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withdrawn their request to join David Scott.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
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