Duffy v. Mange et al

Filing 35

MEMORANDUM ORDER- DENYING 31 MOTION to Strike 30 MOTION for Leave to Amend Complaint, GRANTING 30 MOTION for Leave to Amend Complaint. Signed by Judge Sherry R. Fallon on 6/27/2013. (lih)

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

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Plaintiff,

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v.
M. MANGE, KENT COUNTY
DELAWARE, P. BROOKS BANTA and
KENT LEVY COURT INC.,
Defendants.

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Civil Action No. 11-13-SLR-SRF

MEMORANDUM ORDER

At Wilmington this 27th day of June, 2013,
IT IS ORDERED that plaintiffs motion for leave to amend the complaint (D.I. 30) is
GRANTED, and defendants' Motion to Strike the Plaintiffs Motions to Amend (D.I. 31) is
DENIED as moot for the following reasons:
1.

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

January 4, 2011. He appears prose and has been granted leave to proceed in forma pauperis.
The allegations are related to the aftermath of a coastal storm that occurred on May 12, 2008, and
plaintiffs claim of displacement from his property as a result of the storm. In a memorandum
order dated May 3, 2011, the court dismissed all but plaintiffs Takings Clause claim. (D.I. 7)
On September 26, 2011, the parties entered into a joint stipulation to extend the time to file a
responsive pleading indefinitely, giving the parties an opportunity to discuss whether amendment
or consolidation ofthe action was appropriate. (D.I. 20) On May 30, 2013, plaintiff moved to
amend the complaint, retaining his Fifth Amendment claim and adding a claim under the Fourth
Amendment search and seizure clause. (D.I. 30)

2.

Legal Standard. Federal Rule of Civil Procedure 15(a)(l )(B) provides that a

plaintiff may amend his pleading once as a matter of course within twenty-one (21) days after
service of a responsive pleading or twenty-one (21) days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1)(B).
3.

Discussion. To date, defendant has not filed a responsive pleading to plaintiff's

original complaint. Therefore, plaintiff may amend the complaint once as a matter of right. Fed.
R. Civ. P. 15(a)(1)(B).

4.

Conclusion. For the foregoing reasons, plaintiff's motion for leave to amend the

complaint (D.I. 30) is GRANTED, and defendant's motion to strike is DENIED as moot. The
amended pleading shall consist of the Takings Clause claim asserted in the original complaint
(D.I. 1) 1 and plaintiff's amendment (D.I. 30). The Clerk of Court shall cause a copy ofthis
Memorandum Order to be mailed to plaintiff.
5.

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 of this Memorandum Order. Fed. R.
Civ. P. 72(a). The written objections and response are each limited to five (5) pages.
6.

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 ofwhich is
available on the court's website, www.ded.uscourts.gov.

1

Judge Robinson addressed the parameters of plaintiff's Takings Clause claim in paragraph
9 ofthe Memorandum Order dated April29, 2011. (D.I. 7 at~ 9)
2

7.

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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