Shaya v. Belcastro et al

Filing 47

ORDER Denying Defendant David Belcastro's 35 MOTION for Summary Judgment Without Prejudice as Moot and Permitting Plaintiff Steve Shaya to File a Fourth Amended Complaint. (Fourth Amended Complaint due by 8/21/2014). Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEVE SHAYA,
Plaintiff,

Case No. 14-cv-11112
Hon. Matthew F. Leitman

v.
DAVID BELCASTRO, et al.,
Defendants.
_________________________________/
ORDER DENYING DEFENDANT DAVID BELCASTRO’S MOTION FOR
SUMMARY JUDGMENT (ECF #35) WITHOUT PREJUDICE AS MOOT
AND PERMITTING PLAINTIFF STEVE SHAYA TO FILE A FOURTH
AMENDED COMPLAINT

Defendant David Belcastro (“Defendant Belcastro”) has filed a motion
labeled as a "Motion for Summary Judgment." (See ECF #35.) The motion is
actually one to dismiss Plaintiff Steve Shaya’s (“Plaintiff”) Third Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion is
fully briefed. During a telephonic status conference with counsel for all parties on
August 7, 2014, the Court indicated that it had reviewed the parties’ briefs and that
while it had not yet reached any final conclusions, its initial inclination was that
Defendant Belcastro had raised some legitimate concerns as to the sufficiency of
Plaintiff’s allegations against Defendant Belcastro. The Court informed counsel
that even if it were eventually to conclude that the current allegations against
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Defendant Belcastro were insufficient, the Court would afford Plaintiff’s counsel
an opportunity to further amend the governing Complaint in an effort to address
any pleading deficiencies.

After the discussion with counsel, the Court has

determined that the most expeditious way to address the pleading issues with
respect to Defendant Belcastro is as follows:
1.

The Court directs Plaintiff to file a Fourth Amended Complaint within

fourteen days of this Order. The amendments in the Fourth Amended Complaint
shall be limited to the addition of factual allegations against, and related to,
Defendant Belcastro. The Court strongly advises Plaintiff to review Defendant
Belcastro's arguments concerning the pleading deficiencies in the Third Amended
Complaint and to include in the Fourth Amended Complaint each and every fact
known to Plaintiff and related to Defendant Belcastro that address the alleged
deficiencies. In light of this opportunity to amend, the Court will be far less
inclined to allow further amendment if the Court determines that the allegations
against Defendant Belcastro in the Fourth Amended Complaint are deficient.
2.

Because the Court is directing Plaintiff to file amended allegations

with respect to Defendant Belcastro, the Court denies Defendant Belcastro's
pending motion to dismiss (ECF #35) as moot. This denial is without prejudice,
and Defendant Belcastro may file a motion to dismiss the claims against him in the
Fourth Amended Complaint if he believes that he has a good faith basis to do so.
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Defendant Belcastro shall file such a motion within twenty-one days after the filing
of the Fourth Amended Complaint. If Defendant Belcastro does not file such a
motion (or some other motion in lieu of an answer), he shall answer the Fourth
Amended Complaint within twenty-one days after it is filed.
3.

Defendant Belcastro shall not be deposed until at least seven days

after the latter of (a) a ruling by this Court on a motion by Defendant Belcastro to
dismiss the Fourth Amended Complaint or (b) the filing of an answer by Defendant
Belcastro to the Fourth Amended Complaint.

IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: August 7, 2014
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on August 7, 2014, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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