GAWLAS v. KING et al
Filing
23
MEMORANDUM OPINION AND ORDER granting 16 Motion to Dismiss without prejudice to Plaintiff's right to file an amended complaint on or before October 11, 2011. Signed by Judge Terrence F. McVerry on 9/27/11. (mh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN C. GAWLAS,
Plaintiff,
v
CHRISTOPHER W. KING in his official and individual
capacity, JAMES A. WEBER in his official and individual
capacity, J. SCOTT ALBRECHT in his official and individual
capacity, JANICE R. CMAR in her official and individual
capacity, VICKIE IELASE in her official and individual
capacity, TRACEY P. KHALIL in his official and individual
capacity, MARY K. REYNOLDS in her official and
individual capacity, JACK MAPLE in his official and
individual capacity and THE BOROUGH OF JEFFERSON
HILLS
Defendants.
)
)
)
) 2:11-cv-742
)
)
)
)
)
)
)
)
)
)
MEMORANDUM OPINION AND ORDER OF COURT
Pending before the Court is DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S
COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(6) (Document No. 16), with brief in
support. Plaintiff filed a response and brief in opposition to the motion (Document No. 20).
Attached to Plaintiff’s response were Declarations from John C. Gawlas and Michael
D’Alessandro (Document No. 20, exhibits A and B), by which Plaintiff’s counsel is attempting
to present additional factual allegations to the Court. Defendants filed a Reply Brief and the
motion is now ripe for disposition.
Discussion
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) challenges the legal sufficiency
of a complaint. The Court must accept as true all well-pleaded facts and allegations set forth in
that pleading, and must draw all reasonable inferences therefrom in favor of the plaintiff. As
1
Defendants correctly point out, in deciding a motion to dismiss, courts are limited to
consideration of the allegations in the complaint, exhibits attached thereto and matters of public
record. Pension Ben. Guar. Corp. v. White Consol. Industries, Inc., 998 F.2d 1192, 1196 (3d
Cir. 1993). See also Fed. R. Civ. P. 12(d). The filing of the Declarations constitutes at least a
tacit admission that Plaintiff does not intend to stand on the original complaint as filed. It was
procedurally improper for Plaintiff’s counsel to submit the Declarations in response to the
motion to dismiss and they will not be considered in ruling on the pending motion. Instead,
Plaintiff’s counsel should have sought leave pursuant to Fed. R. Civ. P. 15 to file an amended
complaint. This would have rendered the pending motion to dismiss moot.
The Court notes that if a civil rights complaint is subject to Rule 12(b)(6) dismissal, a
district court must permit a curative amendment unless such an amendment would be inequitable
or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004); accord Grayson v. Mayview State
Hosp., 293 F.3d 103 (3d Cir. 2002). A district court must provide the plaintiff with this
opportunity even if the plaintiff does not seek leave to amend. Id. But see Fletcher-Harlee Corp.
v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252-53 (3d Cir. 2007) (in non-civil rights
cases, Plaintiff must seek leave to amend and submit draft amended complaint). The district
court may dismiss the action if the plaintiff does not file an amended complaint within that time,
or if the plaintiff files a notice of its intent to stand on the complaint as filed.
In the current procedural posture of this case, ruling on the pending motion – which tests
the legal sufficiency of the original complaint -- would not be consistent with the Court’s
mandate in Fed. R. Civ. P. 1 to ensure the just, speedy and inexpensive determination of this
action. It is clear that Plaintiff does not intend to stand upon the original complaint, as filed.
Pursuant to Fed. R. Civ. P. 15(a), leave to amend a complaint, once, should be freely granted as a
2
matter of course. This is a civil rights case in which leave to amend must ordinarily be permitted.
The Court is aware that Defendants oppose leave to amend on the grounds of futility. However,
the Court concludes that the most prudent course of action is to permit Plaintiff to file an
amended complaint which contains all of the factual allegations he intends to present, and then to
provide Defendants with an opportunity to respond to Plaintiff’s more thoroughly-articulated
position. Accordingly, DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT
PURSUANT TO FED. R. CIV. P. 12(B)(6) will be GRANTED without prejudice to Plaintiff’s
ability to file an amended complaint.
Defendants have raised numerous legal challenges to the claims asserted in this case. If
Plaintiff chooses to file an amended complaint, it will be important to address all of these alleged
shortcomings to assure that the amended complaint contains sufficient factual allegations to
render the claim(s) “plausible” in compliance with the pleading standard set forth and explained
in Twombly, Fowler and Phillips, as a further opportunity to amend is unlikely to be granted.
An appropriate Order follows.
McVerry, J.
3
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN C. GAWLAS,
Plaintiff,
v
CHRISTOPHER W. KING in his official and individual
capacity, JAMES A. WEBER in his official and individual
capacity, J. SCOTT ALBRECHT in his official and individual
capacity, JANICE R. CMAR in her official and individual
capacity, VICKIE IELASE in her official and individual
capacity, TRACEY P. KHALIL in his official and individual
capacity, MARY K. REYNOLDS in her official and
individual capacity, JACK MAPLE in his official and
individual capacity and THE BOROUGH OF JEFFERSON
HILLS
Defendants.
)
)
)
) 2:11-cv-742
)
)
)
)
)
)
)
)
)
)
ORDER OF COURT
AND NOW, this 27th day of September, 2011, for the reasons set forth in the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED and DECREED that
DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED.
R. CIV. P. 12(B)(6) (Document No. 16) is GRANTED without prejudice to Plaintiff’s right to
file an amended complaint.
Plaintiff may file an amended complaint on or before October 11, 2011 or he may elect to
stand on his original complaint as filed.
BY THE COURT:
s/Terrence F. McVerry
United States District Judge
cc:
Fred C. Jug , Jr., Esquire
Email: fredjug@covad.net
Philip J. Sbrolla, Esquire
Email: psbrolla@c-wlaw.com
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?