The opinion of the court was delivered by: Kugler, United States District Judge
Presently before the Court is a motion by Plaintiff Michael Ikelionwu ("Plaintiff") for summary judgment against Defendant John Nash ("Defendant") and for leave to amend his complaint, which seeks relief pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80. Further before the Court is a cross-motion by Defendant to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2). For the reasons set forth below, this Court will grant Plaintiff's motion for leave to file an amended complaint and deny Plaintiff's motion for summary judgment and Defendant's motion to dismiss.
Plaintiff, a prisoner, filed a notice of claim with the Bureau of Prisons ("BOP") alleging that certain property of his had been lost during his transfer from F.C.I. Fort Dix in New Jersey to F.C.I. Allenwood in Pennsylvania. The BOP offered to settle Plaintiff's claim by memorandum dated July 14, 2005. The memorandum also notified Plaintiff that if he rejected the settlement offer, he could sue the United States in U.S. District Court within six months. Plaintiff commenced this action against Defendant, the warden of F.C.I. Fort Dix, in the Middle District of Pennsylvania on December 19, 2005. On February 1, 2006, the Honorable John E. Jones III, U.S. District Judge for the Middle District of Pennsylvania, entered an Order transferring the case to this District. Initially, Plaintiff was granted in forma pauperis ("IFP") status; however, Defendant filed a motion to dismiss alleging Plaintiff was not entitled to proceed IFP due to his history of filing complaints that fail to state a claim. This Court agreed, revoking Plaintiff's IFP status, but denied the motion to dismiss because Plaintiff had subsequently paid the filing fee.
On June 22, 2007, Plaintiff filed his motion for summary judgment based on Defendant's alleged failure to defend against his lawsuit following the Court's denial of Defendant's motion to dismiss. Defendant responded, opposing Plaintiff's motion and cross-moving for dismissal for lack of subject matter jurisdiction. Later, Plaintiff filed a motion for leave to amend his complaint to add the United States as a defendant, which Defendant opposes.
Where a plaintiff has already amended his complaint or defendants have filed a responsive pleading, the plaintiff may further amend the complaint only with leave of the court. Fed. R. Civ. P. 15(a); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). Under Rule 15(a), such leave should be "freely given when justice so requires." Fed. R. Civ. P. 15(a); Foman v. Davis, 271 U.S. 178, 182 (1962) (instructing courts to permit amendments freely to afford plaintiffs the opportunity to test claims on the merits).
A. Arguments of the Parties
Plaintiff moves for summary judgment because Defendant did not respond to his complaint for more than sixty days after the Court denied Defendant's prior motion to dismiss. Defendant maintains that he was not obligated to respond because Plaintiff has not effected service on the United States Attorney or the Attorney General of the United States pursuant to Federal Rule of Civil Procedure 4(m). In support of his cross-motion, Defendant argues that, in fact, this Court lacks jurisdiction over Plaintiff's claim because Plaintiff fails to name the United States as the defendant in accordance with the limited waiver of sovereign immunity in the FTCA.
Plaintiff did not formally respond to Defendant's opposition and cross-motion with a reply; however, Plaintiff filed a motion for leave to amend his complaint in which he addresses Defendant's opposition. Specifically, Plaintiff argues that the Court should not consider Defendant's motion because it was filed late and that Defendant did not have excusable neglect required for an enlargement of time under Rule 6(b)(2).*fn1 Plaintiff argues further that, being pro se, he did not realize that he needed to name the United States in his action and that he should be excused for the failure to properly effect service because he did everything in his control to ensure that the United States Marshal for the District of New Jersey properly serve the summons and complaint.
In opposition to Plaintiff's request for leave to cure the jurisdictional deficiency of his complaint, Defendant contends that Plaintiff did in fact have notice that the United States was the proper party based on the statement provided to him in the BOP's response to his notice of claim. (See Def.'s Opp'n & Cross-Mot. Ex. 2.) In addition, Defendant argues that Plaintiff should not be permitted to amend his complaint because more than six months have elapsed since the BOP denied his claim and Plaintiff's cannot take advantage of the relation back provision of Rule 15(c), since service of the summons and complaint was never completed on the United States Attorney or Attorney General.
B. Federal Tort Claims Act
The FTCA provides that the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private ...