CRUZ et al v. ATCO RACEWAY, INC. et al

Filing 67

OPINION. Signed by Judge Joseph E. Irenas on 6/27/2013. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EVELYN CRUZ,
Plaintiff,
v.
ATCO RACEWAY, INC.,
Defendant.

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Civil No. 12-5143 (JEI/AMD)

OPINION

APPEARANCES:
MORELLI RATNER PC
By: David T. Sirotkin, Esq.
950 Third Avenue
New York, New York 10022
Counsel for Plaintiff
SALMON, RICCHEZZA, SINGER & TURCHI, LLP
By: Timothy J. Schipske, Esq.
Tower Commons
123 Egg Harbor Road, Suite 406
Sewell, New Jersey 08080
Counsel for Defendant

IRENAS, Senior United States District Judge:
This wrongful death / negligence suit arises out of a fiery car
crash that occurred at the drag racing strip owned by Defendant Atco
Raceway, Inc.

The decedent, Jose Cruz, was severely burned after his

racecar crashed into a wall.

Although Cruz was able to escape the

car and walk away from the crash, he ultimately died.

1

Atco Raceway presently moves to dismiss the Complaint for
failure to state a claim, and for summary judgment.

Plaintiff,

Evelyn Cruz (Jose Cruz’s widow and administratrix of Jose’s estate),
opposes the Motion, and also moves to amend the Complaint.

For the

reasons stated herein, Atco Raceway’s Motion will be denied and
Evelyn Cruz’s Motion will be granted. 1

I.
The crash occurred in the afternoon of September 15, 2010.

On

that day, Jose Cruz and others were using the quarter-mile drag strip
at Atco Raceway for “timed runs.”
Ex. 10)

(E. Cruz Aff. ¶ 4; Sirotkin Aff.

During Jose Cruz’s fifth solo run down the strip, the engine

of Cruz’s 1986 Chevrolet Monte Carlo race car “suffered a
catastrophic engine failure.”

(Sirotkin Aff. Ex. 10 – police report)

“[Cruz’s] vehicle burst into flames, and sustained several impacts
with the concrete barrier[s] before coming to final rest [past the
finish line] fully engulfed with fire.”

(Id.)

Just after the crash, the ambulance located near the starting
line would not immediately start.
Aff. ¶ 6)

(E. Cruz Aff. ¶ 7; Joseph Cruz

Even Atco Raceway’s EMT, Richard Gardner, who drove the

ambulance, states, “I turned the ignition over in the diesel
ambulance, awaited the glow plugs to heat up, started the ambulance,

1

The Court exercises diversity jurisdiction pursuant to 28 U.S.C. §
1332. The parties are completely diverse and the amount in
controversy exceeds the statutory minimum.
2

and then proceeded . . . to the scene [of the crash].”
¶ 7) 2

(Gardner Aff.

By the time the ambulance arrived at the crash, 3 Jose Cruz was

already out of the car but severely burned.
After receiving emergency medical treatment from Waterford
Township EMTs, Jose Cruz was transported by helicopter to Cooper
Hospital.

Jose Cruz “suffered in the hospital for approximately 10

months” (E. Cruz. Aff. ¶ 15) 4, before dying on July 12, 2011.
The parties dispute whether, on the day of the crash, Jose Cruz
signed Atco Raceway’s standard “Release and Waiver of Liability,
Assumption of Risk and Indemnity Agreement.”
B. Swierczynski Aff. Ex. B)

(Sirotkin Aff. Ex. 11;

They also dispute whether Atco Raceway

inspected Jose Cruz’s vehicle prior to racing.
The original Complaint asserts negligence and wrongful death
claims, and seeks punitive damages against Atco Raceway.

The

Proposed Amended Complaint seeks to add a survivorship claim and a
negligence per se claim based on violations of New Jersey Motor
Vehicle Racetrack Regulations.

