ELLAISY v. CITY OF ATLANTIC CITY et al

Filing 127

OPINION. Signed by Judge Noel L. Hillman on 9/30/2021. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MOHAMED ELLAISY,
Plaintiff,

1:13-cv-05401-NLH-JS
OPINION

v.
CITY OF ATLANTIC CITY, et
al.,
Defendants.
APPEARANCES:
JENNIFER ANN BONJEAN
ASHLEY BLAIR COHEN
BONJEAN LAW GROUP, PLLC
750 LEXINGTON AVENUE
9TH FLOOR
NEW YORK, NY 10022
On behalf of Plaintiff
MORRISON KENT FAIRBAIRN
MICHAEL A. ARMSTRONG & ASSOCIATES, LLC
79 MAINBRIDGE LANE
WILLINGBORO, NJ 08046
On behalf of Defendant City of Atlantic City
STEVEN SAMUEL GLICKMAN
RUDERMAN & ROTH, LLC
150 MORRIS AVENUE
SUITE 303
SPRINGFIELD, NJ 07081
On behalf of Defendant Officer Sterling Wheaten
TODD J. GELFAND
BARKER, GELFAND & JAMES
LINWOOD GREENE

SUITE 12
210 NEW ROAD
LINWOOD, NJ 08221
On behalf of Defendants Officer Brian Hambrecht,
Juanita Harris, Matthew Rogers
ALYSON M. TOMLJENOVIC
AMY ELIZABETH RUDLEY
RUSSELL L. LICHTENSTEIN
COOPER, LEVENSON, PA
1125 ATLANTIC AVENUE
THIRD FLOOR
ATLANTIC CITY, NJ 08401-4891
On behalf of Defendants Borgata Hotel And Casino, Michael
Atkinson, John Applegate
HILLMAN, District Judge
This action arises from an incident that occurred at the
Murmur Nightclub in the Borgata Hotel and Casino on September
13, 2011.

Plaintiff, Mohamed Ellaisy, a patron at the

nightclub, claims he was a victim of excessive force by Atlantic
City police officers who were working special employment details
at the Borgata or who were otherwise called to the scene.
Plaintiff first filed his original complaint, pro se, on
September 10, 2013. 1

On December 1, 2013, Plaintiff, at that

Although Plaintiff initiated this action pro se, Defendants
argue that because Plaintiff has admitted that the original
complaint was “ghostwritten” by an attorney, his pleading should
not be construed as a pro se complaint, and in that regard, not
construed liberally as pro se complaint should be. See Haines
v. Kerner, 404 U.S. 519, 520 (1972), reh’g denied, 405 U.S. 948
(1972). Plaintiff’s pro se status when he filed his original
complaint is not relevant to the Court’s analysis of Defendants’
motion, as set forth below.
1

2

time represented by counsel, filed an amended complaint.

As of

March 28, 2014, the matter was stayed for several years during
which time Plaintiff was prosecuted and convicted at the trial
level for indictable offenses, including aggravated assault,
based on what he claims was false and fabricated testimony of
the Atlantic City police officers and other Borgata employees.
On July 16, 2019, the Superior Court of New Jersey,
Appellate Division, reversed Plaintiff’s criminal convictions,
finding that his due process rights were violated because
exculpatory evidence regarding Defendant Wheaten’s complaint
history was concealed from the defense.

The Appellate Division

further held that because Wheaten gave false testimony at
Plaintiff’s criminal trial regarding his internal affairs
history, Plaintiff’s criminal conviction should be vacated and
the matter remanded for a new trial.

The Atlantic County

Prosecutor’s office subsequently dismissed all charges against
Plaintiff.
Thereafter, Plaintiff sought leave to lift the stay in this
action and amended his complaint again to add parties and
claims. 2

On January 17, 2020, Plaintiff, through new counsel,

filed a second amended complaint against a number of Atlantic
This matter had been originally assigned to the Honorable
Judge Jerome B. Simandle, U.S.D.J. On November 13, 2019, the
matter was reassigned to the undersigned upon the passing of
Judge Simandle.
2

3

City police officers, the City of Atlantic City, Borgata Hotel
and Casino, and several Borgata employees.

(Docket No. 46.)

In

addition to the negligence claims against Borgata and the
constitutional claims against the individual police officers
brought pursuant to 42 U.S.C. § 1983, Plaintiff’s second amended
complaint alleges that Atlantic City’s policies and practices
were the moving force behind the constitutional violations he
suffered.

