DAVIS et al v. PEREZ et al

Filing 48

MEMORANDUM OPINION AND ORDER, Denying 27 Motion to Amend. Signed by Magistrate Judge Joel Schneider on 8/16/17. (js)

[Doc. No. 27]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

NOEL DAVIS, et al.,
Plaintiffs,
Civil No. 16-2784 (NLH/JS)
v.
OFFICER MICHAEL PEREZ, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on plaintiffs’ Motion to
Amend Complaint [Doc. No. 27]. The Court received defendants’
opposition [Doc. Nos. 29, 31], plaintiffs’ reply [Doc. No. 32],
the

parties’

supplemental

submissions

served

at

the

Court’s

request [Doc. Nos. 40, 42], and recently held oral argument.
Plaintiffs’ motion seeks to add six (6) new defendants. For the
reasons to be discussed, plaintiffs’ motion is DENIED.
Background
Plaintiffs’

complaint

was

filed

on

May

17,

2016.

The

complaint alleges that on September 18, 2014, plaintiff Noel
Davis was visiting her boyfriend, plaintiff Dhameer White, at
his

address

in

Voorhees,

New

Jersey,

when

Voorhees

Township

(“Voorhees”) police officers burst in and raided the residence.
Plaintiffs allege before the police left they took White’s cell
1

phone and deleted the video White took of the raid. Plaintiffs
allege

they

suffered

physical

injury,

pecuniary

harm,

fear,

humiliation and emotional distress from defendants’ raid. The
complaint

named

as

defendants

Police

Officer

Michael

Perez,

Voorhees Township, d/b/a Voorhees Police Department, and John
Does 1-10. Plaintiffs assert claims for excessive force/assault
and battery, false arrest, false imprisonment, first amendment
violations,
(N.J.S.A.

violation

10:6-2),

of

the

wrongful

New

search

Jersey
and

Civil

Rights

seizure,

and

Act

Monell.

Plaintiffs’ proposed amended complaint originally sought to join
seven

(7)

police

raid—Lance
Vincent

officers

Klein

(Detective),

Saputo,

Ryan

allegedly

involved

in

Anthony
Nicholas

Brennan,

Russo

Gruber,

plaintiffs’

(Investigator),
Chuck

Fowler

(Sergeant) and David Scott (Detective). Plaintiffs have since
withdrawn their request to join David Scott. [Doc. No. 40].
By way of further background, after the complaint was filed
on May 17, 2016, the Rule 16 Scheduling Conference was held on
August 31, 2016. Thereafter, November 1, 2016 was the date set
to amend pleadings. [Doc. No. 18]. The original fact discovery
deadline

was

March

31,

2017.

Id.

This

deadline

was

later

extended to May 31, 2017 [Doc. No. 26]. In order to assure that
discovery was completed on time, and because the parties delayed
taking relevant depositions, the Court Ordered the parties to
agree on dates to take the remaining fact depositions in the
2

case. The deposition dates were set in an Order entered on March
28, 2017. [Doc. No. 25]. The present motion was filed on April
10, 2017. [Doc. No. 27]. All discovery in the case is complete.
The Court stayed the filing of summary judgment motions pending
the decision on this motion.
Defendants

argue

plaintiffs’

motion

should

be

denied

because it is late, unduly delayed, and there is no good cause
to extend the deadline to amend pleadings. Defendants also argue
they will be prejudiced by plaintiffs’ amendment. In addition,
defendants

argue

plaintiffs’

amendment

is

futile

because

the

claims against the new parties are barred by the statute of
limitations. Not unexpectedly, plaintiffs disagree. Plaintiffs
argue good cause exists to grant their amendment because at all
relevant times they acted diligently and in good faith, and
defendants and the new parties will not be prejudiced by the
proposed joinder. Plaintiffs also argue their claims are not
barred by the statute of limitations because they relate back to
the filing of the original complaint pursuant to Fed. R. Civ. P.
15(c)(1)(C)(ii) and N.J.R. 4:9-3.
Discussion
Pursuant to Fed. R. Civ. P. 15(a), leave to amend pleadings
“shall be freely given when justice so requires.” Leave shall be
freely

