Mincy v. Klem et al

Filing 175

ORDER - It is hereby ORDERED that - 1. Order of 10/11/11 163 VACATED, pltf's mot for recon 168 DENIED & pltf's mot seeking sanctions 169 DENIED.; 2. Pltf's mot to amend 127 2nd amend complain DENIED.; 3. Pltf's mot to reopen discovery 153 w/ re: CMM DENIED.; 4. Pltf's motion to strike 156 defts' br in opp to mot for leave to amend & disc mots DENIED. (See order for complete details.) Signed by Honorable Christopher C. Conner on 11/22/11. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HILTON KARRIEM MINCY,
Plaintiff,
v.
EDWARD KLEM, et al.,
Defendants

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CIVIL ACTION NO. 1:07-CV-0790
(Judge Conner)

ORDER
AND NOW, this 22nd day of November, 2011, upon consideration of this
Court’s Order of October 11, 2011 (Doc. 163), granting plaintiff’s motion to amend
(Doc. 127) his Second Amended Complaint (Doc. 44) to substitute “CMM” for
defendant Hryciyna in Count II, on the basis that despite the fact that there was no
evidence that “CMM” had notice of the suit within the 120-day period, the Court
found it likely that, via the “shared attorney” method, which requires an inquiry of
whether notice of the institution of this action can be imputed to the defendant
sought to be named within the relevant 120-day period by virtue of representation
he shared with a defendant originally named in the lawsuit, Singletary v.
Pennsylvania Dep’t of Corrs., 266 F.3d 186, 196 (3d. Cir. 2001), “CMM” would be
represented by the same attorney who has represented all defendants since the
inception of this action, and that “the attorney is likely to have communicated to
the latter party that he may well be joined in the action” within the 120-day period,
id., such that notice could be imputed to “CMM,” and it appearing from defendants’
“Notice in Response to October 11, 2011 Order Compelling Identification of “CMM”

(Doc. 165) that defense counsel was not aware of the identity of CMM within the
120-day period and could not have communicated to “CMM” that he may well be
joined in the action and therefore, there is no basis upon which to impute notice to
CMM within the 120-day time period and, hence, no support for granting plaintiff’s
motion to amend the second amended complaint, it is hereby ORDERED as follows:
1.

The Order of October 11, 2011 (Doc. 163) is VACATED, plaintiff’s
motion for reconsideration of that Order (Doc. 168) is DENIED and
plaintiff’s motion seeking sanctions (Doc. 169) for defendants’ failure to
comply with that Order is DENIED.

2.

Plaintiff’s motion to amend (Doc. 127) the Second Amended Complaint
is DENIED.

3.

Plaintiff’s motion to reopen discovery (Doc. 153) to allow plaintiff to
pursue discovery with respect to “CMM” is DENIED.

4.

Plaintiff’s motion to strike (Doc. 156) defendants’ brief in opposition to
his motion for leave to amend and discovery motions is DENIED.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge