United States District Court, D. New Jersey
MEMORANDUM OPINION & ORDER
L. HILLMAN, U.S.D.J.
this matter concerns claims by Plaintiffs that Defendants
conspired to steal or convert Plaintiffs' funds deposited
in an escrow account at PNC Bank intended as a good faith
deposit for Plaintiffs' purchase of Home Mortgage
currently pending before the Court is Plaintiffs' motion
for leave to file a third amended complaint (Docket No. 68);
Defendant PNC Bank has filed a letter stating that it does
not oppose Plaintiffs' motion (Docket No. 71); and
Defendant Donald Sisson, who is appearing pro se,
filed an answer to Plaintiffs' proposed third amended
complaint (Docket No. 72); and
amendments to pleadings are governed by Federal Civil
Procedure Rule 15, which provides that the Court
“should freely give leave when justice so requires,
” Fed.R.Civ.P. 15(a)(2), and an amendment must be
permitted in the absence of undue delay, bad faith, dilatory
motive, unfair prejudice, or futility of amendment.
Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002) (citing Foman v. Davis, 371 U.S. 178,
182 (1962)); and
the Court finds no reason to not grant Plaintiffs' motion
to file a third amended complaint; and
also pending before the Court is Sisson's motion (1) to
dismiss Plaintiffs' claims against him because Plaintiffs
have “not proven any of the allegations contained in
any of previous or current complaints filed under this Civil
award judgment in his favor on those claims, and (3) award
him damages on his counterclaims (Docket No. 73,
“MOTION TO DISMISS DEFENDANT DONALD E SISSON AND AWARD
as the Court noted in consideration of prior motions to
dismiss filed by Sisson regarding the previous versions of
Sisson filed an answer to Plaintiff's original complaint
and asserted a counterclaim. (Docket No. 5.) After Plaintiffs
filed their first amended complaint and their second amended
complaint, Sisson filed two motions to dismiss. (Docket No.
16, 17.) Sisson's motions contest the substance of
Plaintiffs' allegations and relate his version of what
occurred. In that way, Sisson's motions are more akin to
summary judgment motions pursuant to Fed.R.Civ.P. 56, rather
than motions to dismiss pursuant to Fed.R.Civ.P. 12.
See Fed.R.Civ.P. 12(d) (“If, on a motion under
Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule
56.”). The Court, however, will not convert
Sisson's motion into one for summary judgment because it
is too early in the case to resolve any disputed facts.
See Petcove v. Public Service Electric & Gas,
2019 WL 137652, at *3 (D.N.J. 2019) (quoting Kurdyla v.
Pinkerton Sec., 197 F.R.D. 128, 131 (D.N.J. 2000))
(“A court should not convert a motion . . . when little
or no discovery has occurred.”).
(Docket No. 57 at 7 n.4.); and
the Court finds that the same analysis applies to
Sisson's current motion to dismiss; and
with regard to Sisson's filing of his answer and
counterclaim to Plaintiffs' proposed third amended
complaint directly after Plaintiffs filed their motion for
leave to file a third amended complaint, rather than waiting
until after Plaintiffs' third amended complaint was
approved by the Court, because of Sisson's pro
se status, the Court will deem Sisson's answer to
the proposed third ...