Mackey et al v. Township of Cass et al

Filing 13

MEMORANDUM and ORDER denying 12 plaintiff's Motion for Reconsideration ; and GRANTING an additional 30 days from date of this order to file an amended complaint.Signed by Honorable James M. Munley on 11/8/12 (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH MACKEY and
IDA MACKEY,
Plaintiffs

:
No. 3:12cv1561
:
:
(Judge Munley)
:
v.
:
:
TOWNSHIP OF CASS,
:
JAMES D. THOMAS,
:
MICHAEL KULPCAVAGE and
:
JOHN W. WALATIS,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court is Plaintiffs Joseph Mackey and Ida Mackey’s
motion for reconsideration (Doc. 12). Plaintiffs move for reconsideration of
the court’s Memorandum and Order dated October 31, 2012, which
ordered plaintiffs to file an amended complaint. In the alternative, plaintiffs
request an extension of time to file an amended complaint. For the
following reasons, plaintiffs’ motion for reconsideration will be denied. But,
the court will grant plaintiffs thirty (30) days to file an amended complaint.
“The purpose of a motion for reconsideration is to correct manifest
errors of law or fact or to present newly discovered evidence.” Harsco
Corp. v. Zlotnicki, 799 F.2d 906, 909 (3d Cir.1985); Max's Seafood Café ex
rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). The
movant must demonstrate one of three grounds for such a motion to be

granted: (1) an intervening change in controlling law; (2) the availability of
new evidence not previously available; or (3) the need to correct a clear
error of law or to prevent manifest injustice. Max's Seafood Café, 176 F.3d
at 677. A motion for reconsideration is not a proper vehicle to merely
attempt to convince the court to rethink a decision it has already made.
Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122
(E.D. Pa. 1993).
In the Memorandum and Order dated October 31, 2012, the court
ordered plaintiffs to file an amended complaint. In reaching this decision,
the court sua sponte raised the issue of ripeness. (Doc. 11, Mem. & Order
dated Oct. 31, 2012 at 10). The court held plaintiffs’ Section 1983 action
was not ripe until plaintiffs proceeded through inverse condemnation
proceedings in state court. (Id. at 13).
Having reached the conclusion that plaintiffs’ Section 1983 action
was not ripe, the court directed plaintiffs to file an amended complaint. (Id.
at 14). We held plaintiffs’ only non-futile curative option was to amend their
complaint by stating that the plaintiffs filed an inverse condemnation action
with the state courts and the state courts decided that action. Plaintiffs did
not amend their complaint. Plaintiffs responded by filing their motion for
reconsideration, or in the alternative, a motion for an extension of time to
file an amended complaint.

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In their instant motion, plaintiffs request that the court reconsider its
prior ruling for the following reasons:
The Court reads the existing Complaint too narrowly in that
the issue of justiciability assumes that the sole remedy
sought under Count IV of the Complaint (42 U.S.C.A. 1983)
are damages for the taking of property, when in fact this is
not the case. . . . While condemnation damages (inverse or
otherwise) for the seizure of the Property Extension are
closely related considerations, the trespass, the seizure and
destruction of antiques and other personal property, the
continued denial of use and enjoyment of the personal
property (including the shed right up until the date of this
motion) the official intimidation imposed not only on in [sic]
the seizure but also the exclusion are plainly averred in the
Complaint and have independent significance wholly apart
from and claim for damages for loss of use of the real
property (the Property Extension) are within the umbrella of
the Plaintiffs’ civil rights Count as pleaded.
(Doc. 12, Mot. for Recons. ¶¶ 3(a), 8).
The court will deny plaintiffs’ motion for reconsideration. Plaintiffs’
arguments fail to amount to a clear error of law or manifest injustice; rather,
plaintiffs’ reasons represent little more than recycled arguments that
attempt to convince the court to re-think our decision. Specifically,
plaintiffs have repackaged their arguments under the guise of substantive
due process. We reject plaintiffs’ attempt to bootstrap their state law
claims into a federal court action by dressing it in the verbiage of
substantive due process when that claim is not expressly stated as a count

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within plaintiffs’ complaint.1 We can only interpret what is written in a
complaint. Accordingly, plaintiffs’ motion for reconsideration will be denied.
In the alternative, plaintiffs request an extension of time to amend
their complaint. When a complaint is subject to dismissal, we must permit
a curative amendment within a set period of time unless such an
amendment would be inequitable or futile. Grayson v. Mayview State
Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Alston v. Parker, 363 F.3d 229,
235 (3d Cir. 2004). As currently written, plaintiffs’ only non-futile curative
option is to amend their complaint by stating that the plaintiffs have filed an
inverse condemnation action with the state courts and the state courts
decided that action. However, we will grant plaintiffs’ request for an
extension of time to amend their complaint to include such a claim or any
other constitutional claim they can properly assert. An appropriate order
follows.

Count IV of plaintiffs’ complaint is a Fifth Amendment claim asserted
through Section 1983. (See Compl. ¶¶ 62-68).
1

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH MACKEY and
IDA MACKEY,
Plaintiffs

:
No. 3:12cv1561
:
:
(Judge Munley)
:
v.
:
:
TOWNSHIP OF CASS,
:
JAMES D. THOMAS,
:
MICHAEL KULPCAVAGE and
:
JOHN W. WALATIS,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit this 8th day of November 2012, plaintiffs’ motion for
reconsideration (Doc. 12) is hereby DENIED; however, we will GRANT
plaintiffs an additional thirty (30) days from the date of this order to file an
amended complaint.

BY THE COURT:

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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