WILEY v. NEWARK POLICE DEPARTMENT et al

Filing 13

MEMORANDUM AND ORDER administratively terminating 5 Motion to Dismiss ; granting 12 Motion for leave to file an Amended Complaint; etc. Signed by Judge Kevin McNulty on 1/24/17. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MALCOLM WILEY,

Civ. No. 16-2530
Plaintiff,
MEMORANDUM & ORDER

V.

NEWARK POLICE DEPARTMENT,
CITY OF NEWARK,
ESSEX COUNTY,
ESSEX COUNTY SHERIFF OFFICE,
NEWARK POLICE OFFICERS JOHN DOES
1-50,
DefendantS.

On May 4, 2016, the plaintiff, Malcolm Wiley, filed the original
complaint in this action. (ECF no. 1) On July 22, 2016, the City of Newark and
the Newark Police Department filed a motion to dismiss the Complaint. In a
letter dated October 24, 2016, counsel acknowledged defects in the original
complaint, stated that he would withdraw it, and stated his intent to file an
amended complaint within 30 days. (ECF no. 8) On November 28, 2016,
counsel for the City wrote the court, pointing out that there had been no
response to the motion to dismiss, and no amended complaint filed. (ECF no.
10) On December 19, the Court entered a text order requiring that any
application to file an amended complaint be filed by January 5, 2017. (ECF no.
11)
On January 5, 2017, plaintiff’s counsel filed a motion to
amend/correct the complaint. (ECF no. 12) The motion attached a proposed
amended complaint, which extensively supplemented and revised the
allegations. (ECF no. 12-1) Motions to amend, especially in the early stages of
litigation, are granted freely. See Fed. R. Civ. P. 15.

1

The original complaint no longer reflects the plaintiff’s wishes as to
the claims he is asserting. The motion to dismiss the original complaint,
however, remains pending. The motion to amend the complaint is likely to be
granted, but in opposing it, defendants will surely file what amounts to a
preemptive motion to dismiss.
Rather than adjudicate a motion to dismiss claims that are no
longer being pursued, or address the merits of the amended complaint via the
indirect route of a motion to amend, the court has opted for a practical
solution. Accordingly,
IT IS this 24th day of January, 2017,
ORDERED as follows:
1.

The motion to dismiss the original Complaint (ECF no. 5) is

ADMINISTRATIVELY TERMINATED.
2.

The motion for leave to file the Amended Complaint (ECF no.

12) is GRANTED.
3.

Defendants shall, within 21 days, answer or move to dismiss

the Amended Complaint.

United States District Judê

2

j