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Davis v. Two Unknown Named Agents of the Federal Bureau of Investigation


July 7, 2009


The opinion of the court was delivered by: Patty Shwartz United States Magistrate Judge


This matter having come before the Court by way of motion of the plaintiff for leave to file a Second Amended Complaint*fn1 to add the City of Allentown, Pa., and "possibly" the United States of America as defendants, and to add claims under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2680(h) against the "Federal defendants" and "possibly" the United States, as well as "New Jersey State Tort Claim[s]" against the City Allentown, Pa., as the employer of certain detectives;*fn2

and the Court having considered the parties' submissions;*fn3

and the Court having decided this motion without oral argument pursuant to Fed. R. Civ. P. 78 and Local Civ. R. 78.1;

and for the reasons set forth herein, the motion being untimely under Fed. R. Civ. P. 16, procedurally flawed under L. Civ. R. 7.1, and futile under Fed. R. Civ. P. 12 and 15;

and the motion to for leave to file an Amended Complaint having been submitted on June 11, 2009, eleven months after the July 11, 2008 deadline to file motions to amend pleadings or join parties, see Docket Entry No. 131; Order dated April 21, 2008;

and Fed. R. Civ. P 16 mandating that Scheduling Orders be issued to allow "judicial control over [the] case" and to "streamlin[e] [the case], making the trial process more efficient, less costly, as well as improving and facilitating the opportunities for settlement," Newton v. A.C.&S., Inc., 918 F.2d. 1121, 1136 (3d Cir. 1990);

and to entertain plaintiff's motion would require a modification of the Amended Scheduling Order;

and good cause being required to modify a Scheduling Order, Fed. R. Civ. P. 16;

and the requesting party must show that the deadline "cannot reasonably be met despite the diligence of the party seeking the extension," Fed. R. Civ. P. 16, Advisory Committee's Note, on Subdivision (b);

and the Court concluding that the plaintiff has not presented any facts to show good cause to amend the Scheduling Order and thus the motion is untimely;*fn4

and the Local Civil Rules of the United States District Court for the District of New Jersey providing that "[u]pon filing of a motion for leave to file an amended complaint . . . the moving party shall attach to the motion a copy of the proposed pleading," L. Civ. R. 7.1(f);

and the plaintiff having failed to comply with L. Civ. R. 7.1(f);*fn5

and the plaintiff having failed to show that he is entitled to amend his pleading under Fed. R. Civ. P. 15*fn6 because his proposed claims against the federal defendants, the City of Allentown, and the United States are futile;

and the law providing that an amendment will be considered futile if it "is frivolous or advances a claim or defense that is legally insufficient on its face," Harrison Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D. 463, 468 (D.N.J. 1990) (citations and quotations omitted);

and in determining whether an amendment is "insufficient on its face," courts employ the Rule 12(b)(6) motion to dismiss standard, In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434-35 (3d Cir. 1997) (citations omitted);

and a motion to dismiss being granted under Rule 12(b)(6) if the plaintiff is unable to articulate "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also id. at 562-3 ("retiring" the rule first articulated in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"); Rodriguez v. Fajardo, Civ.No. 06- 4996, 2007 WL 1959254, *4 (D.N.J. July 3, 2007); Charles v. Lawyers Title Ins. Corp., Civ. No. 06-2361, 2007 WL 1959253, *2 (D.N.J. July 3, 2007);

and while detailed factual allegations being unnecessary to survive a Rule 12(b)(6) motion, a pleader's "obligation to provide the grounds of his entitlement to relief requires more than labels[,] conclusions, and a formulaic recitation of the elements of a cause of action" and requires that the "[f]actual allegations . . . be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555; see Showalter v. Brubaker, Civ. No. 07-2950, 2008 WL 2397528, at *1 (3d Cir. June 13, 2008)(unpublished); Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(stating that the Twombly pleading standard requires that "factual allegations must be enough to raise a right to relief above the speculative level and, to state a claim, the complaint [must embody] . . . enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement but instead calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.");

and when examining the sufficiency of a litigant's pleading under Rule 12(b)(6), courts consider the proposed pleading and view the allegations set forth therein as true and in the light most favorable to the party asserting them, see Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004) (citations omitted);

and the Court having liberally construed plaintiff's pro se motion, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and having evaluated the proposed amendments under the above standard, the proposed amendments are futile;*fn7

and for the reasons set forth herein;

and for good cause shown,

IT IS on this 7th day of July, 2009

ORDERED that plaintiffs' motion for leave to file an Amended Complaint [Docket Entry No. 131] is denied;

IT IS FURTHER ORDERED that the request for the appointment of pro bono counsel shall not be considered because an identical request is before Judge Hochberg; and

IT IS FURTHER ORDERED that to the extent the contents of the motion are being offered as opposition to the pending motion to dismiss the plaintiff shall advise Judge Hochberg of the portions of the submission he seeks to offer as opposition to the motion to dismiss.

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