DEAN v. DEPTFORD TOWNSHIP et al
MEMORANDUM OPINION AND ORDER, ORDERED that the motion of Defts Scott Borton and Charles Finnegan for judgment on the pleadings is converted to a motion for summary judgement, etc.; ORDERED that counsel for Pltf and counsel for Defts Borton and Finn egan must agree upon a briefing schedule in connection with the summary judgment motion by 5/1/2015. Counsel for Defts Borton and Finnegan must advise the Court of the briefing schedule by 4/6/2015. Signed by Judge Noel L. Hillman on 3/30/2015. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil No. 13-5197 (NLH/KMW)
DEPTFORD TOWNSHIP, et al.,
HILLMAN, District Judge:
This matter having come before the Court by way of motion
[Doc. No. 97] of Defendants Scott Borton and Charles Finnegan
seeking judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c); and it appearing as follows:
Plaintiff filed the initial complaint on August 29,
Defendants Borton and Finnegan were not named as
defendants at that time, although the complaint named “John Doe”
Plaintiff averred in the initial complaint that he
was arrested on December 27, 2011, and that the first night in
jail he was “severely beaten by Defendant Correctional Officers
[and] John Does 1-10, in the jail’s shower facility.”
¶¶ 13, 30.)
Plaintiff, pursuant to an Order dated April 29, 2014,
was granted leave to file an amended complaint.
the amended complaint on May 8, 2014.
In the amended complaint, Plaintiff added Defendants
Borton and Finnegan as parties and asserted four causes of
action against these individuals.
Counts One and Two are based
on constitutional violations and are brought pursuant to 42
U.S.C. § 1983.
Count Three alleges a violation of the New
Jersey Civil Rights Act under N.J. Stat. Ann. § 10:6-2.
Seven is a common law tort claim for assault and battery.
Defendants Borton and Finnegan filed an answer to the
amended complaint in which they assert as an affirmative defense
that Plaintiff’s claims are barred by the statute of
Generally, a statute of limitations defense may not be
raised by way of motion under Rule 12 unless “the time alleged
in the statement of a claim shows that the cause of action has
not been brought within the statute of limitations.”
Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (internal quotations
If “the bar is not apparent on the face of the
complaint, then it may not afford the basis for a dismissal of
the complaint under Rule 12(b)(6).”
Id. (internal quotations
In this case, Plaintiff’s claims pursuant to 42 U.S.C.
§ 1983 have a two-year statute of limitations.
Dique v. New
Jersey State Police, 603 F.3d 181, 185 (3d Cir. 2010).
With respect to Plaintiff’s claim under the New Jersey
Civil Rights Act, courts in this district have employed a twoyear statute of limitations.
See, e.g., Johnson v. Passaic
Cty., Civ. No. 2:13-4363, 2014 WL 2203842, at *9 (D.N.J. May 23,
2014) (statute of limitations under New Jersey Civil Rights Act
is two years, noting that state statute was modeled after
Section 1983 and has been interpreted in parallel with Section
1983); Brown v. City of Newark, Civ. A. No. 09-3752, 2010 WL
1704748, at *4 (D.N.J. Apr. 26, 2010) (“[T]he language of New
Jersey's generally-applicable personal injury statute of
limitations, combined with the NJCRA's similar purpose and
design to § 1983, which has employed state statutes of
limitations . . . convinces this Court that New Jersey's twoyear limitation applies to the NJCRA.”).
The Court notes that Defendants Borton and Finnegan move
pursuant to Fed. R. Civ. P. 12(c) rather than Fed. R. Civ. P.
12(b)(6). In analyzing a Rule 12(c) motion, a court applies the
same legal standards as applicable to a motion filed pursuant to
Rule 12(b)(6). Turbe v. Gov't of V.I., 938 F.2d 427, 428 (3d
The statute of limitations for Plaintiff’s common law
assault and battery claim is also two years pursuant to N.J.
Stat. Ann. § 2A:14-2.
Pittman v. Metuchen Police Dept., 441 F.
App’x 826, 828 (3d Cir. 2011); Jutrowski v. Twp. of Riverdale,
Civ. A. No. 13-7351, 2014 WL 3783874, at *3 (D.N.J. July 31,
2014); Gordon v. East Orange Veterans Hosp., Civ. A. No. 2:11cv-4066, 2013 WL 5730496, at *7 (D.N.J. Oct. 22, 2013).
As the allegedly wrongful conduct in this action
occurred in December 2011, it appears from the face of the
complaint that the two-year statute of limitations on all four
claims against Defendants Borton and Finnegan had expired when
Plaintiff filed the amended complaint on May 8, 2014.
Plaintiff concedes in opposition to the present motion
that his claims against Defendants Borton and Finnegan were not
filed within the statute of limitations period.
(Pl.’s Mem. of
Law in Supp. of Pl.’s Response in Opp. to Def.’s Mot. to Dismiss
[Doc. No. 101], at 2.)
Plaintiff argues, however, that the
claims against these defendants are not subject to dismissal
because the amended complaint relates back to the date of the
filing of the original complaint pursuant to Fed. R. Civ. 15(c).
In deciding whether the amendment in this case relates
back to the date of an original pleading, the Court first
considers whether New Jersey law -- which is the law that
provides the applicable statute of limitations as discussed
above -- would allow relation back.
Fed. R. Civ. P.
Two New Jersey rules are relevant to the relation back
inquiry in this case: N.J. Ct. R. 4:26-4 and 4:9-3.
New Jersey Court Rule 4:26-4, the fictitious party
rule, permits a plaintiff to sue a defendant under a fictitious
name when the defendant’s real name is unknown.
party rule may be used only if the plaintiff exercised due
diligence to ascertain the defendant's true name before and
after filing the complaint.”