given

in

the

absence

of

undue

delay,

bad

faith

or

dilatory motive on the part of the movant, repeated failure to
3

cure

deficiencies

in

previous

amendments,

undue

prejudice

or

futility of the amendment. Foman v. Davis, 371 U.S. 178, 182
(1962); see also Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.
2000). “[A]bsent undue or substantial prejudice, an amendment
should

be

grounded

allowed
in

unexplained

bad

under
faith

delay,

Rule
or

15(a)

dilatory

repeated

failure

unless

‘denial

[can]

be

truly

undue

or

deficiency

by

motive,
to

cure

amendments previously allowed or futility of amendment.’” Long
v.

Wilson,

393

F.3d

390,

400

(3d

Cir.

2004)(emphasis

in

original) (quoting Lundy v. Adamar of New Jersey, Inc., 34 F.3d
1173, 1196 (3d Cir. 1994)). An amendment sought pursuant to Rule
15(a)

shall

be

permitted

unless

it

would

be

inequitable

or

futile. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002).1
Further,

since

plaintiffs’

motion

was

filed

after

the

Court’s November 1, 2016 deadline to amend pleadings expired,
plaintiffs must satisfy the standard set forth in Fed. R. Civ.
P. 6(b)(1)(B). This rule provides that when an act may or must
be done in a specified time the Court may, for good cause,
extend the time on motion made after the time has expired if the
party failed to act because of “excusable neglect.”
1.

Good Cause,
Prejudice

Undue

Delay,

Excusable

Neglect

and

Defendants do not argue plaintiff acted in bad faith or
repeatedly failed to cure deficiencies in previous amendments.
1

4

For the following reasons, the Court finds that plaintiffs
have not established good cause to excuse their late filing and
to extend the current scheduling deadlines. The Court also finds
plaintiffs’
establish

motion

was

excusable

unduly

neglect

delayed
for

and

their

plaintiffs

tardiness.

cannot

Frankly,

plaintiffs have not explained why they waited so long to file
their joinder motion.
Although the incident in question occurred on September 18,
2014, plaintiffs did not seek to join the new defendants until
they filed their motion on April 10, 2017. This was almost one
year after the complaint was filed (May 17, 2016) and six months
after

the

deadline

to

amend

pleadings

(November

1,

2016)

expired. Further, the motion was filed after the expiration of
the

original

fact

discovery

deadline

of

March

31,

2017.

Plaintiffs’ delay is not excusable. Plaintiffs could have easily
identified the police officers at issue before the complaint was
filed

by

obtaining

copies

of

the

relevant

police

report(s).

Further, Voorhees’ September 14, 2017 Rule 26 disclosures named
Voorhees, Brennan and the existence of arrest reports, police
narratives and use of force reports. See Defendants’ June 20,
2017

Letter

Brief

(“LB”)

at

2,

Doc.

No.

42.

In

addition,

Voorhees’ November 15, 2016 answers to interrogatories disclosed
the

identities

stated

they

of

were

officers

plaintiffs

involved

with
5

now

want

plaintiff’s

to

join

and

incident—Gruber,

Saputo, Russo, Brennan and Klein. See id. at Exhibit B. Thus,
plaintiffs knew or should have known the identities of all the
police

officers

deadline

to

involved

amend

in

pleadings

their

incident

expired,

and

long
even

before

the

before

the

complaint was filed.
To establish good cause the moving party must demonstrate
that it could not reasonably meet the court’s deadline despite
its diligence. Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d
Cir. 1986). The determination of good cause depends upon the
diligence

of

the

moving

party.

Spring

Creek

Holding

Co.

v.

