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McCaskill v. Shoprite Supermarket

United States District Court, Second Circuit

August 7, 2013

SHOPRITE SUPERMARKET, et al., Defendants.

MATTHEW McCASKILL, Plaintiff, pro se

MARK DIANA, ESQ., Attorney for Defendants ShopRite and Ausiano


ANDREW T. BAXTER, Magistrate Judge.

Presently before the court is an amended complaint, filed by plaintiff in accordance with the order of the Honorable Lawrence E. Kahn, Senior U.S. District Court Judge, dated July 24, 2013. (Dkt. Nos. 47, 48). On July 24, 2013, Senior Judge Kahn granted defendants ShopRite's and Ausiano's motion to dismiss portions of plaintiff's original complaint and denied plaintiff's six[1] motions to amend. (Dkt. No. 47). The order further allowed plaintiff one more opportunity to move to amend his complaint in accordance with the legal principles discussed in Senior Judge Kahn's order. (Dkt. No. 47 at 28). For the following reasons, this court finds that plaintiff has failed to comply with Senior Judge Kahn's order. Therefore, I will order denial of plaintiff's "motion" to amend, and in accordance with Judge Kahn's direction, will order dismissal of the amended complaint with prejudice.


I. Facts and Procedural History

Plaintiff filed his original complaint on March 4, 2013. (Dkt. No. 1). Plaintiff filed the original complaint pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), [2] loosely alleging that defendant ShopRite Supermarket discriminated against him because of his race, sex, and "insubordination." (Compl. at ΒΆΒΆ 4, 6). Plaintiff alleges that he was terminated from his job as a result.[3]

After noting various deficiencies in the complaint, I granted plaintiff's motion to proceed in forma pauperis ("IFP") and ordered service of the complaint due to the liberality with which pro se complaints must be treated. Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (citing inter alia Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Only defendants ShopRite and Ausino appear to have been served in this case, and they have appeared through counsel.

On May 6, 2013, defendants ShopRite and Ausiano filed a motion to dismiss plaintiff's common law claims of Intentional Infliction of Emotional Distress ("IIED") and Defamation. (Dkt. No. 22). After the motion to dismiss was filed, plaintiff began a barrage of motions to amend. (Dkt. No. 24, 25, 34, 35, 36, 43). In his lengthy July 24, 2013 order, Senior Judge Kahn denied all of plaintiff's motions to amend and granted the defendants' motion to dismiss the plaintiff's common law claims with prejudice. At the end of Senior Judge Kahn's order, he gave plaintiff one more chance to file a proper motion to amend his complaint, which would include a proposed amended complaint for the court's review. Judge Kahn also reviewed each of plaintiff's prior proposed amended complaints and found that all but one claim were subject to dismissal "with prejudice." (Dkt. No. 47 at 28-29).

In the order, Judge Kahn stated that if plaintiff made a motion to amend, he could not seek to join UFCW Local ("the Union") or Melissa Stiles as defendants. (Dkt. No. 47 at 28). The order further stated that plaintiff could not bring a Title VII hostile environment claim or an IIED claim against "Defendants." ( Id. ) Judge Kahn stated that the "motion" must comply with Fed.R.Civ.P. 15 and Local Rule 7.1(a)(4) in that a motion to amend must be accompanied by a complete proposed amended complaint which includes all the claims plaintiff wishes to bring and any facts that he wishes to allege. ( Id. )

II. Legal Standards

Fed. R. Civ. P. 15(a) provides that the court should grant leave to amend "freely... when justice so requires." While a pro se plaintiff's submissions are to be afforded the greatest liberality, [4] a motion to amend may be denied where it appears that granting leave to amend is unlikely to be productive or the amendment is futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted).

III. Amended Complaint

Judge Kahn has already reviewed several of plaintiff's proposed amended complaints and has found most of the claims meritless and futile. He afforded plaintiff one more opportunity to move to amend to cure the deficiencies in the claims that were dismissed "without prejudice." Unfortunately, plaintiff has not heeded Judge Kahn's order. His latest document is not a "motion" to amend, it is simply an "amended complaint." (Dkt. No. 48). Even if the court were to excuse the fact that plaintiff did not make a proper "motion"[5] to amend, the document that he filed as the amended ...

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