the pleader is entitled to relief." Iqbal, 129
S. Ct. at 1949 (quoting Fed. R. Civ. P. 8(a)(2)).
7.

Plaintiffs proposed amendment fails to identify any specific conduct by defendant

that could be construed as retaliation against plaintiff for the exercise of his First Amendment
rights. The proposed amendment also fails to allege conduct by defendant that prevented
plaintiff from expressing himself. Plaintiffs disenchantment with the judicial process cannot
appropriately be characterized as conduct by the defendant in retaliation for plaintiffs exercise of
his right to free speech. The new theories do not aid plaintiff in his request for relief. Therefore,
amendment would be futile under Fed. R. Civ. P. 15.
8.

For the foregoing reasons, plaintiffs motions for leave to amend the complaint

(D.I. 216, D.I. 217) are DENIED, and defendant's motion to strike (D.I. 220) is DENIED as
moot. The Clerk of Court shall cause a copy of this Memorandum Order to be mailed to
plaintiff.
9.

This Memorandum Order is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.

Civ. P. 72(a), and D. Del. LR 72.1. The parties may file and serve specific written objections
within fourteen (14) days after being served with a copy ofthis Memorandum Order. Fed. R.
Civ. P. 72(a). The written objections and response are each limited to five (5) pages.
10.

The parties are directed to the court's Standing Order In ProSe Matters For

Objections Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is
available on the court's website, www.ded.uscourts.gov.

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11.

Because this Memorandum Order addresses a non-dispositive motion, any

objections filed will not affect the findings, rulings, or decisions herein during the pendency of a
decision on the objections.

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ES MAGISTRATE JUDGE

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