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. INTRODUCTION
The inability during the allotted discovery period to obtain
information from a defendant regarding pertinent issues is obviously
prejudicial to a plaintiff in his attempt to prosecute his claims and
obtain prompt resolution of his lawsuit. See Adams v. Trustees, N.J.
Brewery Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994) (prejudice
encompasses deprivation of information from non-cooperation with
discovery as well as the need to expend resources to compel
discovery).
The meritoriousness of a claim or defense is to be determined from the
face of the pleadings. See C.T. Bedwell Sons v. International Fidelity
Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988); Poulis v. State Farm Fire
and Cas. Co., 747 F.2d 863, 870 (3d Cir. 1984). Here, the defendant
never filed an answer to the Amended Complaint and thus have not
presented even a facially meritorious defense.
Please note: On September 29, 2004, discovery closed without
the defendant communicating any request, scheduling any deposition,
and the like. Therefore, a motion for summary judgment is ripe for
determination.
II. EXHIBIT ATTACHED TO DEFENDANT'S RESPONSE
The defendant has acknowledged the following with its current
attachment (Exhibit):
(1) This issue involves Rule 15(a) of the Federal Rules of Civil
Procedure which states, in relevant part, that "[a] party may amend
the party's pleading once as a matter of course at any time before a
responsive pleading is served...." Fed. R. Civ. P. 15(a). That is, a
motion to dismiss is not "a responsive pleading." Centifanti v. Nix,
865 F.2d 1422, 1431 n.9 (3d Cir. 1989) (holding that a plaintiff is
entitled to amend his complaint because neither a motion to dismiss
nor a motion for summary judgment is a responsive pleading under Rule
15(a)). See also Washington v. James, 782 F.2d 1143, 1138-39 (2d Cir.
1986)(stating that a party may amend the complaint while a motion to
dismiss is pending); and Vernell v. united States Postal Service, 819
F.2d 108, 110 (5th Cir. 1987)(noting that "[a] motion to dismiss is
not a responsive pleading and therefore does not extinguish the right
to amend an initial pleading").
(2) The defendant's Motion to Dismiss failed to make any substantive
argument and addressed only the original complaint (no answer to the
Amended Complaint was filed).
(3) The Western District Federal court at Docket No. 03-cv-1400 has
disregard legal precedent. That is, the Western District on at least
four other occasions followed Gonzalez v. Paine, Webber, Jackson &
Curtis, Inc., 493 F. Supp. 499, 501 (S.D. N.Y. 1980) and Taylor v.
Abate, 1995 WL 362488 (E.D. N.Y. June 8, 1995) (stating that a motion
to dismiss is mooted upon the filing of an amended complaint). See:
Harford County v. Mid-State Bank and Trust, Docket No. 98-817 (West.
Dist. Pa. Sept. 23, 1998); Ceiriog Hughes v. Halbach & Braun
Industries, LTD, et al., Docket No. 97-1348 (West. Dist. Pa. March 3,
1998); Allegheny Environmental Action, Coalition, et al., v.
Westinghouse Electric Corporation, et al., Docket No. 96-2178 (West.
Dist. Pa. June 5, 1997); and Christopher Allen M.D., et al., v.
Washington Hospital, et al., Docket No. 96-1950 (West. Dist. Pa. Feb.
20. 1997).
III. PLAINTIFF'S BURDEN
To recover on a guaranty of non-discriminatory instruction, the
plaintiff must establish that he is the holder and owner of the
guaranty, and that relief is due and owing on the guaranty. At issue
therefore is the plaintiff's 42 U.S.C. Section 1981 claim.
Again note: The defendant failed to raise any available defense. That
is, they failed to file an Answer to the Amended Complaint, and with
one lone sentence (page 15) of their 25 page original argument they
acknowledged the claim but failed to identify a defense.
As amended by the Civil Rights Act of 1991, Section 1981 provides:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have
the same right... to make and enforce contracts... and to the full and
equal benefit of all laws... as is enjoyed by white citizens...
(b) "Make and enforce contracts" defined
For the purposes of this section, the term "make and enforce
contracts" includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.
c) Protection against impairment
The rights protected by this section are protected by non-government
discrimination and impairment under the color of state law.
IV. PLAINTIFF'S UNDISPUTED CASE
(PROVED WITHOUT GENUINE AND MATERIAL DISPUTE)
The elements of a Section 1981 claim are: (1) the plaintiff is a
member of a racial minority; (2) the defendant had the intent to
discriminate on the basis of race; and (3) the act of discrimination
concerned one or more of the activities enumerated in the statute. See
Main v. Conaldson Lufkin & Genrette Securities Corp., 7 F.3d 1085,
1087 (2d Cir. 1993); Green v. State Bar of Texas, 27 F.3d 1083, 1086
(5th Cir. 1994).
The first element of a Section 1981 claim is present; plaintiff
alleges he is an African American. See Paragraph 11 Amended Complaint.
The second element is additionally present:
(1) He made application in Fall of 2000 to the defendant online law
school, scored 14 of 15 correct on the entrance examination, passed
the "psychological testing," and was advised by a decision maker, Matt
McClanahann (Director of Enrollment) that he was "accepted for an
October 2000 start as a third-year transfer student." See Paragraph 12
Amended Complaint.
(2) Soon thereafter, he received notice from the Administrative office
(Matt McClanahann Director of Enrollment) that the law school "changed
its mind." That is, the defendant law school communicated specifically
"race (African American) didn't meet the planned demographics the
administrative office wanted for the inaugural group of students." See
Paragraph 13 Amended Complaint.
(3) The "change of mind" party-opponent admission was also
communicated to a third party. See attached affidavit. See also Fed.
R. Evid. 801(d)(2)(A). That is, under Rule 801 (n1), an out-of-court
declaration is admissible against a party opponent if the declarant
was an employee of the party, he made the statement while so employed
and it concerned a matter within the declarant's employment. See
Paragraph 14 Amended Complaint. And, because the statement was made by
an individual in a management/supervisory position as part of his
responsibility as liaison between the administration, tech folks, and
the students (to "oversee what was done"), is an admission as to the
corporate culture in which the decision to deny plaintiff the ability
to make, perform, enforce, modify or terminate an educational contract
(ability to enjoy the fruits of a contractual relationship) was made.
See Fed. R. Evid. 801(d)(A).
Allegations sufficient to support the third element are also present.
That is, the online law school denied him the right to "make and
enforce" a contract because his race didn't meet the demographic the
planned for the inaugural group of students. See affidavit attached to
motion for Summary judgment. See also Paragraph 13 Amended Complaint.
Both the plaintiff and the defendant has introduced evidence
demonstrating that the defendant:
(a) added an ex post facto attendance poli
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