DEAN v. DEPTFORD TOWNSHIP et al

Filing 134

OPINION. Signed by Judge Noel L. Hillman on 6/16/2015. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

_________________________________
TAHARQU DEAN,
Plaintiff,

Civil No. 13-5197 (NLH/KMW)

v.
OPINION
DEPTFORD TOWNSHIP, et al.,
Defendants.
__________________________________

APPEARANCES:
David Andrew Berlin, Esquire
Matthew Benjamin Weisberg, Esquire
Weisberg Law
7 South Morton Avenue
Morton, Pennsylvania 19070
Attorneys for Plaintiff
Vanessa Elaine James, Esquire
Barker Scott & Gelfand PC
210 New Road
Linwood Greene
Suite 12
Linwood, New Jersey 08221
Attorneys for Defendants Deptford Township, Michael
DiVito, and John Storms

1

Patrick J. Madden, Esquire
Timothy R. Bieg, Esquire
Madden & Madden, PA
108 Kings Highway East
Suite 200
P.O. Box 210
Haddonfield, New Jersey 08033-0389
Attorneys for Defendants Gloucester County, Gloucester
County Department of Correctional Services, and Jesse
Yamada
Linda A. Galella, Esquire
Richardson, Galella & Austermuhl
142 Emerson Street
Suite B
Woodbury, New Jersey 08096
Attorneys for Defendants C. Finnegan and S. Borton
HILLMAN, District Judge:
This matter comes 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).

By Memorandum Opinion and Order dated March

30, 2015, the Court converted the motion to dismiss to a motion
for summary judgment pursuant to Fed. R. Civ. P. 12(d) and
directed the parties to provide supplemental briefing.

The

Court has considered the supplemental submissions of the parties
and decides this matter pursuant to Fed. R. Civ. P. 78.
For the reasons that follow, the motion of Defendants
Borton and Finnegan will be granted.

2

I.

BACKGROUND
In this case, Plaintiff alleges, inter alia, that he was

“severely beaten” by corrections officers while incarcerated at
the Gloucester County Correctional Facility in 2011.
Compl. [Doc. No. 73] ¶ 33.)

(Am.

The original complaint named a

number of defendants, including Gloucester County, the
Gloucester County Department of Correctional Services, Eugene
Caldwell II as the Warden of the Gloucester County Department of
Correctional Services, and Jesse Yamada as Sergeant of the
Gloucester County Department of Correctional Services.
[Doc. No. 1] ¶¶ 5, 7, 11.)

(Compl.

The original complaint also named

“John Does 1-10” as “Defendant Correctional Officers.”

(Id. ¶

30.)
Plaintiff filed the original complaint on August 29, 2013.
Defendants Borton and Finnegan, corrections officers at the
Gloucester County Correctional Facility, were not named as
defendants at that time.

Plaintiff, pursuant to an Order dated

April 29, 2014, was granted leave to file an amended complaint,
which was filed 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.
Compl. [Doc. No. 73] ¶¶ 12, 13.)

(Am.

Counts One and Two are based

on constitutional violations and are brought pursuant to 42
U.S.C. § 1983.

(Id. ¶¶ 39-48.)

Count Three alleges a violation
3

of the New Jersey Civil Rights Act under N.J. Stat. Ann. § 10:62.

(Id. ¶¶ 49-51.)

Count Seven is a common law tort claim for

assault and battery.

(Id. ¶¶ 69-70.)

On September 4, 2014, Defendants Borton and Finnegan filed
an answer to the amended complaint.

Thereafter, these

defendants filed a motion for judgment on the pleadings pursuant
to Fed. R. Civ. P. 12(c) on the basis that Plaintiff’s claims
against them were time-barred and did not relate back to the
filing of the original complaint.

(Br. in Supp. of Mot. to

Dismiss Compl. Pursuant to F.R.C.P. 12(c) as to Defs.
Corrections Officer Charles Finnegan and Corrections Officer
Scott Borton [Doc. No. 97-2], at 4-16.)
In a Memorandum Opinion and Order dated March 30, 2015, the
Court concluded that Plaintiff’s claims against Defendants
Borton and Finnegan were not filed within the statute of
limitations period.

(Mem. Op. and Order [Doc. No. 109], at 4.)

The Court then considered whether the claims relate back to the
filing of the original complaint pursuant to Fed. R. Civ. 15(c).
(Id. at 4-9.)

Because the Court could not determine whether

relation back would be permitted without looking to evidence
beyond the pleadings, the Court converted the motion to a motion
for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure and directed the parties to submit additional
briefing.

(Id. at 9.)
4

Defendants then filed a Statement of Undisputed Material
Facts in which they represent that as early as 2011, Plaintiff
had notice of their identities and roles in the incident that
gives rise to the claims in this case.

