Shipley v. Orndoff

• Decision Date: 07 June 2007
• Docket Number: Civil Action No. 04-1530-JJF.
• Citation: 491 F.Supp.2d 498
• Parties: John S. SHIPLEY, Plaintiff, v. Verne ORNDOFF, Judge T. Roger Barton, New Castle County Department of Land Use Office of Code Enforcement, and State of Delaware, Justice of the Peace Court 11, Defendants.
• Court: U.S. District Court — District of Delaware

Page 498

491 F.Supp.2d 498

John S. SHIPLEY, Plaintiff, v. Verne ORNDOFF, Judge T. Roger Barton, New Castle County Department of Land Use Office of Code Enforcement, and State of Delaware, Justice of the Peace Court 11, Defendants.

Civil Action No. 04-1530-JJF.

United States District Court, D. Delaware.

June 7, 2007.

COPYRIGHT MATERIAL OMITTED

John S. Shipley, New Castle, DE, Pro se Plaintiff.

Harshal Purohit, Esquire, New Castle County Law Department, New Castle, DE, Attorney for Defendants Verne Orndoff and New Castle County Department of Land Use Office of Code Enforcement.

MEMORANDUM OPINION

FARNAN, District Judge.

Presently before the Court are Plaintiff's Motion For Reconsideration, Motion For Extension Of Time To Amend and Motion To Stay, and Defendants' Responses. (D.I.42, 52, 53, 54, 56.) Also before the Court are Defendants Verne Orndorff¹ and New Castle County Department of Land Use Office of Code Enforcement's Motion To Dismiss and Motion To Strike, Plaintiff's Responses and Defendants' Replies thereto. (D.I.44, 47, 50, 59, 60.) For the reasons set forth below, the Court will grant the Motion To Dismiss (D.I.44) and deny will all other Motions (D.I.42, 52, 53, 60).

I. BACKGROUND

The original Complaint named as Defendants B & F Towing Company ("B & F") and its Owners. (D.I.1.) B & F filed a Motion For Summary Judgment and judgment was entered in favor of Defendants and against Plaintiff on June 13, 2006. (D.I.33.) The Court's June 13, 2006 Memorandum Opinion provides the following background. (D.I.31.)

On October 15, 2004, New Castle County Code Enforcement Inspector Verne Orndorff ("Orndorff") went to Plaintiff's home due to complaints about the condition of Plaintiff's property. While there, Orndorff discovered two unregistered vehicles in the driveway, surrounded by weeds and covered with tree limbs, in violation of the New Castle County Code. Orndorff posted a violation notice on Plaintiff's property. The notice gave Plaintiff seven days to remedy the violations and gave a telephone number Plaintiff could call if he had any questions or concerns.

Orndorff returned to the property on October 22, 2004, found that the violations had not been remedied, and tagged the vehicles for towing. Plaintiff's vehicle was towed from his driveway two days later. Orndorff subsequently filed a complaint with the State of Delaware Justice of the Peace Court 11. Plaintiff was found guilty of Code violations and received a monetary fine.

Following entry of judgment for the B & F Defendants, Plaintiff filed an Amended Complaint on July 28, 2006, again naming B & F as a Defendant and also adding as Defendants Orndorff, Judge T. Roger Barton ("Judge Barton"), New Castle County Department of Land Use Office of Code Enforcement ("NCC Land Use Office"), and the State of Delaware Justice of the Peace Court 11 ("JP Court"). Plaintiff filed his Amended Complaint pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1985(3), and 1986. He alleges violations of the Privileges and Immunities Clauses of Article 4, as well as the Thirteenth and Fourteenth Amendments, and includes violations of his right to equal protection and due process. He also alleges malicious prosecution.

The Complaint and Amended Complaint allege Plaintiff is a member of the Negro race and the owner of certain property located in New Castle, Delaware. Plaintiff alleges his car was taken from his private property without his knowledge or consent by B & F who acted in and for New Castle County, Delaware. Plaintiff alleges he was deprived of his property without equal protection and due process of the laws and in violation of the Privileges and Immunities Clauses, and further that Defendants conspired to violate those rights. He further alleges he was discriminated against on the basis of his race. Finally, Plaintiff alleges he was the subject of malicious prosecution and forced to defend himself in a lawsuit.