It also includes more detailed

2

The proposed Amended Complaint alleges that “[t]he ambulance was a
converted older model vehicle with a diesel engine. Atco knew that
unless the ambulance had been running recently, the engine would not
start until its glow plugs heated.” (Prop. Amend. Compl. ¶ 14)
3

The video surveillance recording of the drag strip purportedly
shows the ambulance arriving approximately 43 seconds after the
crash. (J. Swierczynski, Sr. Aff. ¶ 23) However, Plaintiff disputes
the authenticity of the recording. See infra n. 12.
4

The Proposed Amended Complaint alleges that both of Jose Cruz’s
legs were amputated. (Prop. Amend. Compl. ¶ 27)
3

factual allegations supporting, and elaborating on, Plaintiff’s
theories of negligence. 5
As stated previously, Atco Raceway moves to dismiss and for
summary judgment, and Evelyn Cruz moves to amend the Complaint.

II.
A.
Federal Rule of Civil Procedure 12(b)(6) provides that a court
may dismiss a complaint “for failure to state a claim upon which
relief can be granted.”

In order to survive a motion to dismiss, a

complaint must allege facts that raise a right to relief above the
speculative level.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007); see also Fed. R. Civ. P. 8(a)(2).

While a court must accept

as true all factual allegations in the plaintiff’s complaint, and
view them in the light most favorable to the plaintiff, Phillips v.
County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), a court is not
required to accept sweeping legal conclusions cast in the form of
factual allegations, unwarranted inferences, or unsupported
conclusions.
Cir. 1997).

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d
The complaint must state sufficient facts to show that

the legal allegations are not simply possible, but plausible.
Phillips, 515 F.3d at 234.

“A claim has facial plausibility when the

5

The Proposed Amended Complaint also seeks to eliminate as a
Defendant the National Hot Rod Association which was previously
dismissed from this suit pursuant to the parties’ stipulation. Atco
Raceway does not oppose this aspect of Plaintiff’s Motion to Amend.
4

plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a
district court must permit a curative amendment unless such an
amendment would be inequitable or futile.”

Great Western Mining &

Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010)
(internal citation and quotation omitted; emphasis added).

Stated

another way, “[d]ismissal without leave to amend is justified only on
the grounds of bad faith, undue delay, prejudice, or futility.”
Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).
“Delay is ‘undue’ when it places an unwarranted burden on the
court or when the plaintiff has had previous opportunities to amend.”
Estate of Oliva v. N.J., Dep't of Law & Pub. Safety, Div. of State
Police, 604 F.3d 788, 803 (3d Cir. 2010).
Futility “means that the complaint, as amended, would fail to
state a claim upon which relief could be granted.”

Burtch v. Milberg

Factors, Inc., 662 F.3d 212, 231 (3d Cir. 2011), cert. denied, 132 S.
Ct. 1861 (2012).

B.
“The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

deciding a motion for summary judgment, the court must construe all

In

5

facts and inferences in the light most favorable to the nonmoving
party.

See Boyle v. Allegheny Pennsylvania, 139 F.3d 386, 393 (3d

Cir. 1998).

The moving party bears the burden of establishing that

no genuine issue of material fact remains.
Catrett, 477 U.S. 317, 322-23 (1986).

See Celotex Corp. v.

A fact is material only if it

will affect the outcome of a lawsuit under the applicable law, and a
dispute of a material fact is genuine if the evidence is such that a
reasonable fact finder could return a verdict for the nonmoving
party.

See Anderson, 477 U.S. at 252.

“[A] party may file a motion for summary judgment at any time
until 30 days after the close of all discovery.”

Fed. R. Civ. P.

56(b).

III.
The Court addresses Plaintiff’s Motion to Amend and Defendant’s
Motion to Dismiss before turning to Defendant’s Motion for Summary
Judgment.

A.
Plaintiff moves to amend the Complaint to add a survivorship
claim and a negligence per se claim.

The Proposed Amended Complaint

also attempts to address some of the asserted pleading deficiencies
Defendant raised in its Motion to Dismiss.

Defendant opposes the

Motion, arguing that: (1) amendment is futile; (2) amendment was

6

unduly delayed; (3) allowing amendment would unduly prejudice
Defendant; and (4) amendment was proposed in bad faith.

1. Futility
Defendant asserts two futility arguments both of which fail.

Statutes of limitations
First, Defendant argues that both proposed new claims are barred
by their respective statutes of limitations.

As to the survivorship

claim, the two-year statute of limitations, N.J.S.A. 2A:15-3, has not
run.

