Opinion
Civil Action No. 1:18-CV-10
07-19-2018
RICHARD PENKOSKI, JOHN GUNTER, Jr., WHITNEY KOHL, JOAN GRACE HARLEY, and CHRIS SEVIER, Plaintiffs, v. JIM JUSTICE, in his official capacity as Governor of West Virginia, PATRICK MORRISEY, in his official Capacity as Attorney General of West Virginia, and JEAN BUTCHER, in her official capacity as the Clerk of Gilmer County, Defendants.
(JUDGE KEELEY)
REPORT & RECOMMENDATION
On January 16, 2018, Plaintiffs filed their complaint seeking injunctive relief against Defendants "under the Establishment Clause . . . [and] the Fourteenth Amendment's Equal Protection and Substantive Due Process Clauses," (ECF No. 1 at 3), in connection with the alleged denial of marriage licenses for which Plaintiffs had applied. On February 12, 2018, Defendants Justice and Morrisey moved to dismiss Plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(1), Fed. R. Civ. P. 12(b)(1)(5), and Fed. R. Civ. P. 12(b)(6) "for lack of jurisdiction and lack of service, or to dismiss the action entirely because it does not state a claim for which relief can be granted." (ECF No. 52 at 1). Defendants Justice and Morrisey argued that 1) they have not been properly served; 2) the Court lacks jurisdiction because the suit is barred by Eleventh Amendment sovereign immunity, and because Plaintiffs lack Article III standing; and 3) Plaintiffs present frivolous legal arguments and have failed to state viable First Amendment and Fourteenth Amendment claims. (ECF No. 53).
On March 9, 2018, in apparent response, Plaintiffs amended their complaint as of right. (ECF No. 62). See Fed. R. Civ. P. 15(a)(1)(B). Defendants subsequently moved to dismiss the amended complaint on March 30, 2018. (ECF No. 69). In light of Plaintiffs' timely amendment - rendering the original complaint "of no legal effect," see Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) - and in light of the motion to dismiss the amended complaint (ECF No. 69) now pending as the operative motion under consideration, the undersigned RECOMMENDS that Defendants Justice and Morrisey's motion to dismiss Plaintiffs' original complaint (ECF No. 52) be DENIED AS MOOT.
Any party may, within fourteen (14) days after being served with a copy of this Report and Recommendation file with the Clerk of the Court written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the Honorable Irene M. Keeley, United States District Judge. Failure to timely file objections to the Report and Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such Report and Recommendation. 28 U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
The Clerk of Court is further DIRECTED to provide a copy of this Report and Recommendation to counsel of record, and to the pro se Plaintiffs by certified mail, return receipt requested, at their last known addresses as shown on the docket.
Entered this 19th day of July, 2018.
/s/_________
MICHAEL JOHN ALOI
UNITED STATES MAGISTRATE JUDGE