DeRienzo v. Harvard Indus., Inc.,
357 F.3d 348, 353 (3d Cir. 2004).
A plaintiff may not avail
himself of this rule if he “should have known, by exercise of
due diligence, defendant's identity prior to the expiration of
the statute of limitations.”
Additionally, the “fictitious
name designation also must have appended to it ‘an appropriate
description sufficient to identify’ the defendant.”
Finally, the new defendant must not be prejudiced by the
application of N.J. Ct. R. 4:26-4.
Defendants Borton and Finnegan contend that Plaintiff
did not exercise due diligence in obtaining the identity of all
parties, arguing that Plaintiff should have received discovery
concerning the identity of these officers in connection with an
underlying criminal matter and in discovery provided earlier in
this civil action.
(Br. in Supp. of Mot. to Dismiss Compl.
Pursuant to F.R.C.P. 12(c) [Doc. No. 97-2], at 10-12.)
Defendants also argue that they are prejudiced because they did
not have knowledge of the potential claims against them.
In support, Defendants submit the Rule 26 disclosures of
other defendants in this case, as well as declarations from
Defendants Borton and Finnegan.
Thus, in considering the application of N.J. Ct. R.
4:26-4, the Court must consider evidence concerning Plaintiff’s
efforts to identify Defendants Borton and Finnegan before the
statute of limitations expired, as well as evidence concerning
prejudice to these defendants.
In deciding a motion for judgment on the pleadings,
however, the Court is limited in the documents which may be
A court may consider the pleadings, the documents
attached thereto as exhibits, and matters of public record.
Guidotti v. Legal Helpers Debt Resolution, 716 F.3d 764, 772 (3d
A court may also consider “‘undisputedly authentic
documents if the complainant's claims are based upon these
Id. (quoting Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010)).
If any other matters outside the pleadings
are presented to the Court, and the Court does not exclude those
matters, a Rule 12(c) motion will be treated as a summary
judgment motion pursuant to Rule 56.
Fed. R. Civ. P. 12(d).
Because the Court must consider evidence outside the
pleadings, the Court cannot determine on a Rule 12(c) motion
whether Plaintiff may avail himself of New Jersey’s fictitious
party rule, N.J. Ct. R. 4:26-4.
The New Jersey Court Rules also contain a general
relation back rule, which provides that “[a]n amendment changing
the party against whom a claim is asserted relates back if” the
claim asserted in the amended complaint arose out of the conduct
set forth in the original pleading, and if within the statute of
limitations period the new party “(1) has received such notice
of the institution of the action that the party will not be
prejudiced in maintaining a defense on the merits, and (2) knew
or should have known that, but for a mistake concerning the
identity of the proper party, the action would have been brought
against the party to be brought in by amendment.”
N.J. Ct. R.
Again, to determine whether Defendants Borton and
Finnegan had notice of the action within the statute of
limitations period, and whether these defendants knew or should
have known that they would have been named defendants, the Court
must look to evidence outside of the pleadings.
The Court thus
cannot determine on a Rule 12(c) motion whether Plaintiff can
avail himself of New Jersey’s general relation back rule as set
forth in N.J. Ct. R. 4:9-3.
Finally, the Court considers whether relation back
would be permitted under Fed. R. Civ. P. 15(c)(1)(C), which
An amendment to a pleading relates back to
the date of the original pleading when:
. . .
(C) the amendment changes the party or the
naming of the party against whom a claim is
asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule
4(m) for serving the summons and complaint,
the party to be brought in by amendment:
(i) received such notice of the action
that it will not be prejudiced in defending
on the merits; and
(ii) knew or should have known that the
action would have been brought against it,
but for a mistake concerning the proper
Fed. R. Civ. P. 15(c)(1)(C).
The requirements of Fed. R. Civ. P. 15(c)(1)(C)(i) and
(ii) are almost identical to the requirements of New Jersey’s
general relation back rule, although under the federal rule
Defendants must have had notice within the time for serving the
summons and complaint rather than within the statute of
For the same reasons discussed above with respect to
New Jersey’s general relation back rule, the Court must consider
evidence outside of the pleadings concerning notice and whether
Defendants Borton and Finnegan knew or should have known that
they would have been named as defendants.
Because the Court cannot determine whether relation
back would be permitted under Fed. R. Civ. P. 15(c)(1)(A) -through N.J. Ct. R. 4:26-4 and N.J. Ct. R. 4:9-3 -- or under
Fed. R. Civ. P. 15(c)(1)(C) without looking to evidence beyond
the pleadings, the Court will convert the motion to a motion for
summary judgment under Rule 56 of the Federal Rules of Civil
Fed. R. Civ. P. 12(d).
Pursuant to Rule 12(d), when
the Court treats a motion as one for summary judgment, “[a]ll
parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion.”
Accordingly, the parties are directed to agree upon a
briefing schedule for submission of supplemental briefing and
submission of evidence on the relation back issue.
must be completed by May 1, 2015, and the submissions must
comply with Local Civil Rule 56.1.
THEREFORE, it is on this
ORDERED that the motion of Defendants Scott Borton and
Charles Finnegan for judgment on the pleadings pursuant to Fed.
R. Civ. P. 12(c) be, and the same hereby is, converted a motion
for summary judgment pursuant to Fed. R. Civ. P. 56; and it is
ORDERED that counsel for Plaintiff and counsel for
Defendants Borton and Finnegan must agree upon a briefing
schedule in connection with the summary judgment motion, which
briefing must be completed by no later than May 1, 2015.
Counsel for Defendants Borton and Finnegan must advise the Court
of the briefing schedule by no later than April 6, 2015.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
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