In February 2020, Defendants filed their answers to

the amended complaint, 3 and the parties commenced written
discovery.
Currently pending is the motion to dismiss filed by two
Atlantic City police officers - Juanita Harris and Matthew
Rogers - who were not specifically named as defendants in the
action until Plaintiff filed his second amended complaint
(“SAC”) on January 17, 2020. 4

According to Plaintiff’s SAC, at

Defendant Michael Ordonez, averred to be a Borgata employee,
failed to respond to Plaintiff’s second amended complaint.
Plaintiff requested a clerk’s entry of default, which was
entered on December 7, 2020.
3

As discussed below, prior counsel for Harris and Rogers filed
an answer on their behalf on February 17, 2020. These
defendants therefore appropriately bring their motion pursuant
to Fed. R. Civ. P. 12(c), which provides for a judgment on the
pleadings. See Hackensack Riverkeeper, Inc. v. Delaware Ostego
Corp., 450 F. Supp. 2d 467, 484 (D.N.J. 2006) (explaining that a
defendant may move to dismiss a complaint or parts of a
complaint before or after filing an answer, where a motion made
before an answer is filed is a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6), and a motion made after an answer is
filed is a motion for judgment on the pleadings pursuant to Fed.
4

4

the time of the incident giving rise to his claims, Defendants
Sterling Wheaten and Brian Hambrecht, who were Atlantic City
police officers and named in this action since the outset of
this case, were working their regular special employment detail
at Murmur nightclub at the Borgata, which meant that they were
working in Atlantic City police uniforms and were considered onduty.

This shift was outside their normal shift and they were

being compensated above and beyond their normal police salaries.
Plaintiff claims that Wheaten and Hambrecht assaulted him which the SAC explains in detail - and after they dragged him
into a back room outside the view of the security cameras, they
continued to physically assault him.

Plaintiff claims that

eventually other Atlantic City police officers arrived on scene,
including Harris and Rogers.

Plaintiff claims that while he was

handcuffed, Wheaten punched him in the chest, Harris struck him
in the face, and Rogers dragged him down the hallway by his neck
while choking him.

(Docket No. 46 at 8.)

Some of these actions

were captured on the surveillance video.
In their motion to dismiss, Harris and Rogers argue that
their belated addition to the case by way of Plaintiff’s January

R. Civ. P. 12(c), and further explaining that the standard under
which a court must analyze a plaintiff’s complaint and the
defendants’ arguments on a Rule 12(c) motion for judgment on the
pleadings is the same as the standard on a motion to dismiss
under Fed. R. Civ. P. 12(b)(6)).
5

17, 2020 SAC is improper because it is well beyond the two year
statute of limitations for Plaintiff’s constitutional claims
arising from conduct on September 13, 2011.

These defendants

argue that the fictitious party practice rule and the relation
back rule cannot save Plaintiff’s claims against them.

In

opposition, Plaintiff argues that the addition of Harris and
Rogers to this action was proper because their inclusion falls
squarely within those rules. 5

The Court agrees with Plaintiff.

As a primary matter, the fictitious party practice rule and
the relation back rule are both methods to add a defendant to a
case after the statute of limitations has run, but the rules are
distinct in their application.

“Relation-back is a way of

justifying the belated addition of a new claim or a new party.
Fictitious-party practice renders the initial filing against the
identified but unnamed defendant timely in the first instance,
subject only to diligent action by the plaintiff to insert
defendant’s real name.”

Greczyn v. Colgate-Palmolive, 869 A.2d

866, 874 (N.J. 2005); see also Viviano v. CBS, Inc., 503 A.2d
296, 304 (N.J. 1986) (explaining the differences between the
fictitious party practice rule and the relation back rule, and
Plaintiff does not dispute that a two-year statute of
limitations governs their claims against Harris and Rogers.
Cito v. Bridgewater Tp. Police Dept., 892 F.2d 23, 25 (3d Cir.
1989) (noting § 1983 actions in New Jersey are governed by New
Jersey’s two-year statute of limitations); see also infra note
7.
5