Keith, C.A. 02-376 (JLL), 2006 WL 2403958, at *3 (D.N.J. Aug.
18, 2006). The moving party has the burden of demonstrating that
despite

its

diligence

it

could

not

reasonably

have

met

the

deadlines in the Court’s Scheduling Order. Id. (citing Hutchins
v. United Parcel Service, Inc., C.A. 01-1462, 2005 WL 1793695,
at *3 (D.N.J. July 26, 2005)).
The Court finds that plaintiffs have not established good
cause to extend the deadline to amend pleadings. This is true
because plaintiffs could have easily moved to timely join the
proposed new defendants. After all, their names were listed in
documents

publicly

available

before

the

complaint

was

filed.

Indeed, plaintiffs acknowledge this fact: “[t]hese officers are
all identified in police reports as the officers that interacted
with Plaintiffs on the date of the subject incident.” Memo of
6

Law at 1, Doc. No. 27. Further, the police officers’ names were
disclosed

early

in

the

case.

Under

these

circumstances,

plaintiffs cannot show good cause to excuse their late filing
and their motion must be denied. Extensions of time without good
cause would deprive courts of the ability to effectively manage
cases

on

their

overcrowded

dockets

and

severely

impair

the

utility of Scheduling Orders. Koplove, 795 F.2d at 18.
The Court is aware that plaintiffs did not complete the
proposed new defendants’ depositions until May 18 and 22, 2017.
However,

plaintiffs

could

have

and

should

have

taken

their

depositions early in the case. Moreover, plaintiffs did not need
the

depositions

to

join

the

new

parties.

This

is

plainly

evidenced by the fact that plaintiffs filed the present motion
on April 10, 2017, before they completed all the police officer
depositions.

Thus,

it

is

clear

plaintiffs

could

have

timely

filed their motion to amend. Rule 16 Scheduling Orders are at
the heart of case management. Koplove v. Ford Motor Co., 795
F.2d 15, 18 (3d Cir. 1986). If these Orders could be disregarded
without a specific showing of good cause their utility would be
severely impaired.

Scopia Mortgage Corp. v. Greentree Mortgage

Company, 184 F.R.D. 516, 531 (D.N.J. 1998).
Plaintiffs’ motion is also denied because it was unduly
delayed

and

it

will

result

in

substantial

prejudice

to

defendants and the new parties. Although Rule 15 motions are
7

liberally granted, they may be denied where there is undue delay
or prejudice. Forman v. Davis, 371 U.S. 178, 182 (1962). These
two factors go hand in hand. As the Third Circuit noted:
The passage of time, without more, does not require
that a motion to amend a [pleading] be denied;
however, at some point, the delay will become “undue,”
placing an unwarranted burden on the court, or will
become “prejudicial,” placing an unfair burden on the
opposing party…. The question of undue delay, as well
as the question of bad faith, requires that we focus
on the plaintiffs’ motives for not amending their
complaint to assert [their] claim earlier; the issue
of prejudice requires that we focus on the effect on
the defendants.
Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984). Here,
there has been undue delay on plaintiffs’ part which will result
in substantial prejudice to defendants and the new parties if
plaintiffs’ motion is granted. To determine if a party is unduly
prejudiced
will

courts

result

in

examine,

inter

significant

alia,

additional

whether

the

discovery,

amendment
cost,

or

preparation to defend against new facts or theories. Long v.
Wilson, 393 F.3d 390, 400 (3d Cir. 2004); Kennedy v. City of
Newark, C.A. No. 10-cv-1405 (CCC-JAD), 2011 U.S. Dist. LEXIS
73058, at *8 (D.N.J. July 7, 2011).
At the present time fact discovery is over and summary
judgment motions will be filed as soon as the present motion is
decided. The joinder of the new parties will undoubtedly result
in more discovery, delay and increased costs. If joined, the new
parties will likely ask to re-open discovery which will extend
8

the

current

scheduling

deadlines.

The

new

parties

are

also

likely to move to re-depose the plaintiffs on issues particular
to them. Further, the new parties may want to retain experts.
The case is already 2½ years old.