(Statement of Undisputed

Material Facts in Supp. of Mot. for Summ. J. [Doc. No. 128]
(hereafter, “Defs.’ SOF”) ¶¶ 8-10, 15.)

In support, Defendants

cite Plaintiff’s deposition testimony, in which Plaintiff
testified that between December 27, 2011 and January 6, 2012,
when he was still incarcerated in the county jail, he wrote down
the names of the officers who purportedly used excessive force
against him.
104:17-24.)

(Defs.’ Ltr. Reply Br. [Doc. No. 102], Ex. A at
The names he wrote down included Defendants Borton

and Finnegan.

(Id. at 100:20-101:2, 102:4-9.)

In addition,

Plaintiff was advised of these defendants’ identities in
Defendant Gloucester County’s Rule 26 disclosures, which were
served in 2013.

(Defs.’ SOF ¶ 15.)

Defendants also represent

that they did not have knowledge of the claims against them
until the summer of 2014.

(Defs.’ SOF ¶¶ 16, 17.)

In response to Defendants’ Statement of Undisputed Material
Facts, Plaintiff denies that he had notice of the identities of
Defendants Borton and Finnegan, but he cites no evidence to
counter his own sworn deposition testimony.

(Pl.’s Response in

Opp. to Defs.’ Statement of Material Facts [Doc. No. 132-1] ¶¶
8, 10.)

Plaintiff also argues that Borton and Finnegan were on
5

notice of the claims against them through their employer, codefendants Gloucester County and Gloucester County Department of
Correctional Services.

(Id. ¶¶ 16, 17.)

Plaintiff contends

that even if Defendants did not have actual notice of the claims
against them, notice should be imputed through the doctrine of
“commonality of interest” recognized by the United States Court
of Appeals for the Third Circuit in Singletary v. Pa. Dept. of
Corrections, 266 F.3d 186, 197 (3d Cir. 2001).

(Pl.’s Supp.

Mem. re: Defs.’, Borton, Et Al., Converted Mot. for Summ. J.
[Doc. No. 132] (hereafter, “Pl.’s Opp. Br.”) 1-2.)
II.

DISCUSSION
The Court set forth the law concerning relation back in its

March 30, 2015 Memorandum Opinion and Order.

The Court first

considered whether relation back would be permitted under Fed.
R. Civ. P. 15(c)(1)(A), which allows for relation back if “the
law that provides the applicable statute of limitations allows
relation back[.]”

(Mem. Op. and Order [Doc. No. 109] 4-5; Fed.

R. Civ. P. 15(c)(1)(A)).

Because New Jersey law provides the

applicable statute of limitations, as discussed in the March 30,
2015 Memorandum Opinion and Order, the Court considered the
relation back rules of New Jersey but determined that additional

6

evidence was necessary to decide whether relation back would be
permissible under New Jersey law. 1

(Mem. Op. and Order, at 6-7.)

The Court then analyzed whether the claims against
Defendants Borton and Finnegan relate back under Fed. R. Civ. P.
15(c)(1)(C), which provides:
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
party’s identity.

1

In particular, the Court noted that in deciding whether
relation back was permissible under N.J. Ct. R. 4:26-4, the
Court must consider Plaintiff’s efforts to identify Defendants
Borton and Finnegan before the statute of limitations expired,
as well as evidence concerning prejudice to these defendants.
(Mem. Op. and Order, at 6.) In deciding whether relation back
was permissible under N.J. Ct. R. 4:9-3, the Court stated that
additional evidence was necessary on the issues of 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 as
defendants. (Id. at 7.)
7

Fed. R. Civ. P. 15(c)(1)(C).

The Court again concluded that it

must consider evidence outside of the pleadings concerning
whether Defendants had notice within the time for serving the
summons and whether Defendants knew or should have known that
they would have been named as defendants but for a mistake
concerning the proper party’s identity.

(Mem. Op. and Order, at

8-9.)
In their supplemental briefing, Defendants present evidence
that they did not have notice of this action until the summer of
2014, which they argue precludes relation back under either New
Jersey or federal law.

(Defs.’ SOF ¶¶16, 17; Decl. of Charles

Finnegan [Doc. No. 97-4] ¶ 3; Decl. of Scott Borton [Doc. No.
97-4] ¶ 3.)

Plaintiff’s sole argument in opposition is that

Defendants may not have had actual notice of this action, but
they had constructive notice of the claims against them when codefendants Gloucester County and Gloucester County Department of
Correctional Services were served with the original complaint.
(Pl.’s Opp. Br. 1-2.)

Plaintiff cites Singletary, 266 F.3d at

197, in support of this assertion.

(Id.)