6

noting that the requirements of the relation back rule “are not
an express prerequisite to recourse to” the fictitious party
practice rule).
New Jersey Court Rule 4:26-4, 6 which is applicable in
federal court, see DeRienzo v. Harvard Industries, Inc., 357
F.3d 348, 353 (3d Cir. 2004) (citing N.J.S.A. 2A:14-2 and N.J.
R. 4:26-4), 7 permits a plaintiff to amend his complaint to
6

The Rule provides, in relevant part,
In any action, irrespective of the amount in
controversy, other than an action governed by R. 4:4-5
(affecting specific property or a res), if the defendant's
true name is unknown to the plaintiff, process may issue
against the defendant under a fictitious name, stating it
to be fictitious and adding an appropriate description
sufficient for identification. Plaintiff shall on motion,
prior to judgment, amend the complaint to state defendant's
true name, such motion to be accompanied by an affidavit
stating the manner in which that information was obtained.
. . .

N.J. Ct. R. 4:26-4.
See also Bryan v. Associated Container Transp. (A.C.T.), 837 F.
Supp. 633, 642-43 (D.N.J. 1993) (discussing Fed. R. Civ. P.
15(c)(1) and the advisory notes) (“Generally, the applicable
limitations law will be state law . . . . Whatever may be the
controlling body of limitations law, if that law affords a more
forgiving principle of relation back than the one provided in
this rule, it should be available to save the claim. Thus, as a
general matter, if New Jersey law would permit the amendment
made by plaintiffs after the running of the statute, the federal
rules permit the amendment.”); Sameric Corp. of Delaware, Inc.
v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998) (“[I]n
actions under 42 U.S.C. § 1983, federal courts apply the state’s
statute of limitations for personal injury.”); Cito v.
Bridgewater Tp. Police Dept., 892 F.2d 23, 25 (3d Cir. 1989)
(“In New Jersey that statute is N.J.S.A. 2A:14–2, which provides
7

7

identify the proper party as long as a John Doe fictitious
designation was included for that specific category of
defendant.

See Yarchak v. Trek Bicycle Corp., 208 F. Supp. 2d

470, 489 (D.N.J. 2002) (citing Mancuso v. Neckles, 747 A.2d 255,
261 n.1 (N.J. 2000) and discussing N.J. Ct. R. 4:26-4) (“[T]he
fictitious party rule permits a plaintiff to preserve a claim
against as yet unidentified potential defendants who may have
contributed to plaintiff's injuries.”).
There are three main elements to the proper application of
the fictitious party rule.

First, the fictitious name

designation must have “an appropriate description sufficient to
identify” the defendant.
304.

N.J. Rule 4:26-4; Viviano, A.2d at

Second, the plaintiff must have exercised due diligence to

ascertain the defendant’s true name before and after filing the
complaint.

DeRienzo, 357 F.3d at 353 (citing Farrell v. Votator

Div. of Chemetron Corp., 299 A.2d 394, 396 (N.J. 1973);
Claypotch v. Heller, Inc., 823 A.2d 844, 848-49 (N.J. 2003);
Mears v. Sandoz Pharms., Inc., 693 A.2d 558, 561-63 (N.J.
1997)).

Third, the application of the fictitious party practice

rule must not prejudice the defendant.

Id.

that an action for an injury to the person caused by a wrongful
act, neglect, or default, must be convened within two years of
accrual of the cause of action.”).
8

Federal Rule of Civil Procedure 15 governs amended and
supplemental pleadings, and subsection (c) provides for three
circumstances in which “[a]n amendment to a pleading relates
back to the date of the original pleading.”
P. 15(c)(1).

Fed. R. Civ.

The effect of this doctrine is to preclude an

amended pleading from being barred by the statute of
limitations.

It is relevant when a pleading that was filed

prior to the expiration of the statute of limitations is amended
after the expiration of the statute of limitations.

If Rule

15(c) is satisfied in a case, then the amended pleading will
relate back to the original pleading for statute of limitations
purposes — in other words, a party opposing the amended pleading
will not be able to successfully argue that it is barred by the
statute of limitations.