Plaintiff specifically alleges that Orndorff unlawfully attached his vehicle causing it to be towed by B & F. He alleges that Judge Barton refused to allow Plaintiff a jury trial and that Judge Barton entered judgment against Plaintiff.

When B & F was renamed in the Amended Complaint it moved for dismissal. (D.I.40.) Plaintiff did not respond to the Motion. The Motion was granted, with the Court's October 30, 2006 Order noting that final judgment was entered in favor of B & F and against Plaintiff on all of Plaintiffs claims and, that Plaintiff was allowed to amend his Complaint because an amendment would not prejudice B & F since it has been granted summary judgment. (D.I.41.) Plaintiff moves for reconsideration of the Order granting B & F's Motion To Dismiss.

The Amended Complaint adding new defendants was filed on July 28, 2006, and summons issued on November 22, 2006, for Orndorff, NCC Land Use Office, Judge Barton, and the JP Court. On January 19, 2007, Plaintiff filed return receipt cards for the four new Defendants, indicating delivery of summons by U.S. Mail occurred on November 30, 2006. (D.I.48, 49.) Defendants Orndorff and NCC Land Use Office move for dismissal for insufficiency of process pursuant to Rule 12(b)(5) and for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (D.I.44.)

II. DISCUSSION

A. Plaintiff's Motion For Reconsideration

Plaintiff seeks reconsideration of the Court's October 30, 2006 Order granting B & F's Motion To Dismiss the Amended Complaint. (D.I.42.) Plaintiff explains that he has suffered from memory loss "off and on" since April 21, 2004, mild after receiving the October 30, 2006 Order he checked his files and found his assistant neglected to mail the Amended Complaint to B & F. Plaintiff asks he be allowed to file a response to B & F's Motion to Dismiss.

DJ By Plaintiffs admission, he failed to respond to B & F's Motion To Dismiss. Nothing in his Motion supports reconsideration of the Court's October 30, 2006 Order. The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). A motion for reconsideration may be granted if the moving party shows: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court issued its order; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999).

Plaintiff does not argue there was an intervening change in the controlling law or the availability of new evidence that was not available when the October 30, 2006 order was issued. Rather, he simply wants additional time to respond to B & F's Motion To Dismiss. This is an insufficient ground to grant reconsideration. Therefore, the Court will deny Plaintiff's Motion To Reconsider The Order Dated October 30, 2006. (D.I.42.)

B. Dismissal Under Rule 12(b)(5)

Defendants Orndorff and NCC Land Use Office move for dismissal on the basis of insufficiency of service of process. Defendants argue that they were not served within 120 days as is required by the Federal Rules of Civil Procedure. Defendants further argue that Plaintiff's mode of service did not comport with federal and state service rules. Plaintiff responds that "[t]he [C]omplaint must not be dismissed for insufficiency of service process [sic]" and "[t]he [C]omplaint was served in a proper manner as Per Rule # 4 of Federal Civil Procedure." (D.I.47.) In a belated response to the Motion To Dismiss (D.I.59)², Plaintiff argues that the Amended Complaint was hand-delivered to the County and Harshal Purohit ("Purohit"), counsel for Defendants Orndorff and NCC Land Use Office, within the 120 day time period, but Purohit refused to accept service. Defendants reply that Purohit was contacted by the receptionist at the Government Center to meet an unidentified woman regarding one of his criminal cases. (D.I.60.) The woman asked Purohit to sign a document and he refused because he determined that the documents were unrelated to the pending criminal matter. Id. Plaintiff also indicates that he sent the Amended Complaint by certified mail, it was received on November 30, 2006, and by his calculations that date is within the 120 day time period.

A defendant may file a motion to dismiss pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure when a plaintiff fails to properly serve him or her with the summons and complaint. Rule 4(m) of the Federal Rules of Civil Procedure states that "[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action." Fed.R.Civ.P. 4(m). Rule 4(e) provides for service upon individuals pursuant to the law of the state in which the district court is located, or in which service is effected ... or by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. Fed.R.Civ.P. 4(e). Similarly, Delaware law provides for service of an individual by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering copies thereof to an agent authorized by appointment or by law to receive service of process. Del.Super. Ct. R. Civ. P. 4(f)(1)(I). Finally, Rule 4(j) of the Federal Rules of Civil Procedure provides that service upon a state, municipal corporation, or...