There is no justifiable

reason to delay the final resolution of the case any longer.
For the reasons already discussed, the Court also finds
that plaintiffs have not demonstrated “excusable neglect” for
their failure to file a timely joinder motion. See Fed. R. Civ.
P.

6(b)(1)(B).

“excusable
taking

The

neglect”

account

of

Supreme
inquiry

all

Court
is

relevant

“at

has

explained

bottom

an

circumstances

that

the

equitable

one,

surrounding

the

party’s omission,” including, “the danger of prejudice to the
[other party], the length of the delay and its potential impact
on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.” Pioneer Inv. Serv. Co.
v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 395 (1993).
Plaintiffs had numerous opportunities to join the new parties
early in the case. Plaintiffs have not presented a valid reason
why they waited so long to file their joinder motion. The fact
that plaintiffs filed their motion before all depositions were
completed plainly shows they knew about the existence of the

9

proposed defendants

early on and could have and should have

timely moved to join them as parties.2
2. Futility/Relation Back
Plaintiffs’ motion is also denied because it is barred by
the statute of limitations and is therefore futile. The statute
of limitations that applies to plaintiffs’ civil rights and tort
claims is two years. Walls v. County of Camden, C.A. No. 06-5961
(JEI), 2008 WL 4934052, at *3 (D.N.J. Nov. 13, 2008); N.J.S.A.
'2A:14-2. Plaintiffs’ original complaint was filed on May 17,
2016, and the incident in question occurred on September 18,
2014. Since the present motion was filed on April 10, 2017, more
than two (2) years after plaintiffs’ incident occurred,
plaintiffs’ claims are barred by the statute of limitations
unless they relate back to the filing of the original complaint.
Plaintiffs can rely on Fed. R. Civ. P. 15(c)(1)(A) and (C)
to

relate

back

their

proposed

amended

complaint.

Rule

15(c)

provides.
(c)

Relation Back of Amendments.

(1) When an Amendment Relates Back. 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;
Plaintiffs cannot rely on N.J.R. 4:26-4 to replace their John
Does with the proposed new defendants because they did not
exercise due diligence to identify the new parties and to seek
amendment. Hottenstein v. City of Sea Isle City, C.A. No. 11-740
(JEI), 2012 WL 12898844, at *2 (D.N.J. Aug. 16, 2012).
2

10

(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:
(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.
Relying on Rule 15(c)(1)(A), New Jersey’s relation back rule
comes into play. N.J.R. 4:9-3 states:
An amendment changing the party against whom a claim
is asserted relates back if … [it arises out of the
conduct, transaction, or occurrence set forth in the
original pleading] … and, within the period provided
by law for commencing the action against the party to
be brought in by amendment, that 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.
New Jersey’s relation back law is almost identical to Fed. R.
Civ. P. 15(c)(1)(C). The only material difference between the
two rules is the time period under which the party to be added
(1) received notice of the action and (2) knew or should have
known they would have been named a proper party if not for a
11

mistake or misidentification. Under the applicable federal rule
the period is 90 days from the date of service of the complaint;
under the New Jersey rule the period is greater—any time within
the statute of limitations. Because the analysis under Fed. R.
Civ. P. 15(c)(1)(C) and N.J.R. 4:9-3 is almost identical, the
Court will consider them together.
Plaintiffs’ proposed amendment certainly arises out of the
same transaction or occurrence as set forth in their original
complaint. Therefore, the Court must address whether, within the
respective

designated

periods,

the

proposed

defendants

(1)

received notice of plaintiffs’ action so that they will not be
prejudiced in maintaining a defense on the merits, and (2) they
knew or should have known that, but for a mistake concerning the
identity of the proper party, the action would have been brought
against them. If the proposed defendants did not receive the
requisite notice within the required time periods, the Court’s
analysis is complete and there is no need to decide if the new
parties

are

prejudiced

under

Rule

15(c)(1)(C)(i)

or

if

the

against

the

criteria in Rule 15(c)(1)(C)(ii) are met.
As

noted,

in

order

for

plaintiffs’