Sterling v. New Jersey Aquarium, LLC,

2020 WL 1074809, at *4–5 (D.N.J. 2020).
Rule 15(c) provides that an amendment to a pleading relates
back to the date of the original pleading when:
(A) the law that provides the applicable statute of
limitations allows relation back;
(B) the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence
set out — or attempted to be set out — in the original
pleading; or
(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:
9

(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.
Fed. R. Civ. P. 15(c)(1).
In this case, the original complaint filed within the
applicable statute of limitations on September 10, 2013 did not
name Harris or Rogers - it only named Atlantic City, Wheaten,
Hambrecht, and Borgata. 8

The original complaint contained a

category for fictitious parties, but it was limited to Borgata
employees:
12. Defendants John Doe 1-5 are defendant Borgata employees
present, participating in and assisting the aforementioned
individual named defendants in the violation of plaintiff's
Constitutional rights but are currently unknown to
plaintiff.
(Docket No. 1 at 3.)
On December 1, 2013, less than three months later but after
the expiration of the statute of limitations, Plaintiff filed an
amended complaint.

The amended complaint listed the same

defendants as the original complaint, but it modified the
description of the fictitious parties:
12. Defendants John Doe 1-5 are members of the Atlantic
City Police Department present, participating in and
assisting the aforementioned individual named defendants in
the violation of plaintiff’s Constitutional rights but are
Borgata is listed in the caption and referred to in the
complaint, but Borgata is not specifically listed on the
“parties” section of the original complaint. (Docket No. 1.)
8

10

currently unknown to plaintiff as well as employees of the
City of Atlantic City which participated in the practices
and policies as outlined throughout this Complaint.
13. Defendants Jon Doe 6-10 are employees of defendant
Borgata Hotel and Casino as yet unknown to the plaintiff
which discovery may reveal should be named parties in the
present complaint either as a result of their relationship
to defendant Borgata or the City of Atlantic City.
(Docket No. 6 at 4.)
In a straightforward application of Rule 15(c)(1)(B),
Plaintiff’s amended complaint relates back to the original
complaint because “the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out—or
attempted to be set out—in the original pleading.”

Thus, the

amended complaint, which became the operative complaint once it
was filed, 9 “relates back” to the original complaint - i.e., the
amended complaint is deemed to have been filed at the time the
original complaint was filed, which was before the expiration of
the statute of limitations.

Consequently, Plaintiff’s claims

against “John Doe 1-5” who “are members of the Atlantic City
Police Department present, participating in and assisting the
aforementioned individual named defendants in the violation of
plaintiff’s Constitutional rights” were timely filed.

See Snyder v. Pascack Valley Hospital,303 F.3d 271, 276 (3d
Cir. 2002) (providing that the amended complaint supersedes the
original version in providing the blueprint for the future
course of a lawsuit).
9

11

Plaintiff’s SAC filed on January 17, 2020 also relates back
to the amended complaint, which relates back to the original
complaint, in accordance with Rule 15(c)(1)(B).

Thus,

Plaintiff’s SAC is within the statute of limitations, and the
substitution of Harris and Rogers for the “John Does” in the SAC
implicates the fictitious party practice rule. 10

The Court finds

that the three elements for the application of that rule have
been met.

If the amended complaint did not contain claims against
fictitious parties, the Court would be required to undertake the
Rule 15(c)(1)(C) analysis. In the context of the situation
presented in this case, the outcome would be the same under Rule
15(c)(1)(C) because the analysis under both rules is analogous.
See Sterling, 2020 WL 1074809, at *4–5 (citing Fed. R. Civ. P.
15(c)(1)(C); Fed. R. Civ. P. 4(m); Singletary v. Pa. Dep’t of
Corr., 266 F.3d 186, 194 (3d Cir. 2001)) (explaining the factors
to consider in applying Rule 15(c)(1)(C) where a new party is
added by way of an amended complaint:
10

(1) the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set
out — or attempted to be set out — in the original
pleading;
(2) the party to be brought in by the amendment
received such notice of the action that it will not be
prejudiced in defending on the merits;
(3) the party to be brought in by amendment knew or
should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s
identity; and
(4) the third and fourth requirements must have been
fulfilled within 90 days after the original complaint was
filed, or longer if good cause is shown.).
12

1.

Whether the fictitious name designation has an
appropriate description sufficient to identify Harris
and Rogers

Plaintiff’s fictitious name designation of “members of the
Atlantic City Police Department present, participating in and
assisting the aforementioned individual named defendants in the
violation of plaintiff’s Constitutional rights” clearly
encompasses Harris and Rogers.
2.