Defendant erroneously assumes that the claim accrued on the day

of Jose Cruz’s accident (September 15, 2010), whereas the statute
expressly states that a survivorship action must be “commenced within
two years after the death of the decedent.”

Id. (emphasis added).

Jose Cruz died on July 12, 2011; the survivorship claim accrued on
that day, not the day of the accident.

Therefore, the claim

(included in the Proposed Amended Complaint filed on February 28,
2013) is not barred by the statute of limitations.
As to the new negligence per se claim, the Court concludes that
the proposed claim relates back to the original Complaint, therefore
the claim is not barred by the two-year statute of limitations found
in N.J.S.A. 2A:14-2.

Fed. R. Civ. P. 15(c)(1)(B) provides in

relevant part, “[a]n amendment relates back to the date of the
original pleading when: the amendment asserts a claim or defense that

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arose out of the conduct, transaction, or occurrence set out . . . in
the original pleading.”
Plaintiff asserts that Defendant was negligent per se when it
violated New Jersey Motor Vehicle Racetrack Regulations by allegedly
failing to inspect Jose Cruz’s car prior to racing on September 15,
2010. 6

This claim arises out of the same occurrence alleged in the

original complaint: Jose Cruz’s injury and eventual death; and the
same alleged conduct: Defendant’s failure “to provide a reasonably
safe racing environment” on September 15, 2010. (Compl. ¶ 36)

Thus,

the proposed negligence per se claim relates back to the date of
original complaint, and is not barred by the statute of limitations.

Statutory immunity
Second, Defendant argues that amendment is futile because it is
immune from suit pursuant to New Jersey’s Good Samaritan Law,
N.J.S.A. 26:2K-29, which provides,
No EMT-intermediate, licensed physician, hospital or its
board of trustees, officers and members of the medical
staff, nurses or other employees of the hospital, or
officers and members of a first aid, ambulance or rescue
squad shall be liable for any civil damages as the result
of an act or the omission of an act committed while in
training for or in the rendering of intermediate life
6

The Proposed Amended Complaint also asserts that Defendant violated
the relevant regulations by failing to have an ambulance immediately
available to respond to an emergency and failing to have at least two
EMT’s immediately available to respond to an emergency. But
Defendant does not argue that these claims do not relate back to the
original complaint, which alleges that “[d]efendant[] ATCO . . . had
a duty to prepare for the danger of car crashes and the possibility
of a resultant fire.” (Compl. ¶ 37)
8

support services in good faith and in accordance with
this act.
Defendant’s argument fails because the statute, on its face,
does not apply to corporations that operate racetracks. 7

Cf. Murray

v. Plainfield Rescue Squad, 210 N.J. 581 (2012) (holding that Good
Samaritan Law did not shield rescue squad, as an entity, from a
negligence suit because statute explicitly refers only to “officers
and members” of a rescue squad).

2.

Undue delay

Defendant points to no facts supporting a finding of undue delay
in amending the Complaint.

The Motion to Amend was filed within the

time for amending pleadings established by Magistrate Judge Donio’s
Scheduling Order of January 7, 2013.

Moreover, the Motion to Amend

was filed well before the deadline for finishing pretrial factual
discovery, which was, at the time, June 28, 2013. 8

Contrast Estate of

Oliva, 604 F.3d at 803 (holding delay was undue where Plaintiff
sought to amend the complaint five years after the complaint was
filed and after the close of discovery).

3.

Undue prejudice

Defendant also does not articulate how it will be unduly
prejudiced by the amendment.

It merely argues that “Defendant is

7

The individual EMTs at the racetrack on the day of the crash were
not named as Defendants in the original Complaint, and are not named
as Defendants in the Proposed Amended Complaint.
8
The deadline was later extended to July 31, 2013.
9

prejudiced by the undue delay.”

(Opposition Brief p. 10)

However,

as already stated, there is no undue delay.

4.

Bad faith

Lastly, nothing in the record suggests that the Amended
Complaint was proposed in bad faith.

Defendant urges the Court to

conclude that the amendment is in bad faith because the new claims
allegedly fail on the merits.
First, even if the new claims were not meritorious (which the
Court does not hold), asserting a claim that ultimately fails is not
tantamount to asserting a claim in bad faith.