In Singletary, the Third Circuit discussed the conditions
required for relation back under Rule 15(c)(3), which pursuant
to the 2007 amendments to the Federal Rules of Civil Procedure

8

is now numbered Rule 15(c)(1)(C). 2

Therefore, while this Court

initially provided the parties an opportunity to address
relation back under either the New Jersey relation back rule
pursuant to Rule 15(c)(1)(A), or the federal relation back rule
pursuant to Rule 15(c)(1)(C), it appears that Plaintiff only
argues for relation back under the federal rule.

Accordingly,

the Court at this time will not consider relation back under the
New Jersey relation back rules and will proceed in its analysis
only under Rule 15(c)(1)(A).
The first requirement is met as the claims against
Defendants Borton and Finnegan arise out of the same occurrence
described in the original pleading.

However, Plaintiff must

also show that these defendants (i) received notice of the
action within 120 days (the period provided by Rule 4(m))
following the filing of the original complaint; and (ii) knew or
should have known that they were intended to be named as parties
to the lawsuit but for a mistake concerning their identities.

2

The current version of the rule is almost identical to the
former version, except that the former version of the rule
called for notice of the “institution” of the action, whereas
the current version of the rule only requires notice of the
existence of the action. As stated in the Advisory Committee
Note concerning the amendment, the amended rule “omits the
reference to ‘institution’ as potentially confusing. What
counts is that the party to be brought in have notice of the
existence of the action, whether or not the notice includes
details as to its ‘institution.’” Fed. R. Civ. P. 15 advisory
committee’s note to 2007 amendment.
9

Fed. R. Civ. P. 15(c)(1)(C).

Both the notice and knowledge

requirements must be met.
Plaintiff does not claim, nor is there any evidence of
record indicating, that Defendants Borton or Finnegan received
actual notice of the action within 120 days of the date the
original complaint was filed.

These defendants represent in

sworn declarations that they did not receive notice until the
summer of 2014, which is well beyond 120 days from the filing of
the original complaint in August 2013.

However, actual notice

is not necessary to satisfy the conditions of relation back.
Singletary, 266 F.3d at 195.
In Singletary, the Third Circuit recognized that
constructive or imputed notice of an action are also sufficient
to satisfy the notice requirement of Fed. R. Civ. P. 15(c).

Id.

The Third Circuit specifically approved of two methods of
imputed notice: the “shared attorney” method and the “identity
of interest” method.

Id. at 196-97. 3

Under the “identity of

interest” method, when a proposed new defendant “is so closely
related to his employer for the purposes of this type of
litigation that these two parties have a sufficient identity of
interest,” litigation against the employer “serves to provide

3

Plaintiff does not argue that notice to Defendants Finnegan and
Borton could be imputed through the “shared attorney” method;
the Court therefore does not address such method at this time.
10

notice of the litigation to the employee.”

Id. at 198.

The

Third Circuit in Singletary considered whether an employee to be
added as a defendant had a sufficient identity of interest with
the employer, who was originally named as a defendant, holding
that “absent other circumstances that permit the inference that
notice was actually received, a non-management employee . . .
does not share a sufficient nexus of interests with his or her
employer so that notice given to the employer can be imputed to
the employee for Rule 15(c)[] purposes.”

Id. at 200.

The Third Circuit again applied the “identity of interest”
method of imputing notice in Garvin v. City of Philadelphia, 354
F.3d 215 (3d Cir. 2003).

In that case, the plaintiff sued the

City of Philadelphia and a fictitiously-named defendant,
“Officer Doe,” and then sought to substitute the names of four
police officers for the Doe defendant after the statute of
limitations had expired.

Id. at 217-18.

In affirming the

district court’s denial of the plaintiff’s motion to amend, the
Third Circuit noted that the individual police officers were
non-managerial employees and concluded that they did not share a
sufficient nexus of interests with their employer, the City of
Philadelphia, for purposes of imputing notice under the
“identity of interest” method.

Id. at 227.

In so finding, the

Third Circuit noted that “[t]he individual police officers . . .
are ‘not highly enough placed in the [city] hierarchy for us to
11

conclude that [their] interests as . . . employee[s] are
identical to the [city’s] interests.’”

Id. (quoting Singletary,

266 F.3d at 199).
Here, Plaintiff argues that notice to Borton and Finnegan
should be imputed based upon notice to their employers,
Gloucester County and Gloucester County Department of
Correctional Services.

Although Plaintiff has had the benefit

of discovery, including the depositions of both of the moving
defendants, he provides no evidence that Defendants Borton and
Finnegan were management-level employees, nor is there evidence
concerning their placement in Gloucester County’s hierarchy or
any other circumstances from which the Court can infer that they
had notice of this action through either of the Gloucester
County defendants.

