ESTATE OF DAVID HENNIS et al v. BALICKI et al

Filing 160

MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 1/10/2019. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ESTATE OF DAVID HENNIS and
PATRICIA HENNIS,
Plaintiffs,

HONORABLE JEROME B. SIMANDLE

v.
WARDEN ROBERT BALICKI and
CUMBERLAND COUNTY,

Civil Action
No. 16-4216 (JBS-AMD)

Defendants and
Third-Party
Plaintiffs,
v.

MEMORANDUM OPINION

CFG HEALTH SYSTEMS, LLC,
Third-Party
Defendant.

SIMANDLE, District Judge:
In

this

action,

Plaintiff

Patricia

Hennis

(“Plaintiff”)

brings several causes of action arising from the suicide death of
her son, David Hennis, while in custody of Cumberland County Jail,
including failure to properly screen and monitor Mr. Hennis for
any suicidal tendencies. As relevant here, CFG Health Systems, LLC
(“CFG Health” or “Third-Party Defendant”) was not originally named
as a Defendant when the Complaint was filed on July 12, 2016
[Docket Item 1] and was later added as a Defendant in an Amended
Complaint [Docket Item 26] that was filed after the statute of
limitations had expired and not timely served upon CFG Health. For

the reasons discussed in detail in the Court’s Opinion dated March
29, 2018 [Docket Item 105], and as summarized briefly below, CFG
Health was subsequently dismissed as a Defendant in this matter
with prejudice. Defendants/Third-Party Plaintiffs Warden Robert
Balicki

and

Cumberland

County

(collectively,

“Third-Party

Plaintiffs”) have since filed a Third-Party Complaint and implead
CFG Health for indemnification and/or contribution. [Docket Item
128.] Pending before the Court is CFG Health’s motion to strike
the Third-Party Complaint against it pursuant to Fed. R. Civ. P.
14(a)(4). [Docket Item 129.] For the reasons discussed below, the
Court

will

deny

CFG

Health’s

motion

and

permit

Third-Party

Plaintiffs to pursue claims against CFG Health for indemnification
and/or contribution. The Court finds as follows:
1.

Factual and Procedural Background.1 David Hennis was

arrested by the Vineland Police Department on July 22, 2014.
[Docket Item 26 at ¶ 15.] He was subsequently incarcerated at the
Cumberland County Jail on July 22, 2014, until his death by suicide
on July 30, 2014. [Id. at ¶¶ 16, 19.] At the time of Mr. Hennis’s
death, and as discussed below, CFG Health was under contract to
provide health care services to inmates at the Cumberland County
Jail. [Id. at ¶ 12.] According to the Amended Complaint, Defendants

1

The facts alleged are drawn from the Amended Complaint [Docket
Item 26] and Third-Party Complaint [Docket Item 128], and any
exhibits attached thereto, which the Court must accept as true for
purposes of this motion.
2

and CFG Health “failed to properly screen David Hennis for suicidal
tendencies, or any other psychological problems, and also failed
to monitor Mr. Hennis, even though they were aware of prior
attempts to commit suicide by Mr. Hennis.” [Id. at ¶ 21.]
2.

Patricia Hennis, as administrator of Mr. Hennis’s estate

and in her own right, is the named plaintiff in parallel actions
that were filed within two years of Mr. Hennis’ death, which the
parties refer to as Hennis I and Hennis II. Relevant to the motion
currently pending before the Court, Plaintiff initially named CFG
Health as a Defendant in the first case (“Hennis I”), which was
filed on June 28, 2016 and docketed as Civil No. 16-3858, but not
in the second case (“Hennis II”), which was filed on July 12, 2016
and docketed as Civil No. 16-4216. The statute of limitations
expired on July 30, 2016, two years after Mr. Hennis’s suicide.
3.

On August 2, 2016, Plaintiff’s former attorney, Mr. Adam

Starr, filed a Voluntary Stipulation of Dismissal in Hennis I,
which stated, in relevant part, “[t]his Stipulation of Dismissal
shall have no bearing on any other cause of action filed on behalf
of the Est. of David Hennis.” [Hennis I, Docket Item 8.] The Clerk
of Court then closed Hennis I upon the docket.
4.