Whether Plaintiff exercised due diligence to ascertain
the names of Harris and Rogers before and after filing
the complaint

Plaintiff’s amended complaint, which as noted was filed by
counsel shortly after Plaintiff filed his original complaint pro
se, shows that Plaintiff was aware of other Atlantic City
officers who were involved in the incident, although he did not
know their identities.

Plaintiff included the John Doe 1-5

designation for members of the Atlantic City Police Department;
he specifically stated that “an additional unknown female
officer from the Atlantic City Police Department approached the
Plaintiff and did, unprovoked, punch the plaintiff in the
throat”; he specifically stated that an “unknown member of the
Atlantic City police department and defendant Wheaten punched
him in the head, neck, and chest while restrained and being
escorted out of the hallway and was subjected to various
chokeholds”; and he expressly stated that Defendants Wheaten,
Hambrecht and those unknown John Doe 1-5 Atlantic City police
13

officers violated his constitutional rights under the Fourth,
Eighth and Fourteenth Amendment.

(Docket No. 6 at ¶¶ 3, 12, 26,

34.)
The diligence prong of the fictitious party practice rule
begins before a complaint is filed and continues thereafter.
DeRienzo, 357 F.3d 348, 353.

Thus, the diligence inquiry

applies to Plaintiff’s former counsel, who filed the amended
complaint containing the fictitious party designation
encompassing Atlantic City police officers.

That counsel,

however, has not been in the case since the matter was stayed in
March 2014, and the issue of the unidentified officers and
Plaintiff’s counsel’s efforts to identify those officers was
never raised prior to the stay.

Indeed, no discovery or

substantive motion practice occurred prior the stay which
occurred just four months after the filing of the amended
complaint. 11
In Harris and Rogers’ instant motion to dismiss, which was
filed on February 9, 2021, a year after Harris and Rogers filed
their answer to Plaintiff’s SAC on February 17, 2020, they have
not articulated how due diligence by Plaintiff’s former counsel
The only motions filed were Defendants’ motion to dismiss
Plaintiff’s original complaint, which was dismissed as moot by
the filing of Plaintiff’s amended complaint (Docket No. 9), and
Plaintiff’s motion to stay the proceedings pending the
completion of the criminal matter, which was consented to by
Defendants (Docket No. 15).
11

14

would have revealed their identities before or after Plaintiff
filed suit during the few months after the amended complaint was
filed and the matter was stayed in March 2014 because of the
ultimately unsuccessful prosecution of Plaintiff.

Although the

applicability of the fictitious party practice rule is
Plaintiff’s obligation to establish, 12 it is Defendants’ burden
to prove their affirmative defense that Plaintiff’s claims are
barred by the statute of limitations. 13

In the absence of

evidence by Harris and Rogers demonstrating that their
identities would have been revealed if Plaintiff’s former
counsel had taken reasonable efforts prior to the stay of the
case in March 2014, the Court cannot find that Plaintiff’s
former counsel did not exercise due diligence. 14

See Dziubek v. Cedar Glen Lakes, Inc., 2016 WL 3909536, at *4
(N.J. Super. App. Div. 2016) (citing Lopez v. Swyer, 62 N.J.
267, 276, 300 A.2d 563 (1973)) (explaining that a party seeking
to invoke the fictitious party practice bears the burden of
demonstrating compliance with the rule) (other citation
omitted).
12

See Graves v. Lanigan, 2016 WL 1242766, at *6 (D.N.J. 2016)
(citing In re Cmty. Bank of N. Virginia, 622 F.3d 275, 292 (3d
Cir. 2010), as amended (Oct. 20, 2010) (quoting Bradford–White
Corp. v. Ernst & Whinney, 872 F.2d 1153, 1161 (3d Cir. 1989))
(explaining that the statute of limitations is an affirmative
defense, and the burden to show entitlement to the defense falls
on defendants).
13

See, e.g., Capital Inv. Funding, LLC v. Lancaster Resources,
Inc., 2015 WL 892750, at *12–13 (D.N.J. 20150) (“With regard to
Plaintiff's ‘diligence,’ the Court notes that this matter was
subject to a mandatory stay in connection with Defendant Robert
L'Abbate's bankruptcy proceedings between March 18, 2009 and
14

15

Current counsel’s diligence is clearly evidenced by their
swift actions following their appearance in the case.

On July

16, 2019, the Superior Court of New Jersey, Appellate Division
reversed Plaintiff’s criminal convictions.

