Filed: Aug. 07, 2018
Latest Update: Aug. 07, 2018
Summary: REPORT & RECOMMENDATION (Doc. 18, Plaintiff's Motion to Dismiss) WILLIAM I. ARBUCKLE , Magistrate Judge . BACKGROUND On December 29, 2017, Plaintiff Leslie Paul Howarth ("Plaintiff Howarth") initiated this action under the Americans with Disabilities Act against State Representative Martin Causer ("Defendant Causer") by filing a Complaint in which he alleges that he attempted to access Defendant Causer's office in Coudersport, Pennsylvania in November 2017, but was unable to do so because
Summary: REPORT & RECOMMENDATION (Doc. 18, Plaintiff's Motion to Dismiss) WILLIAM I. ARBUCKLE , Magistrate Judge . BACKGROUND On December 29, 2017, Plaintiff Leslie Paul Howarth ("Plaintiff Howarth") initiated this action under the Americans with Disabilities Act against State Representative Martin Causer ("Defendant Causer") by filing a Complaint in which he alleges that he attempted to access Defendant Causer's office in Coudersport, Pennsylvania in November 2017, but was unable to do so because t..
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REPORT & RECOMMENDATION (Doc. 18, Plaintiff's Motion to Dismiss)
WILLIAM I. ARBUCKLE, Magistrate Judge.
BACKGROUND
On December 29, 2017, Plaintiff Leslie Paul Howarth ("Plaintiff Howarth") initiated this action under the Americans with Disabilities Act against State Representative Martin Causer ("Defendant Causer") by filing a Complaint in which he alleges that he attempted to access Defendant Causer's office in Coudersport, Pennsylvania in November 2017, but was unable to do so because there was no handicap parking and because the ramp leading up to the office was too steep and slippery, and had inadequate hand rails. (Doc. 1).
On January 26, 2018, Defendant Causer filed an Answer. (Doc. 10). Then, on February 9, 2018, filed a Third Party Complaint against Andrew R. Chapell and Becky L. Chapell, the owners of the building where Defendant Causer rents his Coudersport office space. (Doc. 11). On April 16, 2017 the Third Party Defendants filed an Answer to the Third Party Complaint (Doc. 17).
On April 19, 2018, Plaintiff Howarth filed a Motion to Dismiss in which he states "[d]ue to new information the Plaintiff wishes to file a Motion to Dismiss his Complaint." (Doc. 18). Along with his Motion, Plaintiff filed a Brief in Support. (Doc. 9). No certificate of concurrence was filed. On August 3, 2018 I entered an Order (Doc. 21) seeking a response from all Defendants. Defendant Causer (Doc. 22), and Third Party Defendants Andrew and Becky Chapell (Doc. 23), have filed responses to Plaintiff's Howarth's Motion, each indicating that they do not oppose the motion to dismiss his complaint and agreeing that the Court should also dismiss the Third Party Complaint and close the case.
DISCUSSION
Rule 15 governs amended pleadings and applies in this case. The rule states:
Rule 15. Amended and Supplemental Pleadings
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
The Plaintiff is the master of his complaint and should be allowed to withdraw it when there is no prejudice to the opposing parties. In this case the Defendants have consented to the Plaintiff's request to dismiss his complaint and the cross complaint. This is a case where the court should freely give leave and grant the Plaintiff's Motion to dismiss his own complaint.
RECOMMENDATION
For the reasons stated I recommend:
1. The Plaintiff's Motion to Dismiss his own Complaint be granted;
2. The Third Party Complaint also be Dismissed and the case closed.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