For several months, Plaintiff and her new attorney, Mr.

Conrad J. Benedetto, actively prosecuted Hennis II without any
mention of CFG Health, which was not a named Defendant. Then in
December 2016, well after the statute of limitations had run,
3

Plaintiff sought leave to add CFG Health as a defendant in Hennis
II for the first time, by way of motion for leave to amend the
Complaint. [Docket Item 23.] The Honorable Ann Marie Donio granted
Plaintiff’s unopposed motion [Docket Item 24], and Plaintiff’s
counsel filed the Amended Complaint on the docket on January 11,
2017. [Docket Item 25.] But Plaintiff did not serve CFG Health the
Amended Complaint until June 8, 2017 [Docket Item 36-12], which is
148 days after the Amended Complaint was filed and well beyond the
strict 90-day requirement set forth in Fed. R. Civ. P. 4(m).
5.

Then-Defendant CFG Health moved to dismiss all claims

against it in Hennis II on the grounds of insufficient service of
process and/or the applicable two-year statute of limitations.
[Docket Item 36.] One month later, CFG Health moved for sanctions
against Plaintiff under Fed. R. Civ. P. 11. [Docket Item 46.] In
response to CFG Health’s motions to dismiss and for sanctions,
Plaintiff

cross-moved

in

Hennis

II

to

vacate

the

Voluntary

Stipulation of Dismissal filed in Hennis I, pursuant to Fed. R.
Civ. P. 60(b)(6), on the basis that the Voluntary Stipulation of
Dismissal was purportedly filed by Plaintiff’s former attorney,
Mr. Starr, without Plaintiff’s knowledge or permission, and to
consolidate Hennis I and Hennis II under Fed. R. Civ. P. 42(a).
Reopening Hennis I and consolidating the two cases, Plaintiff
reasoned, would resolve the statute of limitations or service of
process issues. After new evidence was brought to the Court’s
4

attention after oral argument, including that Plaintiff herself
had explicitly given Mr. Starr permission to file the Voluntary
Stipulation of Dismissal, the Court denied Plaintiff’s crossmotion to vacate and consolidate. Hennis v. Balicki, 2018 WL
1558142, at *9-12 (D.N.J. Mar. 29, 2018). Then, because Plaintiff
failed to name CFG Health as a Defendant within the statute of
limitations and none of the equitable tolling doctrines applied,
the Court granted CFG Health’s motion to dismiss with prejudice.
Id. at *12-14 (D.N.J. Mar. 29, 2018).
6.

Shortly thereafter, Warden Balicki and Cumberland County

filed a Third-Party Complaint against CFG Health. [Docket Item
128.] According to the Third-Party Complaint, at the time of Mr.
Hennis’s death, CFG Health was under an agreement with Cumberland
County to provide various medical services at the jail, including
those

related

to

inmate

mental

health

suicide

prevention

(hereinafter, “the Agreement”). [Id. at ¶¶ 26-27.] “Specifically,
CFG [Health] personnel were required to assess the mental health
of inmates upon their entry into the jail; provide necessary
counseling/treatment and also to manage the mental health of
inmates throughout their incarceration.” [Id. at ¶ 27.] Moreover,
“[t]he

Agreement

[Third-Party

also

provided

Plaintiffs]

from

CFG

[Health]

liability

would

resulting

indemnify
from

CFG

[Health’s] performance under this Agreement.” [Id. at ¶ 29.] In

5

relevant part, the indemnification clause of the Agreement reads
as follows:
[CFG Health] further covenants and agrees to indemnify
and save harmless [Cumberland County] from the payment
of all sums of money or any other consideration(s) by
reason of any, or all, such accidents, injuries,
damages, or hurt that may happen or occur upon or about
such work and all fines, penalties and loss incurred for
or by reason of the violation of any owner regulation,
ordinance or laws of the State, or the United States
while said work is in progress.
[Ex. A to Docket Item 120-1 at 3-4.]
7.