claims

proposed defendants to relate back, the proposed defendants must
have received notice of plaintiffs’ action within 90 days of the
filing of the complaint, under Fed. R. Civ. P 15(c)(1)(C), or
within the statute of limitations. The notice requirement can be
12

satisfied through actual notice or imputed notice. Actual notice
does not require actual service of process on the party sought
to be added, but may be deemed to have occurred when a party who
has

some

reason

to

expect

his

potential

involvement

as

a

defendant hears of the litigation through some informal means.
Curbison v. Lee, C.A. No. 05-5280, 2007 WL 2226016, at * 4
(D.N.J. July 31, 2007)(citation and quotation omitted). Actual
notice requires knowledge of the institution of the litigation
and not just knowledge of the incident that gave rise to the
litigation. Id.
There is no evidence in the record indicating the proposed
defendants

had

actual

notice

of

this

lawsuit

within

the

proscribed time periods under either the federal or state rule.
The

Court,

therefore,

will

consider

whether

notice

can

be

imputed to the proposed defendants.
Notice may be imputed to a party sought to be added through
either the “shared attorney” method or the “identity of interest
method.” Id. Notice is imputed through the “shared attorney”
method when the originally named party and the party who is
sought to be added are represented by the same attorney. Id.
Under

the

shared

attorney

method

of

imputing

notice

to

new

defendants, the test is whether the new defendants are being
represented by the same attorney, not whether the new defendants
will be represented by the same attorney. Walters v. Muhlenburg
13

Tp.

Police

Dept.,

536

Fed.

Appx.

213,

215

(3d

Cir.

2013)(citation and quotation omitted); see also Lassoff v. New
Jersey,

C.A.

No.

2006

WL

5509595,

at

*5

(D.N.J.

Jan.

31.

2006)(although the Attorney General defends state employees, the
defense is not automatic and requires an employee to request a
defense).

Accordingly,

attorney method, “a

to

impute

notice

under

the

shared

plaintiff must show that there was some

communication or relationship between the shared attorney and
the John Doe defendant prior to the expiration of the [90]-day
period in order to avail him or herself of the shared attorney
method of imputing notice.” Garvin v. City of Philadelphia, 354
F.3d

215,

Here,

225

(3rd

plaintiff

representation

Cir.

has
or

2003)

not

(internal

presented

communication

any

quotation
evidence

between

counsel

omitted).
of

shared

for

the

defendants and the proposed defendants. The Court simply does
not know if defendants’ present attorney will represent the new
parties. Plaintiffs argue it is reasonable to infer that counsel
of record for defendants had some communication or relationship
with the proposed defendants so that it is reasonable to infer
notice

of

this

action

was

given

to

them

within

the

90-day

period. Reply Brief at 2, Doc. No. 32. Plaintiffs also argue it
can

be

proposed

reasonably
new

inferences

in

inferred

parties.
the

Id.

defense

The

absence

of
14

Court

counsel
declines

evidence.

represents
to

make

Therefore,

the
these
since

plaintiffs’ shared attorney argument is of no avail, they must
show that the new parties had imputed notice of this lawsuit.
Notice is imputed through the “identity of interest” method
when parties are so closely related in their business operations
or other activities that the institution of an action against
one serves to provide notice to the other. Id. at 227. While
plaintiffs do not develop an argument under the “identity of
interest” theory, it is arguable the proposed defendants share
an identity of interest with the named defendants because the
proposed defendants, like the defendants, are Voorhees police
officers.

Further,

September

18,

they

2014

were

all

incident.

involved

The

with

Court,

plaintiffs’

therefore,

must

determine whether the proposed defendants are so closely related
to

their

employer

defendants,
Voorhees

and

litigation

so

(i.e.,

that

the

Officer
to

Perez

the

Voorhees)
institution
serves

proposed

to

and
of

the

police

officer

litigation

against

provide

defendants.

notice

of

the

Singletary

v.

