Tronsen v. Toledo-Lucas County Public Library

Filing 37

Opposition to 30 Motion for leave to File an Amended Complaint filed by Toledo-Lucas County Public Library. (Borell, John)

Tronsen v. Toledo-Lucas County Public Library

Doc. 37

Case 3:08-cv-00148-JGC Document 37

Filed 05/29/08 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION

ANDERS TRONSEN, Plaintiff

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Case No. 3:08-CV-148 JUDGE: CARR

vs. * * TOLEDO-LUCAS COUNTY PUBLIC LIBRARY Defendant * * * * * * Julia R. Bates Lucas County Prosecuting Attorney By: John A. Borell (0016461) Karlene D. Henderson(0076083) Assistant Prosecuting Attorneys Lucas County Courthouse, Suite 250 Toledo, Ohio 43624 Phone: [phone] Fax: [phone] E-mail: [e-mail] Counsel for Defendant DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

* ________________________________________________________________________________________ The plaintiff has filed a motion for leave to file an amended complaint. His motion must be denied, since the proposed amendment would be futile. Leave to amend a complaint must be freely give. Fed. R. Civ. P. 15(a). However, the rule conditions 1

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Case 3:08-cv-00148-JGC Document 37

Filed 05/29/08 Page 2 of 3

its directive by adding "when justice so requires." Id. Therefore, a court need not grant leave to amend if the p r o p o s e d amendment would be futile. Foman v. Davis, 371 U.S. 178, 182(1962); Betty Hiar v. Beverly Hingston, Case No. 95-1703(6th Cir. Sept. 5, 1996), unreported, 1996 U.S. App. LEXIS 25332 *8. The proposed amended complaint submitted by the plaintiff seeks to assert a due process claim. The alleged due process claim is based solely on the allegation that the defendant did not mail the notice of violation, which included an explanation of the right to appeal, until after the expiration of the seven day time limit to appeal. However, the defendant's policy states that an appeal may be submitted within seven days of RECEIPT of the letter. 1 Thus, the date of mailing is irrelevant to determining the time limit for the administration appeal. Therefore, the proposed amendment would be futile and the plaintiff's motion for leave to file an amended complaint must be denied.

Respectfully submitted JULIA R. BATES LUCAS COUNTY PROSECUTING ATTORNEY

By:

/s/ John A. Borell John A. Borell Karlene D. Henderson Assistant Prosecuting Attorneys Counsel for Defendant

The Library's written policies and procedures were attached to the memorandum in opposition to the motion for a temporary restraining order.

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Case 3:08-cv-00148-JGC Document 37

Filed 05/29/08 Page 3 of 3

CERTIFICATION A copy of the foregoing Memorandum in Opposition was sent by ordinary U.S. mail to the plaintiff on the 29th day of May, 2008.

/s/ John A. Borell John A. Borell Assistant Prosecuting Attorney Counsel for Defendant

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