BARBIERI et al v. THE UNITED STATES OF AMERICA et al

Filing 24

MEMORANDUM OPINION ORDER THAT DEFENDANTS' MOTIONS TO DISMISS ARE BOTH GRANTED AS OUTLINED HEREIN. THE AMENDED COMPLAINT IS DISMISSED. MR. BARBIERI MAY FILE A SECOND AMENDED COMPLAINT AGAINST ONLY DEFENDANT SPECIAL AGENT BRIAN COSGRIFF AS TO COUNT III WITHIN THIRTY (30) DAYS OF THIS ORDER TO ATTEMPT TO CURE THE DEFICIENCIES DISCUSSED IN THE ACCOMPANYING MEMORANDUM OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 9/28/2017. 9/28/2017 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
PIETRO A. BARBIERI, ESQ., ET AL,
:
:
Plaintiffs,
:
:
v.
:
:
THE UNITED STATES OF
:
AMERICA, ET AL.,
:
Defendants.
:
__________________________________________:

CIVIL ACTION

No. 16-3748

ORDER
AND NOW, this 28th day of September, 2017, upon consideration of “The United
States’ Motion to Dismiss Plaintiffs’ Federal Tort Claims Act Counts Against It,” (Doc. No. 11),
“The Individual Defendants’ Motion to Dismiss Plaintiff’s Constitutional Claims Against Them”
(Doc. No. 12), Plaintiffs’ Responses (Doc. Nos. 17 & 18), Defendants’ Replies (Doc. Nos. 19 &
20), “The Individual Defendants’ Notice of Supplemental Authority” (Doc. No. 21), and
“Plaintiffs’ Response to the Individual Defendants’ Notice of Supplemental Authority” (Doc.
No. 22), it is hereby ORDERED that Defendants’ motions to dismiss are both GRANTED, such
that Counts I and II are dismissed with prejudice as to the United States of America, and Count
III is dismissed with prejudice as to AUSA Anita Eve. It is further ORDERED that the
Amended Complaint is DISMISSED.
Mr. Barbieri may file a Second Amended Complaint against only Defendant Special
Agent Brian Cosgriff as to Count III within thirty (30) days of this Order to attempt to cure the
deficiencies discussed in the accompanying Opinion Memorandum.1
1

After a motion to dismiss has been filed, a district court should inform a plaintiff if he has leave
to amend his complaint within a set period of time, unless an amendment would be inequitable or
1

BY THE COURT:

/s/ Mitchell S. Goldberg
____________________
Mitchell S. Goldberg, J.

futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). I find that it is
conceivable that Mr. Barbieri could state a claim against Defendant Special Agent Brian Cosgriff
as to Count III. It would be futile for Plaintiffs to attempt to amend Counts I or II as to the
United States of America, or Count III as to AUSA Anita Eve, because those claims are
precluded by law.
2