Cf. Wartsila NSD North

Am., Inc. v. Hill Int’l, Inc., 342 F. Supp.2d 267, 274 (D.N.J. 2004)
(“‘[T]o say that a party confronts difficult questions of factual
sufficiency is not the same as saying its claims are patently
frivolous.’”) (quoting Ford Motor Co. v. Summit Motor Prods., Inc.,
930 F.2d 277, 290 (3d Cir. 1991)).
Second, for the reasons stated in this Opinion, the Court
rejects every one of Defendant’s arguments in support of its argument
that the instant suit is without merit.
In light of the foregoing, Plaintiff’s Motion to Amend the
Complaint will be granted.

B.
Defendant moves to dismiss the Amended Complaint arguing that
Plaintiff does not plead sufficient facts supporting a plausible
10

inference that Defendant’s alleged negligence caused Jose Cruz’s
death. 9

According to Defendant,

the Complaint [is] vacant of any plausible facts to
support the blanket conclusion that after Cruz crashed
his car into the wall causing both the car and Cruz
himself to be engulfed in flames, the purported failure
of an ambulance and fire suppression equipment made any
difference whatsoever.
Plaintiff’s decedent, a diabetic
nd
rd
and 3
degree burns to his hands and
who sustained 2
feet, passed away approximately 11 months after this
incident. . . .
. . . [T]here are no assertions that a man, let alone
this man, in this exact circumstance could have or would
have survived the initial crash and subsequent immediate
fire engulfment of his vehicle and his person, even if he
had a fire extinguisher in his vehicle and put it to use
when he brought his vehicle to a controlled stop some
approximate 5/8ths of a mile past the start line.
(Moving Brief, p. 14)
In a nutshell, Defendant’s argument seems to be that only
preventing the crash altogether could have prevented Jose Cruz’s
death, and since Defendant’s alleged negligence in failing to respond
sooner could not possibly have prevented the crash, Defendant cannot
be liable.
Perhaps a jury will ultimately agree with Defendant’s argument.
However, a reasonable juror could plausibly conclude from the factual
allegations of the Amended Complaint that if the ambulance had
reached Jose Cruz earlier-- for example, while he was still strapped
in the car-- his burns would not have been as severe as they were,
9

Defendant moved to dismiss the original Complaint before Plaintiff
moved to amend the Complaint. However, Defendant’s argument is not
entirely mooted by the Amended Complaint and therefore the Court
considers the argument as it still applies to the allegations of the
Amended Complaint.
11

and therefore Jose Cruz would not have died.

The allegations of the

Amended Complaint do not necessarily require a reasonable juror to
conclude that preventing the crash was the only way to prevent Jose
Cruz’s death.
Accordingly, Defendant’s Motion to Dismiss will be denied. 10

C.
Defendant asserts three arguments in support of its Motion for
Summary Judgment: (1) Jose Cruz’s assumption of the risk of severe
injury and death precludes Defendant’s liability; (2) Jose Cruz
released Defendant from all claims asserted in this suit; and (3) the
record evidence provides no basis upon which to impose punitive
damages.

The Court addresses each argument in turn.

1.

Assumption of risk

Employing a theory of “primary” assumption of risk, Defendant
argues that Plaintiff’s evidence fails to establish that Jose Cruz’s
injuries and death were “caused by a risk other than one inherent in
a well-run” drag racing strip, Meistrich v. Casino Arena Attractions,

10

Defendant asserted two other arguments in its Motion to Dismiss.
The first-- that the Complaint failed to identify any laws governing
the use of ambulances and fire equipment at racetracks-- is mooted by
the Amended Complaint.
The second-- that Jose Cruz assumed the risk of his injuries and
death and released Defendant from all liability-- is more
appropriately considered within the context of Defendant’s Motion for
Summary Judgment, see infra.
12

Inc., 31 N.J. 44, 49 (1959), therefore Defendant cannot be liable for
negligence. 11
However, Plaintiff has put forth sufficient evidence creating a
material fact issue as to whether Jose Cruz’s injuries and death were
caused, not by a risk inherent in even the most carefully operated
drag strip, but rather by Defendant’s breach of duty.

See Meistrich,

31 N.J. at 49 (“primary” assumption of risk “is an alternate
expression for the proposition that defendant was not negligent,
i.e., either owed no duty or did not breach the duty owed.”).
Plaintiff relies upon New Jersey Motor Vehicle Racetrack
Regulations for the source of Defendant’s duty.

