FANTONE v. LATINI et al

Filing 37

MEMORANDUM AND ORDER denying as moot 36 Motion to Add Additional Counts because Plaintiff is given an extension of time in which he may amend the amended complaint to include the new Fifth Amendment claim or to file a response to the Motion to Dismiss no later than June 14, 2013. Defendants shall file a Reply to Plaintiff's response on or before July 1, 2013. Signed by Magistrate Judge Cynthia Reed Eddy on 05/24/2013. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PHILLIP LEE FANTONE,
Plaintiff,
v.
FRED LATINI, et al.,
Defendants.

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Civil Action No. 2: 12-cv-1691
United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM AND ORDER
On May 18, 2013, Defendants Joe Burger, Fred Latini, and Ron Mackey filed a Motion
to Dismiss the Amended Complaint with brief in support (ECF Nos. 33 and 35). By Text Order
dated April 16, 2013, Plaintiff was ordered to file a Response to the Motion to Dismiss on or
before May 16, 2013.
On May 22, 2013, instead of filing a response to the Motion to Dismiss, Plaintiff filed the
instant Motion to Add Additional Counts in which he seeks to add a Fifth Amendment claim to
his Amended Complaint (ECF No. 36). To date, Plaintiff has not filed a Response to the Motion
to Dismiss.
The Motion to Add Additional Counts will be denied, but Plaintiff will be given an
extension of time in which he may amend the amended complaint to include the new Fifth
Amendment claim or to file a response to the Motion to Dismiss.
AND NOW, this 24th day of May, 2013,
IT IS HEREBY ORDERED that Plaintiff is given leave to file a Second Amended
Complaint no later than June 14, 2013. The Second Amended Complaint must be prepared on
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the approved form and must include all defendants and all causes of action and must set forth
clearly identified causes of action that both identify Plaintiff’s legal theories and facts suggestive
of the proscribed conduct alleged on one stand-alone document without reference to any other
document filed in this case. See Fed. R. Civ. P. 8. Plaintiff is cautioned that the opportunity to
file an amended complaint is not an invitation to enlarge the lawsuit by filing new allegations not
related to the allegations in the original complaint or by adding defendants not related to the
allegations in the original complaint. Inclusion of new allegations and claims unrelated to those
set forth in the original complaint will be considered a failure to comply with an Order of Court
and will result in the dismissal of the amended complaint.
IT IS FURTHER ORDERED that if Plaintiff does not choose to file an amended
complaint, he SHALL file a response in opposition to Defendants’ Motion to Dismiss [ECF No.
33], including any appropriate exhibits or attachments, no later than June 14, 2013. The filing of
a response instead of an amended complaint will serve as notice to the District Court that
Plaintiff is asserting his intent to stand on the Amended Complaint filed in this action.
IT IS FURTHER ORDERED that Defendants shall file a Reply to Plaintiff’s response
on or before July 1, 2013.
IT IS FURTHER ORDERED that should Plaintiff fail to comply with this Order, the
Motion to Dismiss may be decided without the benefit of Plaintiff’s response.
IT IS FURTHER ORDERED that the Motion to Add Additional Counts filed by
Plaintiff (ECF No. 36) is hereby DENIED as moot as Plaintiff has been granted leave to amend
his complaint.
s/Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

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cc:

PHILLIP LEE FANTONE
GJ3440
SCI Coal Township
One Kelley Drive
Coal Township, PA 17866
Robert A. Willig
Office of Attorney General
Email: [e-mail]

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