Plaintiff’s current

counsel entered their appearance on September 25, 2019, the
magistrate judge lifted the stay and granted their request to
file a SAC in mid-November 2019, and the SAC identifying Harris
and Rogers was filed less than two months later.

During that

period between September 25, 2019 and January 17, 2020, it is
clear from Plaintiff’s SAC that counsel obtained: video footage
from the incident and discovered that Defendants may have
tampered with or destroyed portions of the video footage; police
reports; internal affairs files; use of force reports; and
documentation and evidence from Plaintiff’s prosecution.

From

these efforts, counsel was able to identify the previously
unknown John Doe police officers.

The Court finds that the

diligence element of the fictitious party practice rule has been
met. 15

April 23, 2014. Indeed, the Court stayed this case less than
six months after it was first filed, and before the parties had
conducted any discovery. Plaintiff first sought to add Mr.
Lorenzo as a Defendant approximately four months after the Court
restored this case to the active calendar. Given the unique
circumstances of this case, the Court finds that Plaintiff
exercised the due diligence required to utilize the fictitious
party with regard to Mr. Lorenzo.”).
16

3.

Whether the application of the fictitious party
practice rule would prejudice Harris and Rogers

Harris and Rogers will not be prejudiced by their inclusion
in this case.

First, as of November 2013, Harris and Rogers

knew that their encounter with Plaintiff gave rise to an
excessive force lawsuit because of their involvement in the
internal affairs investigation that Atlantic City initiated on
November 4, 2013, a few weeks after it was served with
Plaintiff’s complaint.

According to the internal affairs file,

the internal affairs investigator obtained the use of force
reports and narrative reports prepared by Harris and Rogers for
“The New Jersey Supreme Court has instructed that [the
district] court should broadly interpret the diligence
requirement to one of a ‘good faith’ effort by plaintiff to
determine the fictitious party’s identity.” Prystowsky v. TGC
Stores, Inc., 2011 WL 3516174, *4 (D.N.J. 2011) (citing Farrell,
299 A.2d at 396) (other citation omitted). Sufficient diligence
is determined on a case-by-case basis. Carroll v. Setcon
Industries, Inc., 2012 WL 3229159, 5-6 (D.N.J. 2012) (citing
DeRienzo, 357 F.3d at 354 (finding sufficient diligence even
though plaintiff was “thwarted in his investigation by
misinformation from government witnesses”); Prystowsky, 2011 WL
3516174, at *4 (determining that sending subpoenas,
investigating potential defendants, and taking depositions
constituted diligence despite ensuing delays); Matynska v.
Fried, 175 N.J. 51 (N.J. 2002) (reasoning that plaintiff's
failure to ascertain defendant's name from plaintiff's own
hospital records constituted a lack of diligence); Mears, 693
A.2d at 631–32 (finding lack of sufficient diligence where “a
simple inquiry at the job site” would have revealed defendant's
name)). The fictitious party practice rule “does not require
exhaustion of every possible avenue of discovery” before a
plaintiff can be found to have exercised due diligence in
ascertaining the true identity of a defendant. Davis v. Egbert,
2010 WL 99113, 4 (D.N.J. 2010) (citing DeRienzo, 357 F.3d at
356).
15

17

the purpose of preparing a “Complaint Brief” summarizing the
case, which was forwarded to the Chief of Police and the City
Solicitor on November 18, 2013.

A review of reports shows that

both Defendants Harris and Rogers responded to the scene and
that Harris was the only female on scene. 16
Second, when Plaintiff filed his SAC specifically naming
Harris and Rogers as defendants on January 17, 2020, Harris and
Rogers’ prior counsel filed an answer to Plaintiff’s SAC on
behalf of Harris and Rogers on February 17, 2020. 17
57. 18)

(Docket No.