The relevant

provisions provide:
The licensee shall not permit any race, practice or
exhibition of driving skill unless there is available for
immediate use at the licensed location at least one
vehicle suitable for ambulance purposes, together with
two certified EMTs.
The licensee shall arrange for the inspection of each
participating vehicle prior to the event, to determine
that it meets the requirements of this chapter.
The licensee shall arrange for the inspection of each
participating vehicle prior to the event, to determine
that it meets the requirements of this chapter. Vehicles
not meeting the requirements set forth for the specified
event shall be barred by the licensee from participation
or practice.
N.J.A.C. §§ 13:62-2.18 (emphasis added); 13:62-5.8; 13:62-2.13.

11

As discussed at length in Meistrich, “secondary” assumption of the
risk is indistinguishable from contributory negligence. 31 N.J. at
50-55. Defendant does not presently move for summary judgment based
on contributory negligence.
13

Plaintiff has put forth sufficient facts raising a question as
to whether Defendant complied with the regulations.
With respect to the availability of the ambulance, Plaintiff
submits the affidavits of Evelyn and Joseph Cruz, as well as
spectators Ramon Fernandez and Chelin Anazagasty, which all state
that just after the crash, they observed that the ambulance did not
immediately start, despite track personnel’s attempts to start the
vehicle.

(E. Cruz Aff. ¶ 7; J. Cruz Aff. ¶ 6; Fernandez Aff. ¶ 5;

Anazagasty Aff. ¶ 4)

Anazagasty specifically states that he “heard

the engine turn over, but fail to start at least four or five times.”
(Anazagasty Aff. ¶ 4)

Even Richard Gardner, Defendant’s EMT, states

that after he “turned the ignition over in the diesel ambulance,” he
had to “[]wait [for] the glow plugs to heat up” before the engine
would start.

(Gardner Aff. ¶ 7)

This evidence raises a material factual dispute as to whether
Defendant breached its duty, pursuant to state regulations, to have
an ambulance immediately available to respond to Jose Cruz’s crash. 12

12

With respect to the time within which the ambulance responded to
the crash, Defendant also relies on a video recording of the drag
strip allegedly taken in the normal course of business. According to
Defendant, the video shows the ambulance responding 43 seconds after
the crash.
The Court has viewed the video. It is not very clear, and to a
viewer unfamiliar with the drag strip facility, it is not apparent
that the vehicle responding 43 seconds after the crash is an
ambulance; although Defendant provides affidavits from witnesses
stating that the vehicle is the ambulance.
Moreover, Plaintiff has raised questions as to the video’s
authenticity. For example, the video was not produced in original
format, bears no date or time stamp, and the hard drive on which the
video was stored was subsequently destroyed by lightning.
14

Similarly, Plaintiff has put forth sufficient evidence raising a
fact issue as to whether Defendant inspected Jose Cruz’s car on the
day of the crash.

While Defendant relies on the undisputed fact that

a technical inspection form dated September 15, 2010, exists for Jose
Cruz’s vehicle, Plaintiff has satisfied her summary judgment burden
of putting forth facts calling into question whether such an
inspection was actually performed, or at the very least performed
correctly.
It is undisputed that the technical inspection form (Sirotkin
Aff. Ex. 8) is missing many pieces of information, including Cruz’s
drivers license number and issuing state, Cruz’s age, license plate
number, as well as the vehicle year and make.

(Id.)

Perhaps most

importantly, the eight-item engine inspection checklist is completely
blank.