Pennsylvania Dept. of Corrections, 266 F.3d 186, 197 (3d Cir.
2001).
The Third Circuit has identified a number of factors to
consider

in

making

a

determination

under

the

“identity

of

interest” theory. Id. at 198. One factor to consider is whether
the party to be added has any supervisory duties enabling the
court to conclude that his or her interests as an employee are
15

identical to the employer’s interests. Id. at 199 (finding nonmanagement employee does not share sufficient nexus of interests
with

his

or

her

employer

in

order

for

notice

given

to

the

employer to be imputed to the employee). A second factor to
consider is whether the party to be added continues to have
close contact with the plaintiffs, so it would be reasonable to
assume that the proposed defendants were notified of or knew of
the lawsuit commenced by
Ayala

Serrano

v.

Lebron

the plaintiffs.
Gonzales,

Id. at 198 (citing

909

F.2d

8

(1st

Cir.

1990)(finding prison guard had imputed knowledge under “identity
of interest” method because prison guard was present at attack
and continued to work in unit where plaintiff was an inmate)).
Based on the record presented to the Court, the Court finds
plaintiffs cannot impute knowledge to the new parties sufficient
to satisfy the criteria in Rule 15(c)(1)(C) and N.J.R. 4:9-3.
The same issue presented here was decided in a recent Memorandum
Opinion authored by the Honorable Michael A. Shipp. See Valez v.
Fuentes, C.A. No. 15-6939 (MAS)(LHG), 2017 WL 2838461 D.N.J.
June 30, 2017). In Valez, the plaintiff alleged he was assaulted
by

police

officers

after

a

traffic

stop.

After

plaintiff’s

amended complaint was filed after the statute of limitations
ran,

a

newly

joined

officer

moved

to

dismiss

the

amended

complaint. Like this case, the Court had to decide whether the
amended

complaint

related

back
16

to

the

original

complaint.

Plaintiff
joined

argued

police

relation

officer

was

back

was

aware

proper

of

because

plaintiff’s

the

newly

incident

and

should have expected to be joined. The Court disagreed and held
relation back did not apply. The Court reasoned that the new
police officer did not have actual or imputed knowledge that he
would be joined. Specifically, the Court held, “[a]bsent other
circumstances that permit an inference that notice was received,
municipal police officers do not have an identity of interest
with their city employer.” Id. at *4. The Court also stated,
“absent evidence that indicates otherwise, police officers do
not have an identity of interest with fellow police officers
that allows imputation of notice.” Id.3; see also Lassoff, 2006
WL

5509595,

at

*5

(suit

against

one

detective

does

not

necessarily result in notice to another detective). Based on
Valez and Lassoff, the Court finds notice cannot be imputed to
the

new

parties

and,

therefore,

plaintiff

cannot

meet

the

criteria of Rule 15(c)(1)(C) and N.J.R. 4:9-3.4

It is not insignificant that even though plaintiffs took the
depositions of the proposed defendants, plaintiffs did not cite
any testimony evidencing they had actual or imputed knowledge of
plaintiffs’ lawsuit.
4 As noted, since plaintiffs cannot meet the notice requirement,
there is no need for the Court to decide if plaintiffs’ late
motion was a “mistake” or “tactical decision.”
3

17

Conclusion
For

the

foregoing

reasons,

plaintiffs’

Motion

to

Amend

Complaint will be denied. Plaintiffs have not established good
cause to excuse their late filing and to extend the current
scheduling deadlines, plaintiffs’ motion was unduly delayed, the
motion is prejudicial to defendants and the new parties, and
plaintiffs

have

not

demonstrated

excusable

neglect

for

their

tardiness. In addition, having found that plaintiffs’ proposed
amendment does not relate back, the amendment is futile because
it is barred by the statute of limitations.
O R D E R
Accordingly, it is hereby ORDERED this 16th day of August,
2017, that plaintiffs’ Motion to Amend Complaint [Doc. No. 27]
is DENIED.

s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

18