Rascoe et al v. Cody et al

Filing 41

ORDER ADOPTING REPORT 37 of Magistrate Judge Saporito, GRANTING Susquehanna defts' MTD 29 to extend pltfs' amended complaint 20 is subject to dismissal on timeliness grounds, DISMISSING pltfs' amended complaint w/out prejudice, DENYING Cody's MTD 32 as MOOT,granting pltfs leave to file 2nd amended complaint w/in 30 days of date of this order..., setting forth instructions re: content & filing req'mts for any such 2nd amended complaint, & directing that Clrk of Ct shall CLOSE case in absence of timely-filed 2nd amended complaint. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 2/10/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHELLE RASCOE and RASCOE
COURTS, INC.,

:
:
:
Plaintiffs
:
:
v.
:
:
SUSQUEHANNA TOWNSHIP, NEIL :
CODY, in his individual capacity only, :
and GEORGE DREES, in his individual :
and official capacity,
:
:
Defendants
:

CIVIL ACTION NO. 1:15-CV-994
(Chief Judge Conner)

ORDER
AND NOW, this 10th day of February, 2017, upon consideration of the
report (Doc. 37) of Magistrate Judge Joseph F. Saporito, Jr., recommending the
court grant the motion (Doc. 29) to dismiss of defendants Susquehanna Township
and George Drees (“Susquehanna defendants”) on timeliness grounds, that the
court sua sponte dismiss the amended complaint (Doc. 20) against codefendant Neil
Cody (“Cody”) who is similarly situated to the Susquehanna defendants but failed to
raise the defense, and that such dismissal be with prejudice as any effort to amend
the complaint would be futile, and the court noting that plaintiffs filed an objection
(Doc. 38) to the report, see FED. R. CIV. P. 72(b), and, following a de novo review of
the contested portions of the report, see Behar v. Pa. Dep’t of Transp., 791 F. Supp.
2d 383, 389 (M.D. Pa. 2011) (citing 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885 F.2d
1099, 1106 n.3 (3d Cir. 1989)), and applying a clear error standard of review to the
uncontested portions, see Cruz v. Chater, 990 F. Supp. 375, 376-78 (M.D. Pa. 1999),

the court finding Judge Saporito’s analysis to be thorough, well-reasoned, and
fully supported by the record, and the court disagreeing with the report only to
the limited extent that the court concludes plaintiffs should be given one final
opportunity to amend their complaint to state facts in support of their equitable
tolling argument, see Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002), it is hereby ORDERED that:
1.

The report (Doc. 37) of Magistrate Judge Saporito is ADOPTED.

2.

The Susquehanna defendants’ motion (Doc. 29) to dismiss is
GRANTED to the extent plaintiffs’ amended complaint (Doc. 20) is
subject to dismissal on timeliness grounds.

3.

Plaintiffs’ amended complaint (Doc. 20) is DISMISSED without
prejudice.

4.

Cody’s motion (Doc. 32) to dismiss is DENIED as moot.

5.

Plaintiffs are granted leave to file a second amended complaint within
thirty (30) days of the date of this order, consistent with the report (Doc.
37) of Magistrate Judge Saporito and this order.

6.

Any amended pleading filed pursuant to paragraph 5 shall be filed to
the same docket number as the instant action, shall be entitled “Second
Amended Complaint,” and shall be complete in all respects. It shall be
a new pleading which stands by itself as an adequate complaint under
the Federal Rules of Civil Procedure, without reference to the pleading
(Doc. 20) hereinabove dismissed.

7.

In the absence of a timely-filed second amended complaint, the Clerk of
Court shall CLOSE this case.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania