Jutkiewicz v. Roldan

Filing 19

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered. Plaintiff's first 9 motion to amend is DENIED insofar as it seeks to add Helene Maichele, and otherwise GRANTED. The Clerk shall issue a summons for service of the complaint on defendan ts. The Clerk shall send the summons, a copy of the complaint, and this Order to plaintiff, who must thereafter serve defendants in accordance with Federal Rule ofCivil Procedure 4(m). Plaintiff may elect to have service made by the UnitedStates Mars hals Service. If directed by plaintiff to do so, the United StatesMarshals Service shall serve the summons, complaint, and this Order upondefendants, in the manner directed by plaintiff, with all costs of service to be advanced by the United States M arshal Service. Notwithstanding Fed. R. Civ. P. 4(m) and Local Rule 4.1, plaintiff shall have 120 days from the date of this order to complete service on defendants. Plaintiff's second 10 motion to amend is DENIED. Defendant Ellen Bradley's 17 motion to dismiss (Docket No. 17) is GRANTED. (Cicolini, Pietro)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
KAREN JUTKIEWICZ,
Plaintiff,
v.
WANDA ROLDAN, WILLIAM
McGONAGLE, GAIL LIVINGSTON,
BETSY GALICIA, ELLEN BRADY, and
PHILLIS CORBITT,
Defendants.

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Civil Action No.
13-10998-FDS

MEMORANDUM AND ORDER ON PLANTIFF’S MOTIONS
TO AMEND AND DEFENDANT BRADLEY’S MOTION TO DISMISS
SAYLOR, J.
I.

Introduction
Plaintiff Karen Jutkiewicz, a resident of Boston public housing, has filed a pro se

complaint against the Boston Housing Authority (“BHA”) and various BHA employees, alleging
violations of her civil rights and of her lease. Plaintiff has filed two separate motions to amend.
Defendant Ellen Bradley, an employee of the U.S. Department of Housing and Urban
Development, has moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6).
II.

Analysis
A.

Motions to Amend

Under Fed. R. Civ. P. 15, a party may amend its pleading once as a matter of course
within 21 days after serving it, or within 21 days after service of a responsive pleading or motion
under Fed. R. Civ. P. 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). All other amendments require
the opposing party’s written consent or the court’s leave. Fed. R. Civ. P. 15(a)(2).

Plaintiff’s first motion to amend seeks to supplement the factual bases for the claims in
her complaint and to add two new defendants: Helene Maichele, an attorney who represents
BHA; and Matthew Steele, the Civil Rights Policy Manager at BHA. Although it is unclear
exactly when defendants were served, plaintiff filed her first motion to amend before defendants
filed an answer to the complaint. Accordingly, plaintiff was entitled to amend her filing under
Rule 15(a)(1) without first seeking leave from the Court. She will have 120 days from the date
of this order to serve the amended pleadings.
However, Maichele has already filed a motion to dismiss under Rule 12(b)(6) that was
granted on October 15, 2013, for failure to state a claim upon which relief can be granted. The
amendments in plaintiff’s motion do not add any new factual allegations or legal claims
concerning Maichele. Adding her as a defendant again would only result in another dismissal.
Accordingly, plaintiff’s first motion to amend will be denied as to Maichele and otherwise
granted.
Because plaintiff already filed a motion to amend the complaint, her second motion to
amend requires the Court’s leave or defendants’ consent. Fed. R. Civ. P. R. 15(a)(2). That
motion seeks to add Maichele as a defendant. Leave to amend “should be granted unless the
amendment would be futile or reward undue delay.” Abraham v. Woods Hole Oceanographic
Inst., 553 F.3d 114, 117 (1st Cir. 2009). Adding Maichele to the case would be futile.
Accordingly, plaintiff’s second motion to amend will be denied.
B.

Bradley’s Motion to Dismiss

Defendant Ellen Bradley has filed a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6). In particular, the complaint alleges that Bradley spoke to Jutkiewicz about her
complaints, and that Bradley referred her to HUD’s civil rights office. (Docket No. 7 at 13).
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The complaint does not seek relief against Bradley. Here, even reading the facts in the light
most favorable to the non-moving party, see Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d
1, 5 (1st Cir. 2007), the complaint has failed to state a claim upon which relief can be granted as
to Bradley. Accordingly, the motion to dismiss will be granted.
III.

Conclusion
For the foregoing reasons:
1.

Plaintiff’s first motion to amend (Docket No. 9) is DENIED insofar as it seeks to
add Helene Maichele, and otherwise GRANTED.

2.

The Clerk shall issue a summons for service of the complaint on defendants.

3.

The Clerk shall send the summons, a copy of the complaint, and this Order to
plaintiff, who must thereafter serve defendants in accordance with Federal Rule of
Civil Procedure 4(m). Plaintiff may elect to have service made by the United
States Marshals Service. If directed by plaintiff to do so, the United States
Marshals Service shall serve the summons, complaint, and this Order upon
defendants, in the manner directed by plaintiff, with all costs of service to be
advanced by the United States Marshal Service.

4.

Notwithstanding Fed. R. Civ. P. 4(m) and Local Rule 4.1, plaintiff shall have 120
days from the date of this order to complete service on defendants.

5.

Plaintiff’s second motion to amend (Docket No. 10) is DENIED.

6.

Defendant Ellen Bradley’s motion to dismiss (Docket No. 17) is GRANTED.

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So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: January 29, 2014

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