CFG Health moved to strike the Third-Party Complaint

under Fed. R. Civ. P. 14(a)(4). [Docket Item 129.] Third-Party
Plaintiffs have opposed CFG Health’s motion [Docket Item 136], and
CFG Health filed a reply brief. [Docket Item 138.] The motion is
now fully briefed and ripe for disposition. The Court decides the
motion without oral argument pursuant to Fed. R. Civ. P. 78.
8.
party

Standard of Review. Rule 14 provides that “[a] defending

may,

as

a

third-party

plaintiff,

serve

a

summons

and

complaint on a nonparty who is or may be liable to it for all or
part of the claim against it.” Fed. R. Civ. P. 14(a)(1). Once
served, the third-party defendant:
(A)

must assert any defenses against the third-party
plaintiff’s claim under Rule 12;

(B)

must assert any counterclaim against the thirdparty plaintiff under Rule 13(a), and may assert
any counterclaim against the third-party plaintiff
under Rule 13(b) or any crossclaim against thirdparty defendant under Rule 13(g);

6

(C)

may assert against the plaintiff any defense that
the third-arty plaintiff has to the plaintiff’s
claim; and

(D)

may also assert against the plaintiff any claim
arising out of the transaction or occurrence that
is the subject matter of the plaintiff’s claim
against the third-party plaintiff.

Fed. R. Civ. P. 14(a)(2). Moreover, “[a]ny party may move to strike
the third-party claim, to sever it, or to try it separately.” Fed.
R. Civ. P. 14(a)(4).
9.

“The purpose of Rule 14(a) is to avoid circularity of

action and multiplicity of litigation.” Spencer v. Cannon Equip.
Co., 2009 WL 1883929, at *2 (D.N.J. June 29, 2009) (internal
citations omitted). “However, joinder of third-party defendants
under Rule 14 is not automatic; rather, the decision to permit
joinder rests with the sound discretion of the trial court.”
Remington Arms Co. v. Liberty Mut. Ins. Co., 748 F. Supp. 1057,
1068 (D. Del. 1990) (internal citation omitted). Courts have
considered the following factors in exercising their discretion on
whether to permit impleader under Rule 14(a): “(1) the timeliness
of

the

motion;

(2)

the

probability

of

trial

delay;

(3)

the

potential for complication of issues at trial; and (4) prejudice
to the original plaintiff.” Ronson v. Talesnick, 33 F. Supp. 2d
347, 356 (D.N.J. 1999) (internal citations omitted).
10.

Discussion.

CFG

Health

argues

that

the

Third-Party

Complaint should be stricken for three reasons: (1) Third-Party

7

Plaintiffs’ claims are futile; (2) there was undue delay by ThirdParty

Plaintiffs

in

seeking

leave

to

file

the

Third-Party

Complaint; and (3) CFG Health will be unfairly prejudiced by being
brought into this litigation under these circumstances. The Court
addresses each argument in turn.
11.

Third-Party

Plaintiffs’

claims

are

not

futile.

CFG

Health first argues that Third-Party Plaintiffs’ claims are futile
because the August 2, 2016 Voluntary Stipulation of Dismissal
dismissed all claims against CFG Health in Hennis I and this
Court’s March 29, 2018 Order dismissed all claims against CFG
Health in Hennis II with prejudice. [Docket Item 129-4 at 8-10.]
Thus, according to CFG Health, “[a]ssuming arguendo that the
indemnification provision of the agreement is viable, . . . there
can be no finding of liability resulting from CFG [Health’s]
performance under [the] Agreement.” [Id. at 10.] CFG Health is
mistaken.
12.

First, Hennis I and Hennis II are distinct cases that

were filed by two sets of lawyers shortly before the statute of
limitations expired. As the Court has previously noted, see Estate
of Hennis, 2018 WL 1558142, at *12, the Voluntary Stipulation of
Dismissal in Hennis I expressly preserved Plaintiff’s rights to
pursue claims in this case, Hennis II. Simply, Plaintiff could not
pursue the same case on two fronts, and the Voluntary Stipulation
of Dismissal represented Plaintiff’s decision to pursue her claims
8

in Hennis II, with Mr. Benedetto as her attorney, rather than in
Hennis I, with Mr. Starr as her attorney. The Voluntary Stipulation
of Dismissal did not mention any potential claims by and between
then-Defendants

Balicki,

Cumberland

County,

or

CFG

Health.

