Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-01396-JJF

Document 18

Filed 04/26/2005

Page 1 of 2

M. JANE BRADY ATTORNEY GENERAL NEW CASTLE COUNTY Carvel State Building 820 N. French Street Wilmington, DE 19801 Criminal Division (302) 577-8500 Fax: (302) 577-2496 Civil Division (302) 577-8400 Fax: (302) 577-6630 TTY: (302) 577-5783 PLEASE REPLY TO:

STATE OF DELAWARE
DEPARTMENT OF JUSTICE
KENT COUNTY 102 West Water Street Dover, DE 19901 Criminal Division (302) 739-4211 Fax: (302) 739-6727 Civil Division (302) 739-7641 Fax: (302) 739-7652 TTY: (302) 739-1545 SUSSEX COUNTY 114 E. Market Street Georgetown, DE 19947 (302) 856-5352 Fax: (302) 856-5369 TTY: (302) 856-2500

April 26, 2005 The Honorable Joseph J. Farnan, Jr., United States District Court for the District of Delaware Lock Box 27 844 N. King Street Wilmington, De 19801 Re: Daniel L. Moore v. Dept. of Correction C.A. No. 04-1396-JJF Dear Judge Farnan, I am in receipt of Mr. Moore's motion to amend filed on or about April 15, 2005. (D.I.#17). Defendants filed a dispositive motion on or about December 17, 2004, (D.I.#9) while plaintiff filed an answering brief on or about January 18, 2005. (D.I.#11). Defendants oppose plaintiff's motion to amend for reasons stated herein. Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend a pleading "once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. P. 15(a). After an answer has been filed, the plaintiff may amend only with leave of court or with written consent of the opposing party, but leave shall be given freely when justice so requires." Id. "Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility." Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). The plaintiff's motion to amend demonstrates undue delay and more importantly is futile. Plaintiff's claims cover the period of 1997-1998 while he was incarcerated at Gander Hill. Plaintiff's complaint was filed in October, 2004, well beyond the two-year limitation period set forth in 10 Del. C. §8119. Consequently, plaintiff's allegations are barred by the statute of limitations.

Case 1:04-cv-01396-JJF

Document 18

Filed 04/26/2005

Page 2 of 2

The Honorable Joseph J. Farnan, Jr. April 26, 2005 Page Two

Plaintiff's motion to amend requests an increase in monetary damages while also alleging the following state tort claims: character assassination, defamation of character, slander, verbal harassment and mental distress. Since this court has original jurisdiction over plaintiff's complaint, it "shall have supplemental jurisdiction over all other claims that are so related to the original jurisdiction claims." 28 U.S.C.§1367(a). In the event defendants' motion to dismiss is granted as to the federal claims, this Court should decline to adjudicate plaintiff's state claims pursuant to §1367(c)(3). It is well, established that if the basis for original jurisdiction in United States District Court fails, then absent extraordinary circumstances, any supplemental state law claims should also be dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 726,27 (1966). ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."); Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.1995)("Under Gibbs jurisprudence, where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so."). Thank you for Your Honor's consideration of and cooperation in this matter. Respectfully, /s/ Richard W. Hubbard_ Deputy Attorney General Bar ID#2442 State of Delaware Department of Justice 820 N. French Street, 6th Fl., Wilmington, De 19801 (302) 577-8400 [email protected] xc: Clerk of the District Court Mr. Daniel Moore 22 Ryan Avenue New Castle, De 19720