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Curbison v. Lee

July 31, 2007


The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge


This matter is before the Court upon the "Motion for Leave to Amend His Complaint Under Fed. R. Civ. P. 15(a)" [Doc. No. 33] filed by pro se Plaintiff, Achilles Curbison. Plaintiff seeks leave to file a Second Amended Complaint to assert claims against The Summit Bank, the Chief Executive Officer or President of The Summit Bank and the Board of Directors of The Summit Bank (hereinafter collectively "Summit"); Levy & Levy P.A. and William N. Levy, Esquire (hereinafter collectively "Levy"); Rotan E. Lee, Esquire ("Lee"); and the Estate of Rotan E. Lee, Esquire and the Executor of the Estate of Rotan E. Lee, Esquire (hereinafter collectively "Lee's Estate"). Plaintiff's proposed amendments claim that Summit and Levy conspired to deprive him of his constitutional rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. Plaintiff's proposed claims against Lee and Lee's Estate allege legal malpractice. For the reasons discussed herein (1) Plaintiff's request for leave to amend his complaint to add claims against Summit and Levy is denied; (2) Plaintiff's request for leave to amend his complaint to add a claim for legal malpractice against Lee is granted; and (3) Plaintiff's request for leave to amend his complaint to add claims against Lee's Estate is denied without prejudice.

I. Background

A. Factual Background

Plaintiff seeks relief for the alleged deprivation of his real and personal property which was seized by the United States in connection with a lawsuit to recoup funds from an alleged check forgery scheme and related criminal investigation. On April 4, 2000, The Bayer Corporation ("Bayer") filed suit against Summit Bank, Levy & Levy, P.A. and William N. Levy, Esquire, alleging that Summit Bank negligently cashed a forged check issued by Bayer and deposited the funds into the account of Levy & Levy, P.A. Bayer sought a return of those funds. In the course of that litigation, Summit Bank filed a third party complaint against Neleh Company, LLC ("Neleh") and others that received funds from the forged checks.

In February 2000, the Federal Bureau of Investigation ("FBI") was investigating Plaintiff regarding his participation in a $1.2 million counterfeit check drawn on Bayer's bank account. The investigation allegedly revealed that Plaintiff received $700,000 of this money and used it to purchase a home and two vehicles. (See December 21, 2006 Opinion of the Honorable Jerome B. Simandle [Doc. No. 31] at 5). The United States filed a forfeiture action on August 3, 2000 against Plaintiff's home and two vehicles. A partial default judgment and final order of forfeiture was entered on July 10, 2001 transferring all rights, title and interest in the home and two vehicles to the United States.

B. Procedural History

Plaintiff filed his original Complaint [Doc. No. 1] on November 7, 2005 on behalf of himself, Neleh and Black Eagle, Inc. ("Black Eagle"). Plaintiff's Complaint named the "United States Government of New Jersey and their Officials" as defendants. Plaintiff alleged that his property was seized by defendants in connection with a criminal investigation and never returned. (See Plaintiff's Complaint at ¶¶1 and 5). On November 16, 2005, the Honorable Jerome B. Simandle informed Plaintiff that his Complaint was deficient and the case would "not be able to be processed or to go forward based upon the defective Complaint." (See Judge Simandle's November 16, 2005 letter [Doc. No. 2]). Judge Simandle directed Plaintiff to file an Amended Complaint clarifying the property that he alleged was seized and the parties that allegedly seized his property. Id.

Plaintiff filed his Amended Complaint on January 27, 2006 [Doc. No. 5]. Plaintiff's Amended Complaint alleged that Defendants Bayer, Chief Executive Officer/President of Bayer, Individual Board of Directors of Bayer, the United States of America, Robert J. Cleary, Andrew O Schiff, Edward R. Davis, Phillip L. Buvia, Michael T. Poulton, Unknown Individual Agents of the FBI, Rotan E. Lee, Esquire, and Timothy J.P. Quinlan conspired to deprive him of his real and personal property. (See Plaintiff's Amended Complaint at 5). Plaintiff claims that as a result of Bayer's suit, the FBI, along with the Cherry Hill, New Jersey Police Department, seized the property of Neleh on August 4, 2000. Plaintiff alleges that the FBI also seized the real, business and personal property of Black Eagle and Plaintiff.*fn1 Plaintiff claims that the third party complaint filed by Summit Bank against Neleh in the action brought by Bayer was dismissed without prejudice in June 2001, but that the seized property was never returned and he has not been compensated for the seized property.

All defendants named in Plaintiff's Amended Complaint with the exception of Lee were dismissed with prejudice via dispositive motions Judge Simandle decided on December 7, 2006 [Doc. Nos. 31 and 32]. The only remaining defendant in the case is Lee. Lee did not file a response to the Complaint. Judge Simandle also dismissed Neleh Company and Black Eagle as Plaintiffs because as corporations they could not be represented by Plaintiff, a non-attorney. (See Judge Simandle's December 7, 2006 Opinion at 10-11). In response to Defendants' dispositive motions Plaintiff attempted to assert "counterclaims" against Summit, Levy, Lee and Lee's Estate. Judge Simandle dismissed Plaintiff's "counterclaims" and directed him to file a motion pursuant to Fed. R. Civ. P. 15 to amend his complaint to add these additional parties. (See December 7, 2006 Opinion of Judge Simandle at 7, n. 3).

II. Standards of Review

Pursuant to Fed. R. Civ. P. 15(a), leave to amend pleadings "shall be freely given when justice so requires." Leave shall be freely given in the absence of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies in previous amendments, undue prejudice or futility of the amendment. Foman v. Davis, 372 U.S. 178, 182 (1962); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). "[A]bsent substantial or undue prejudice, denial must be grounded in bad faith or dilatory motives, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment." Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (quoting Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1196 (3d Cir. 1994)). An amendment sought pursuant to Rule 15(a) shall be permitted unless it would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

In determining the futility of an amendment, the Court "applies the same standard of legal sufficiency as applies under Rule 12(b)(6)." Medpointe Healthcare, Inc. v. Hi-Tech Pharm. Co., Inc., 380 F.Supp.2d 457, 462 (D.N.J. 2005) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d. Cir. 1997)); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). The Court must accept as true all factual allegations contained in the proposed amended complaint and any reasonable inferences that can be drawn from them. Brown v. Phillip Morris, Inc., 250 F.3d 789, 796 (3d Cir. 2001) (citing Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993)). A motion to dismiss may be granted, or in this case a proposed amendment deemed futile, "only if it is clear ...

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