Accordingly, the Voluntary Stipulation of Dismissal does not bar
Third-Party Plaintiffs Balicki and Cumberland County from seeking
indemnification and/or contribution from CFG Health in this case.
13.

Second,

this

Court’s

March

29,

2018

Order

did

not

preclude the filing of a Third-Party Complaint against CFG Health.
In that Order, the Court dismissed Plaintiff’s claims in the
Complaint against CFG Health, including those for wrongful death
and survivorship, negligence, and alleged civil rights violations,
with prejudice, because Plaintiff failed to name CFG Health as a
Defendant within the statute of limitations and none of the
equitable tolling doctrines applied. The Court determined, as to
Plaintiff only, that the claims were barred by the statute of
limitations, and no determination upon the substantive basis of
Plaintiff’s claim or CFG Health’s conduct was made. Now, the
remaining

Defendants

seek

indemnification

and/or

contribution

under the Agreement by and between Cumberland County and CFG
Health. These unrelated claims are plainly not barred by the
Court’s March 29, 2018 Order.
14.

For

these

reasons,

Third-Party

against CFG Health are not futile.
9

Plaintiffs’

claims

15.

There was no undue delay by Third-Party Plaintiffs. CFG

Health next argues that Third-Party Plaintiffs failed to timely
file the Third-Party Complaint. [Docket Item 129-4 at 11-13.]
16.

As an initial matter, the statute of limitations clearly

does not bar Third-Party Plaintiffs’ claims against CFG Health for
indemnification

and/or

contribution.

“Rather,

the

statute

of

limitations pertaining to a defendant’s claim for contribution or
indemnification begins to accrue when the plaintiff recovers a
judgment against it.” Mettinger v. Globe Slicing Mach. Co., Inc.,
709 A.2d 779, 786-87 (N.J. 1998) (internal citations omitted); see
also Bd. of Educ. Borough of Florham Park v. Utica Mut. Ins. Co.,
798

A.2d

605,

610

(N.J.

2002)

(“Indemnification

obligations

generally accrue only on an event fixing liability, rather than on
preliminary events that eventually may lead to liability but have
not yet occurred.”). Moreover, “[u]nder the entire controversy
doctrine, if those claims are known, they should be asserted in
the original action.” Mettinger, 709 A.2d at 787 (citing Harley
Davidson Motor Co. v. Advance Die Casting, Inc., 696 A.2d 666, 673
(N.J. 1997)). Third-Party Plaintiffs exercised due diligence by
filing a motion for leave to file a Third-Party Complaint against
CFG Health on June 13, 2018 [Docket Item 120], which was less than
three months after the Court dismissed CFG Health as a Defendant.
Thus,

Third-Party

Plaintiffs’

claims

10

against

CFG

Health

for

indemnification and/or contribution may be asserted in this action
and the Third-Party Complaint was timely filed.
17.

There is no prejudice to CFG Health. Finally, CFG Health

argues that the Third-Party Complaint is unfairly prejudicial to
them because of: (1) the Voluntary Stipulation of Dismissal in
Hennis I; (2) Plaintiff’s violation of the statute of limitations
in Hennis II; (3) a delay of trial; and (4) other “issues,” namely,
that “[t]hrough the Third Party Complaint, Plaintiff Hennis may
now be permitted to achieve (i) that which she voluntarily gave up
any right to pursue with prejudice through Hennis I, and/or (ii)
that

which

she

is

barred

by

operation

of

law

(statute

of

limitations, etc.) from pursuing in Hennis II.” [Docket Item 1294 at 13-15.] None of these arguments have merit.
18.

As

discussed

above,

the

Voluntary

Stipulation

of

Dismissal in Hennis I and Plaintiff’s violation of the statute of
limitations in Hennis II do not affect Third-Party Defendants’
right to bring claims for indemnification and/or contribution
against CFG Health pursuant to the Agreement.
19.

