Muckerman v. Genasci

Filing 11

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiff's "Verified Motion to Dismiss Without Prejudice All Defendants [Except] Arthur Genasci and Motion to Amend the Pleadings Against Arthur Genasci [ECF No. 7 ] is GRANTED, in part. (Amended/Supplemental Pleadings due by 4/2/2015.) Signed by District Judge E. Richard Webber on 3/12/15. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DAVID G. MUCKERMAN,
Plaintiff,
vs.
ARTHUR W. GENASCI, et al.,
Defendants.

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Case No. 4:14CV01844 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff David Muckerman’s “Verified Motion to
Dismiss Without Prejudice All Defendants [Except]1 Arthur Genasci and Motion to Amend the
Pleadings Against Arthur Genasci” [ECF No. 7].
On February 13, 2015, Plaintiff filed the pending Motion, stating, “I hereby dismiss my
complaint without prejudice against all individual Defendants [except] Arthur Genasci
personally and the City of St[.] Charles division of Neighborhood Preservation” [ECF No. 7 at
1].

Plaintiff also states, “I also move to amend my pleadings to additionally include the

following scope” [ECF No. 7 at 1]. Plaintiff then makes various new factual allegations, many
of which relate to the “City of St[.] Charles division of Neighborhood Preservation” and
Defendant Arthur Genasci [ECF No. 7 at 1-8]. The Court notes the “City of St[.] Charles
division of Neighborhood Preservation” is not currently a party to this action.2

1

Plaintiff actually uses the word “Accept” here, but for purposes of this Motion, the Court
assumes Plaintiff intended to use the word “Except.”
2
The complete list of current Defendants is as follows: Arthur Genasci, Wayne E. Anthony,
Harold Ellis, Joel David Brett, Joseph W. Smith, Drew A. Heffner, Joann M. Leykam, Connie
McIntyre, Greg Scott, and Kevin Jett.

In their joint response, Defendants Genasci, Anthony, Ellis, Brett, Heffner, Leykam,
McIntyre, and Scott state they “do not oppose dismissal as to all Defendants except Defendant
Genasci” [ECF No. 8 at 1]. Additionally, in contrast with Plaintiff’s frequent references to the
“City of St[.] Charles division of Neighborhood Preservation,” Defendants also note neither the
City of St. Charles nor St. Charles County is a party to this litigation [ECF No. 8 at 1].
Because Defendants do not oppose3 the proposed voluntary dismissal, the Court will
grant Plaintiff’s Motion and dismiss Plaintiff’s claims against all existing Defendants, other than
Arthur Genasci.
As for the Motion to Amend, the Court will not simply consider Plaintiff’s Complaint to
be amended to include the new allegations contained in the present Motion, as requested by
Plaintiff.4 Rather, the Court will grant Plaintiff leave to file an Amended Complaint within
twenty-one (21) days of this Order. However, in doing so, the Court emphasizes the new factual
allegations appearing in Plaintiff’s Motion to Amend, in their current form, do not constitute the
amended pleading. Plaintiff must file a completely new document (an Amended Complaint),
and any claim, party, or allegation Plaintiff wishes to be part of these proceedings going forward,
including those contained in the present Motion to Amend, must appear in the Amended
Complaint. Additionally, based on Plaintiff’s Motion, it appears he mistakenly believes the
“City of St[.] Charles division of Neighborhood Preservation” is a current Defendant.5

3

If

Admittedly, Defendants Jett and Smith have not responded to Plaintiff’s Motion. However,
without a response from these Defendants, the Court will not assume they oppose the voluntary
dismissal of claims against them.
4
Again, Plaintiff’s Motion states, “I also move to amend my pleadings to additionally include
the following scope,” and the proceeding pages contain new factual allegations Plaintiff seeks to
be included within the scope of his Complaint.
5
Again, in its Motion, Plaintiff seeks dismissal of his “complaint without prejudice against all
individual Defendants [except] Arthur Genasci personally and the City of St[.] Charles division
of Neighborhood Preservation” [ECF No. 7 at 1].
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Plaintiff wishes to bring claims against an individual or entity other than Arthur Genasci
(including any St. Charles-related entity or entities), such defendant or defendants must be
named in Plaintiff’s Amended Complaint. Therefore, Plaintiff’s Motion will be granted, in part.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s “Verified Motion to Dismiss Without
Prejudice All Defendants [Except] Arthur Genasci and Motion to Amend the Pleadings Against
Arthur Genasci” [ECF No. 7] is GRANTED, in part.
Dated this 12th Day of March, 2015.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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