Harris and Rogers’ prior counsel had appeared in the case

since its inception in September 2013 as counsel for Atlantic
City, Wheaten, and Hambrecht, and this counsel had filed an
answer to Plaintiff’s amended complaint on behalf of those

Even though Harris and Rogers knew of their involvement in the
incident with Plaintiff, and they participated in the internal
affairs investigation of the incident initiated because of
Plaintiff’s lawsuit, as discussed above with regard to the due
diligence prong, Harris and Rogers have not shown that prior to
March 2014 when the case was stayed publicly available documents
would have revealed their identities and their involvement in
the incident.
16

The answer preserved the running of the statute of limitations
as an affirmative defense. (Docket No. 57 at 12.) Current
counsel for Harris and Rogers appeared in the action on November
5, 2020, but they not file their motion to dismiss until
February 9, 2021.
17

The docket annotation provides, “ANSWER to Amended Complaint,
CROSSCLAIM against BORGATA HOTEL AND CASINO, COUNTERCLAIM
against MOHAMED ELLAISY by All Defendants. (RILEY, TRACY).”
This is incorrect. The answer filed by Tracy Riley is on behalf
of Wheaten, Hambrecht, Harris and Rogers.
18

18

defendants on January 9, 2014.

(Docket No. 14.)

Presumably, in

preparation to file the answer on behalf of Atlantic City,
Wheaten, and Hambrecht, counsel was made aware of Harris’ and
Rogers’ involvement in the incident.

Thus, it would be hard to

believe that Harris and Rogers were not made aware of
Plaintiff’s amended complaint, which not only named Atlantic
City, Wheaten, and Hambrecht, but also “John Doe” police
officers, including a female officer, who were also involved in
the assault on September 13, 2011.

At a minimum, as of November

2013, it is reasonable to conclude that Harris and Rogers (1)
knew they were involved in the incident that was the subject of
a lawsuit, and (2) were aware of the possibility that claims
might be asserted against them because of their involvement.
Nothing has been submitted to the Court to suggest otherwise.
Third, as Plaintiff points out, it has been 10 years since
the incident, and 8 years since the original complaint was
filed, but all the defendants “are in the same boat” with regard
to developing their defenses, as the delay has the same impact
on all the defendants.

Despite the case’s age, discovery is

still relatively in its infancy. 19
See, e.g., Capital Inv. Funding, LLC, 2015 WL 892750, at *12–
13, supra note 14 (where the case was stayed from March 18, 2009
through April 23, 2014, and the court considered the three
prongs of the fictitious party practice rule after the stay was
lifted, finding “nothing in the record suggests that Mr. Lorenzo
would suffer any legitimate prejudice if he were to be added as
19

19

A newly named party suffers some prejudice by being exposed
to potential liability, but “the New Jersey courts focus on the
loss of evidence/witnesses and impairment of the ability to
defend.”
2011).

Williams v. Hurlings, 2011 WL 3890976, *5 (D.N.J.
Factors considered in determining whether a defendant is

prejudiced by the delay in filing the amendment include
“destruction or alteration of evidence after the initial
discovery process, frustration of attempts at subsequent
examination, or witness unavailability or memory lapse due to
delay.”

DeRienzo, 357 F.3d 348, 356.

Harris and Rogers have

not presented any substantive argument as to why they would be
prejudiced as to their ability to establish a defense if they
were to remain in the case.

Moreover, the over four years’

worth of delay was due to several of the defendants’ unclean
hands surrounding Plaintiff’s prosecution, and not because of
any delay by Plaintiff.
Finally, “even though a defendant suffers some prejudice
merely by the fact that it is exposed to potential liability for
a lawsuit after the statute of limitations has run, absent
evidence that the lapse of time has resulted in a loss of
evidence, impairment of ability to defend, or advantage to
a defendant at this stage of the litigation (and Mr. Lorenzo has
made no effort to identify any such prejudice). Indeed, despite
its age, this case remains in its relative infancy, and has not
yet advanced beyond the pleading stage.”).
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plaintiffs, justice impels strongly towards affording the
plaintiffs their day in court on the merits of their claim.”
Claypotch, 823 A.2d at 850 (citations and quotation omitted).
Here, justice favors Plaintiff’s ability to pursue the merits of
his claims against all of the individual Atlantic City police
officers who allegedly assaulted him at the Borgata on September
13, 2011.
CONCLUSION
For the reasons expressed above, Plaintiff’s amended
complaint and second amended complaint relate back to
Plaintiff’s original complaint, which was filed within the
applicable two-year statute of limitations, thus causing each
subsequent amended complaint to have been timely filed.
Plaintiff’s substitution of Juanita Harris and Matthew Rogers
for the John Doe defendants in the second amended complaint was
proper.

The motion of Juanita Harris and Matthew Rogers to

dismiss Plaintiff’s claims will be denied.
An appropriate Order will be entered.
Date: September 30, 2021
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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