Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-01530-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

JOHN S. SHIPLEY, Plaintiff pro se, v. B&F TOWING COMPANY and OWNERS, VERNE ORNDORFF, NEW CASTLE COUNTY DEPARTMENT OF LAND USE OFFICE OF CODE ENFORCMENT, STATE OF DELAWARE, JUSTICE OF THE PEACE COURT 11, and JUDGE T. ROGER BARTON, Defendants.

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Case No. 04-1530-JJF

DEFENDANTS VERNE ORNDORFF AND NEW CASTLE COUNTY DEPARTMENT OF LAND USE OFFICE OF CODE ENFORCEMENT'S REPLY TO PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO AMEND THE COMPLAINT Pursuant to Fed. R. Civ. P. 15(a), Defendants file this Response in Opposition to Plaintiff's Motion to Amend the Complaint for the reasons that follow: 1. On July 13, 2006, this Honorable Court granted Plaintiff's initial Motion for

Extension of Time to Amend his original Complaint, which was filed on December 20, 2004. 2. On July 28, 2006, Plaintiff filed the "Ammendment [sic] To The Complaint"

alleging that both Officer Verne Orndorff and the New Castle County Department of Land Use Office of Code Enforcement violated the Thirteenth and Fourteenth Amendments, the Privileges and/or Immunities Clauses, and 42 U.S.C. §§ 1981, 1982, 1983, 1985(3), and 1986. Officer Verne Orndorff (hereinafter "Officer Orndorff") received a copy of Plaintiff's Amended

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Complaint via certified mail on November 30, 2006, over one hundred and twenty-five days after the Amended Complaint was filed with this Honorable Court. 3. On December 14, 2006, Defendants filed a Motion to Dismiss the Plaintiff's

Amended Complaint based on the Plaintiff's failure to properly serve the Defendants, failure to file suit against the proper party, and failure to state a claim upon which relief can be granted. 4. On January 19, 2007, over one month after the Defendants' Motion to Dismiss

was filed, the Plaintiff filed a "Motion in Opposition of Defendants' Verne Orndorff and New Castle County Department of Land Use Code Enforcement Office and New Castle Court No#11 Roger T. Barton of His Motion to Dismiss" (hereinafter "Answering Brief"). In addition to being filed over one month after the Defendants' filed the Motion to Dismiss, Plaintiff's Answering Brief was not mailed to any of the attorneys at the New Castle County Law Department. Instead, Plaintiff mailed a copy of the Answering Brief to Officer Orndorff. On January 29, 2007, the Answering Brief was docketed by the Clerk of this Honorable Court and email notice of "Activity in Case" was sent to First Assistant County Attorney, Megan Sanfrancesco. 5. Although leave to amend pleadings out of time under Fed. R. Civ. P. 15(a) is

generally at the discretion of the trial court, a court can deny a motion to amend where the movant has unduly delayed in bringing the motion. Cureton v. National Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001). Moreover, "[t]he trial Court's discretion under Rule 15 . . .must be tempered by considerations of prejudice to the non-moving party, for undue prejudice is `the touchstone for the denial of leave to amend.'" Heyl & Patterson, Int'l, Inc. v. F.D. Rich Housing of the Virgin Islands, Inc., 663 F.2d 419, 425 (3d. Cir. 1981) (quoting Cornell and Co., Inc. v. Occupational Safety and Health Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978)). The

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doctrine of futility similarly allows the court to refuse any amendment that fails to state a cause of action. Fatir v. Dowdy, 2002 WL 2018824 (D. Del.) (citing Cureton, 252 F.3d at 273). 6. Plaintiff's Motion for Extension falsely indicates that the Defendants' Reply to

Plaintiff's Motion stated that the Delaware State Police "gave the orders to remove "John Shipley's vehicles from his private property.." See Plaintiff's Motion for Extension, Para. 2. Neither Defendants' Motion to Dismiss nor the Defendants' Reply to Plaintiff's Motion made any reference to the Delaware State Police. The Plaintiff's attempt to amend his Complaint serves as method to avoid addressing any of the issues referenced in the Defendants' Motion to Dismiss, and as a method to avoid the ultimate dismissal of this matter. 7. The Plaintiff has failed to allege any facts that were previously unknown to him

when he filed his Answer to the Defendants' Motion to Dismiss. The Plaintiff has once again used broad false assertions to support his pleadings. The Defendants' would be unduly

prejudiced by continuing to have to defend a suit that fails to state a claim, especially when the Defendants' have a pending Motion to Dismiss before this Honorable Court. WHEREFORE, Defendants respectfully request that this Honorable Court deny Plaintiff's Motion for Extension of Time to Amend the Complaint. Respectfully submitted,

/s/ Harshal Purohit_________ Harshal Purohit, No. 4593 Megan K. Sanfrancesco, No. 3801 Michele D. Allen, No. 4359 New Castle County Law Department 87 Read's Way New Castle, DE 19720 (302) 395-5272

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Attorneys for Defendants, Verne Orndorff and New Castle County Department of Land Use Office of Code Enforcement DATED: March 28, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JOHN S. SHIPLEY, Plaintiff pro se, vi. B&F TOWING COMPANY and OWNERS, VERNE ORNDORFF, NEW CASTLE COUNTY DEPARTMENT OF LAND USE OFFICE OF CODE ENFORCMENT, STATE OF DELAWARE, JUSTICE OF THE PEACE COURT 11, and JUDGE T. ROGER BARTON, Defendants. : : : : : : : : : : : : : : : :

Case No. 04-1530-JJF

CERTIFICATE OF SERVICE I, Harshal Purohit, Assistant County Attorney, hereby certify that on the 28th day of March, 2007, two copies of the foregoing "DEFENDANTS VERNE ORNDORFF AND NEW CASTLE COUNTY DEPARTMENT OF LAND USE OFFICE OF CODE ENFORCEMENT'S REPLY TO PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO AMEND THE COMPLAINT" and "DEFENDANTS VERNE ORNDORFF AND NEW CASTLE COUNTY DEPARTMENT OF LAND USE OFFICE OF CODE ENFORCEMENT'S REPLY TO PLAINTIFF'S MOTION TO STAY" were served via U.S. Mail, postage prepaid, to the party at the following addresses: To: John Shipley 609 Wildel Avenue New Castle, DE 19720 /s/ Harshal Purohit_________ Harshal Purohit, No. 4593 Michele D. Allen, No. 4359 Megan K. Sanfrancesco, No. 3801 New Castle County Law Department 87 Read's Way New Castle, DE 19720 (302) 395-5142 Attorney for Defendants, Verne Orndorff and New Castle County Department of Land Use Office of Code Enforcement Dated: March 28, 2007

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