(Id.) 13

Lastly, Evelyn Cruz and Joseph Cruz state in their affidavits
that the video “is not an accurate depiction” of what happened on the
day in question. (E. Cruz Aff. ¶ 17; J. Cruz Aff. ¶ 16)
For all of these reasons, the video does not resolve the
material questions of fact concerning the response time of the
ambulance, and contrary to Defendant’s assertions, summary judgment
is not warranted on the basis of the video.
Defendant’s reliance on Scott v. Harris, 550 U.S. 372 (2007)
does not change the Court’s conclusion. First, Scott involved a
qualified immunity question in an excessive force case, a factual and
legal scenario much different than this case. Second, Scott
specifically explained that with respect to the videotape at issue,
“[t]here [were] no allegations that th[e] videotape was doctored or
altered in any way, nor any contention that what it depicts differs
from what actually happened.” 550 U.S. at 378. In this case
Plaintiff does contend that what the video depicts is not what
happened. Thus, Scott is clearly distinguishable.
13

Plaintiff also points to two different versions of the technical
inspection form in the record: one which bears Brian Sway’s initials
15

Additionally, Evelyn Cruz and Joseph Cruz both state in their
affidavits that “nobody from the track ever inspected [Jose Cruz’s]
vehicle” on the day of the crash.

(E. Cruz Aff. ¶ 18; J. Cruz Aff. ¶

17)
This evidence raises a material factual dispute as to whether
Defendant breached its duty, pursuant to state regulations, to
inspect Jose Cruz’s vehicle.

Summary Judgment will be denied as to

this issue.

2.

Release

Disputed issues of material fact also preclude summary judgment
for Defendant on the issue of Jose Cruz’s alleged release of
liability.

Evelyn and Joseph Cruz both state that Jose Cruz did not

sign a release on the day of the crash.
Aff. ¶ 17)

(E. Cruz Aff. ¶ 20; J. Cruz

Evelyn Cruz also specifically states that the signature

on the release is not her husband’s.

(E. Cruz Aff. ¶ 20)

Moreover, similar to the Technical Inspection Form, the record
contains two different versions of the release.

One version of the

release was witnessed by Brian Sway (Sirotkin Aff. Ex. 11), and one
was not (Sirotkin Aff. Ex. 10).

Also, neither document bears a date,

which is significant since the parties agree that Jose Cruz had raced
indicating that he completed the inspection (Sirotkin Aff. Ex. 8) and
one which does not have any initials (Sirotkin Aff. Ex. 10). The
Court agrees that this discrepancy creates further issues of fact
requiring resolution by a jury. However, both versions of the form
are completely blank with respect to the engine inspection checklist.
Thus a reasonable juror could infer from either form (or both) that
the engine of Jose Cruz’s vehicle was never inspected.
16

at Atco Raceway on prior occasions.

These material issues of fact

preclude summary judgment for Defendant on the waiver issue.

3.

Punitive damages

Lastly, Defendant argues that there are no facts in the record
upon which to base a punitive damages award.

The Court disagrees.

Under New Jersey’s Punitive Damages Act, “[p]unitive damages may
be awarded to the plaintiff only if the plaintiff proves, by clear
and convincing evidence, that the harm suffered was the result of the
defendant’s acts or omissions, and such acts or omissions were
actuated by actual malice or accompanied by a wanton and willful
disregard of persons who foreseeably might be harmed by those acts or
omissions.”

N.J.S.A. 2A:15-5.12 (emphasis added).

To establish that

a defendant’s act or omission was “wanton and willful,” a “plaintiff
must prove . . .

a deliberate act or omission with knowledge of a

high degree of probability of harm and reckless indifference to the
consequences.”

Smith v. Whitaker, 160 N.J. 221, 242 (1999) (internal

citation and quotation omitted).
The record evidence, viewed in the light most favorable to
Plaintiff, supports the reasonable conclusion that Defendant
deliberately ignored New Jersey safety regulations governing drag
strips, and knew that failing to follow safety precautions could
result in severe injury or death, but allowed Jose Cruz to race
anyway.

17

Defendant’s Motion for Summary Judgment as to punitive damages
will be denied.

IV.
In conclusion, this serious and factually complex case is still
in its early stages.

Discovery is ongoing.

The discovery which has

already taken place has revealed several factual wrinkles and
subtleties.

Under such circumstances, and for the specific reasons

stated above, dismissal of Plaintiff’s claims either on a motion to
dismiss, or on summary judgment, is particularly inappropriate at
this time.
In light of the foregoing, Plaintiff’s Motion to Amend the
Complaint will be granted and Defendant’s Motion to Dismiss / Motion
for Summary Judgment will be denied.

An appropriate Order

accompanies this Opinion.

Date:

June 27, 2013

___s/ Joseph E. Irenas_______
JOSEPH E. IRENAS, S.U.S.D.J.

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