DAVIS et al v. PEREZ et al
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
NOEL DAVIS, et al.,
Civil No. 16-2784 (NLH/JS)
OFFICER MICHAEL PEREZ, et al.,
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],
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.
complaint alleges that on September 18, 2014, plaintiff Noel
Davis was visiting her boyfriend, plaintiff Dhameer White, at
(“Voorhees”) police officers burst in and raided the residence.
Plaintiffs allege before the police left they took White’s cell
phone and deleted the video White took of the raid. Plaintiffs
humiliation and emotional distress from defendants’ raid. The
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
Plaintiffs’ proposed amended complaint originally sought to join
(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withdrawn their request to join David Scott.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
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
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.
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,
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.
Pursuant to Fed. R. Civ. P. 15(a), leave to amend pleadings
“shall be freely given when justice so requires.” Leave shall be
dilatory motive on the part of the movant, repeated failure to
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
amendments previously allowed or futility of amendment.’” Long
original) (quoting Lundy v. Adamar of New Jersey, Inc., 34 F.3d
1173, 1196 (3d Cir. 1994)). An amendment sought pursuant to Rule
futile. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
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.”
Defendants do not argue plaintiff acted in bad faith or
repeatedly failed to cure deficiencies in previous amendments.
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 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
expired. Further, the motion was filed after the expiration of
Plaintiffs’ delay is not excusable. Plaintiffs could have easily
identified the police officers at issue before the complaint was
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,
Voorhees’ November 15, 2016 answers to interrogatories disclosed
Saputo, Russo, Brennan and Klein. See id. at Exhibit B. Thus,
plaintiffs knew or should have known the identities of all 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
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
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
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
Law at 1, Doc. No. 27. Further, the police officers’ names were
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
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.
depositions early in the case. Moreover, plaintiffs did not need
evidenced by the fact that plaintiffs filed the present motion
on April 10, 2017, before they completed all the police officer
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
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
defendants and the new parties. Although Rule 15 motions are
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
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
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
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.
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
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)
Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment
to a pleading relates back to the date of the original
(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).
(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
(i) received such notice of the action
that it will not be prejudiced in defending on the
(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
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
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
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
criteria in Rule 15(c)(1)(C)(ii) are met.
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
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
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
There is no evidence in the record indicating the proposed
proscribed time periods under either the federal or state rule.
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.
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
2013)(citation and quotation omitted); see also Lassoff v. New
2006)(although the Attorney General defends state employees, the
defense is not automatic and requires an employee to request a
attorney method, “a
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 -day
period in order to avail him or herself of the shared attorney
method of imputing notice.” Garvin v. City of Philadelphia, 354
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
period. Reply Brief at 2, Doc. No. 32. Plaintiffs also argue it
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
determine whether the proposed defendants are so closely related
Pennsylvania Dept. of Corrections, 266 F.3d 186, 197 (3d Cir.
The Third Circuit has identified a number of factors to
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
identical to the employer’s interests. Id. at 199 (finding nonmanagement employee does not share sufficient nexus of interests
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
Id. at 198 (citing
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
amended complaint was filed after the statute of limitations
complaint. Like this case, the Court had to decide whether the
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
necessarily result in notice to another detective). Based on
Valez and Lassoff, the Court finds notice cannot be imputed to
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
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.”
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
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]
United States Magistrate Judge
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