Accordingly, as was the case in both

Singletary and Garvin, the Court finds no basis to conclude that
the individual corrections officers were “‘highly enough placed
in the [county] hierarchy . . . that [their] interests as . . .
employee[s] are identical to the [county’s] interests.’”
Garvin, 354 F.3d at 227; Singletary, 266 F.3d at 199. 4

4

The Court recognizes that Plaintiff also named Jesse Yamada as
a defendant in the original complaint. Yamada is a sergeant
and, according to the averments of the amended complaint, was
involved in the alleged beating of Plaintiff along with
Defendants Borton and Finnegan. Plaintiff does not argue that
Yamada has an “identity of interest” with Borton and Finnegan,
such that notice to Yamada could be imputed to Borton and
Finnegan, and the Court deems any such argument waived.
12

Furthermore, the Court notes with respect to Defendant
Finnegan that he began working for the Salem County Department
of Corrections on August 21, 2013, following the closure of the
Gloucester County Jail on June 30, 2013.
Finnegan [Doc. No. 97-4] ¶ 2.)

(Decl. of Charles

The original complaint was not

filed in this action until August 29, 2013, and Gloucester
County and the Gloucester County Department of Correctional
Services were not served until September 9, 2013.

Therefore,

Defendant Finnegan was not even employed by either of the
original Gloucester County defendants at the time they received
notice of the action, and there is thus no factual basis to
impute notice on Defendant Finnegan based upon notice to the
Gloucester County defendants.
Finally, as noted above, in addition to notice, the newlyadded defendant must have known or should have known “that the
action would have been brought against it, but for a mistake
concerning the proper party's identity.”
15(c)(1)(C)(ii).

Fed. R. Civ. P.

Because Plaintiff has not met the notice prong

Additionally, while it is possible that Yamada could have told
Borton and Finnegan that suit had been brought, Plaintiff
provides no argument that Yamada’s interests are so intertwined
with those of Borton and Finnegan that it can be assumed that
Yamada would have informed Borton and Finnegan about the
lawsuit. Moreover, the Court has been presented with no
information to suggest that Yamada did tell Borton or Finnegan
of the lawsuit, even though the parties had an opportunity to
obtain discovery on this issue.
13

of the relation back test, the Court does not need to reach the
third prong.

See Singletary, 266 F.3d at 201.

The Court notes,

nevertheless, that Plaintiff fails to present any evidence
concerning the third prong of the relation back test.

Plaintiff

took the depositions of Borton and Finnegan after he added them
as parties to this action, and these defendants’ motion to
dismiss was pending at the time of the depositions.

As such,

Plaintiff was aware of the relation back issue but failed to
adduce evidence in support of all prongs of the relation back
test. 5

5

The Court also questions whether relation back would be
available under Fed. R. Civ. P. 15(c)(1)(C). The rule assumes
that a defendant was not originally named because of a mistake
as to the proper party’s identity. Here, Plaintiff testified
that he knew of the identities and roles of Finnegan and Borton
as early as 2011, yet he failed to name them as defendants when
filing the original complaint. In Krupski v. Costa Crociere
S.p.A., 560 U.S. 538, 548, 130 S. Ct. 2485, 177 L. Ed. 2d 48
(2010), the United States Supreme Court recognized that the
relevant inquiry in deciding relation back is not whether the
plaintiff knew of the existence of a defendant, but whether a
prospective defendant knew that it would have been named as a
party but for an error as to his identity. The Supreme Court
explained that the reason for the rule is that “a plaintiff
might know that the prospective defendant exists but nonetheless
harbor a misunderstanding about his status or role in the events
giving rise to the claim at issue, and she may mistakenly choose
to sue a different defendant based on that misimpression.” Id.
at 550, 130 S. Ct. 2485. However, the Supreme Court also
distinguished between a situation in which a plaintiff is aware
of the existence of two parties and chooses to sue the wrong
one, and a situation where a plaintiff “mak[es] a deliberate
choice to sue one party instead of another while fully
understanding the factual and legal differences between the two
parties,” referring to the latter situation as “the antithesis
of making a mistake concerning the proper party's identity.”
14

III. CONCLUSION
The claims against Defendants Borton and Finnegan are
barred by the statute of limitations.

These defendants provided

uncontroverted evidence that they did not receive notice of this
action within 120 days of the filing of the original complaint,
and Plaintiff fails to provide any evidence to demonstrate that
they had constructive notice of the action.

Nor is there any

evidence that Borton or Finnegan knew or should have known that
the action would have been brought against them, but for a
mistake concerning the proper party's identity.

Accordingly,

the Court finds that the claims against Borton and Finnegan do
not relate back to the original complaint and the claims against
them are therefore subject to dismissal as time-barred.
An Order accompanying this Opinion will be entered.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated: June 16, 2015
At Camden, New Jersey

Id. at 549, 130 S. Ct. 2485. This case appears to fall within
the latter situation, and Defendants Borton and Finnegan could
not have known that they would be named as defendants but for a
mistake as to their identities when there was, in fact, no
mistake as to their identities or the roles they played in the
alleged attack upon Plaintiff.
15