As for CFG Health’s third argument, trial in this case

may very well be briefly delayed as a result of the Third-Party
Complaint. But judicial economy will undoubtedly be best served by
permitting Third-Party Plaintiffs to seek indemnification and/or
contribution against CFG Health in these proceedings, rather than
through a separate lawsuit at a later time (assuming arguendo that
11

Warden Balicki and Cumberland County are ultimately found liable
to Plaintiff). See Spencer, 2009 WL 1883929, at *4 (noting that a
delay in trial caused by the reopening of discovery for new claims
and parties “is inevitable in most if not all Rule 14 situations,
since new claims and parties will increase the time to prepare for
trial and the trial complexity, too,” but nonetheless explaining
that

“[s]uch

considerations

must

be

weighed

against

the

alternative prospect of two separate trials and the need for
attempting to coordinate, and in the end possibility consolidate,
the matter for the sake of judicial economy.”).
20.

Moreover, CFG Health has fully participated in discovery

in this and three other consolidated cases, which included more
than 15 depositions and several status conferences. See Hennis,
2018 WL 1558142, at *4 n.2. According to counsel for Third-Party
Plaintiffs,

“[a]t

depositions,

CFG

[Health]

asked

expensive

questions and participated in all aspects of discovery protecting
any interest they may have in this matter. In fact, CFG [Health]
was present at every single deposition and conference between all
parties to this action.” [Docket Item 136 at 8.] Thus, to the
extent CFG Health will require additional discovery from ThirdParty Plaintiffs, any such discovery will be limited and any delay
in trial should be brief.
21.

Finally, the Court does not agree that CFG Health will

be at all prejudiced by Plaintiff’s ability to, through the Third12

Party Complaint, “achieve (i) that which she voluntarily gave up
any right to pursue with prejudice through Hennis I, and/or (ii)
that

which

she

is

barred

by

operation

of

law

(statute

of

limitations, etc.) from pursuing in Hennis II.” [Docket 129-4 at
15.] Regardless of whether CFG Health physically appeared as a
Third-Party Defendant or merely occupied an “empty chair” at any
potential

trial,

Plaintiff

could

hold

Third-Party

Plaintiffs

liable for Mr. Hennis’s death and then Third-Party Plaintiffs, if
found

liable,

would

be

entitled

to

seek

contribution

and/or

indemnification from CFG Health pursuant to the Agreement. In
either event, the outcome from CFG Health’s perspective would be
the same. Since the Third-Party Plaintiffs’ claims for contractual
indemnification and contribution did not have to be asserted until
after these County Defendants are found liable for Plaintiff’s
loss or injury arising within the indemnification/contribution
clauses, CFG Health can scarcely claim it is prejudiced by having
early notice of the claim and an opportunity to participate in the
preparation of this case for trial on Plaintiff’s underlying claims
against the County Defendants. Indeed, as a participant at this
pretrial stage, CFG Health will have the opportunity to cooperate
with Plaintiff and Defendants/Third-Party Plaintiffs in helping to
frame the issues for decision by the jury so that, ultimately, it
can be clear whether the jury’s verdict, if favorable to Plaintiff,

13

is based upon conduct falling within the zone of indemnification
or contribution owed by CFG Health by contract.
22.
not

For these reasons, the Court finds that CFG Health will

suffer

unfair

prejudice

as

a

result

of

the

Third-Party

Complaint against it.2
23.

Conclusion. For the foregoing reasons, the Court will

deny CFG Health’s motion to strike the Third-Party Complaint.
Defendants

and

Third-Party

Plaintiffs

Balicki

and

Cumberland

County are permitted to pursue claims against CFG Health for
indemnification and/or contribution. The accompanying Order will
be entered.

January 10, 2019
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

2

CFG Health also argues that apportionment of fault and credit
for fault of CFG Health is the proper approach in this matter
(i.e., that Defendants Balicki and Cumberland County should
proceed under an “empty chair” defense at trial). [Docket Item
129-4 at 15-19.] Because Third-Party Plaintiffs have properly
impleaded CFG Health pursuant to Fed. R. Civ. P. 14 for the reasons
discussed above, the Court will not address this argument. The
Court is open, however, to considering whether the trial should be
bifurcated with Phase I determining all issues between Plaintiff
and
Defendants
and
Phase
II,
if
necessary,
addressing
indemnification and/or contribution as to CFG Health; this is not
decided now.
14