SCANLON v. LAWSON et al

Filing 153

OPINION (Redacted). Signed by Judge Renee Marie Bumb on 2/6/2020. (dmr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

EDWARD SCANLON, IV
Plaintiff

Civ. No. 16-4465 (RMB-JS)

v.
VALERIA LAWSON, et al.,

OPINION
(SEALED)

Defendants
APPEARANCES:
Kevin T. Flood, Esq.
Law Office of Kevin T. Flood, Esq., LLC
181 Route 206
Hillsborough, New Jersey 08844
On behalf of Plaintiff
Justin Robert White, Esq.
Testa Heck Testa & White, PA
424 W. Landis Avenue
Vineland, New Jersey 08360
On behalf of Defendant Wesley Jordan

BUMB, United States District Judge
Plaintiff Edward Scanlon IV brought this action under 42
U.S.C. § 1983, the New Jersey Civil Rights Act (“NJCRA”) § 10:62; and the New Jersey Tort Claims Act (“NJTCA”) § 59:1-1 et seq.
As to Defendant Wesley Jordan (“Jordan”), Plaintiff alleges

This matter now comes before the Court upon Defendant
Wesley Jordan’s (“Jordan”) Motion for Summary Judgment (“Jordan’s
Mot. for Summ. J.,” ECF No. 117); Brief in Supp. of Jordan’s Mot.
for Summ. J., (“Jordan’s Brief,” ECF No. 117-1); Statement of
Material Facts in Support of Jordan’s Mot. for Summ. J. (“Jordan’s
SOMF,” ECF No. 117-2); Plaintiff’s Opposition to Summary Judgment
Motions (“Pl’s Opp. Brief,” ECF No. 130); Plaintiff’s Reply to
Statement of Material Facts in Support of Defendant Wesley Jordan’s
Motion for Summary Judgment (“Pl’s Reply to Jordan’s SOMF,” ECF
No. 130-2); Plaintiff’s Counter-statement of Material Facts (ECF
No. 130-5); and Reply Brief in Supp. of Jordan’s Mot. for Summ. J.
(“Reply Brief,” ECF No. 141).
Pursuant to Federal Rule of Civil Procedure 78(b), the Court
will determine the motion for summary judgment on the briefs
without oral argument. For the reasons set forth below, the Court
grants Jordan’s motion for summary judgment because Plaintiff’s
claims are barred by the statute of limitations.
I.

PROCEDURAL BACKGROUND
Plaintiff filed this action in the New Jersey Superior Court,

Law Division, Cumberland County on March 29, 2016, alleging civil
rights violations under 42 U.S.C. § 1983; the New Jersey Civil
Rights Act § 10:6-2; and tort claims under the New Jersey law,
N.J.S.A. § 59:1-1 et seq. (Compl., ECF NO. 1-1 at 8-18.) The
2

defendants
(“Lawson”), 1

to

the

original

Felix

Mickens

(“Balicki”),

Veronica

(“Baruzza”),

and

individuals)

and

Valeria

Lawson

Robert

Balicki

(“Surrency”),

and/or
Corps.

were

(“Mickens”),

Surrency

John
ABC

complaint

Michael

Baruzza

Jane

1-45

Does

1-45

(fictitious

(fictitious

corporations).

(Compl., ECF No. 1-1 at 10-11.) The action arose out of incidents
alleged

to

have

occurred

at

the

Cumberland

County

Juvenile

Detention Center in March 2012. (Id. at 8.)

Defendants removed the action to this Court on July 22, 2016.
(Notice of Removal, ECF No. 1.) On July 29, 2016, Gregory R. Bueno,
Deputy

Attorney

General

of

New

Jersey,

entered

a

Notice

of

Appearance on behalf of Mickens. (Not. of Appearance, ECF No. 4.)
On August 3, 2016, Balicki, Surrency and Baruzza, represented by
Patrick J. Madden, Esq., filed an answer to the original complaint,

1

Plaintiff sued “Valerie” Lawson and Lawson corrected her name
to “Valeria” upon answering the complaint. (Answer, ECF No. 26
at 1.)
3

and a cross-claim for contribution and indemnification against
Lawson and Mickens. (Answer, ECF No. 6.)
On September 28, 2016, Plaintiff sought an order for release
of records from the State of New Jersey, Department of Children
and Families (“DCF”), and the Court granted the request, subject
to in camera review prior to disclosure to Plaintiff. (Order, ECF
No. 18.) On December 12, 2016, the Court entered a Discovery
Consent Confidentiality Order. (Order, ECF No. 23.)
On December 22, 2016, Gregory R. Bueno, Deputy Attorney
General, filed a Notice of Appearance and Waiver of Service on
behalf of Lawson, and Lawson filed an answer to the original
complaint on January 9, 2017. (Notice of Appearance, ECF No. 24;
Waiver of Service, ECF No. 25; Answer, ECF No. 26.) On May 9, 2017,
the Court completed in camera review of discovery documents and
sent the documents to Plaintiff’s counsel. 2 Plaintiff received
several extensions of time to file a motion to amend the complaint,
and filed a motion to amend the complaint on July 21, 2017, and a
corrected motion on July 26, 2017. (ECF Nos. 39-44.)
The motion to amend was granted on October 20, 2017. (Order,
ECF No. 56.) Plaintiff filed a redacted amended complaint on
October 26, 2017, and later filed an unredacted amended complaint.

2

The Court resent the documents to Plaintiff’s counsel on May 25,
2017, after the correct address was provided. (Letter Order, ECF
No. 37.)
4

(Am. Compl., ECF Nos. 58, 88.) The amended complaint added claims
against

William

M.

Burke

(“Burke”)

Supervisor,

Compliance

Monitoring Unit, New Jersey Juvenile Justice System (“JJC”); Bobby
Stubbs (“Stubbs”) Senior Juvenile Detention Officer at CCJDC;
David Fuentes (“Fuentes”) Juvenile Detention Officer at CCJDC;
Harold Cooper (“Cooper”) Senior Juvenile Detention Officer at
CCJDC; Wesley Jordan (“Jordan”) Juvenile Detention Officer at
CCJDC; and Carol Warren LPN (“Warren”), at CCJDC. (Am. Compl., ECF
No. 88, ¶¶23-32.)
Burke, Lawson and Mickens, represented by Gregory R. Bueno,
Deputy Attorney General, filed an answer to the amended complaint
on December 26, 2017. (Answer, ECF No. 74.) 3 Jordan, represented
by Justin R. White, Esq, filed an answer to the amended complaint
on February 6, 2018. (Answer, ECF No. 84.) Warren and Fuentes,
represented by Daniel E. Rybeck, Esq., entered an answer to the
amended complaint, with a cross-claim for contribution and/or
indemnification by the remaining defendants, on February 15, 2018.
(Answer, ECF No. 85.) Jordan filed the present motion for summary
judgment on August 15, 2019. (“Jordan’s Mot. for Summ. J.,” ECF
No. 117.)

3

On October 10, 2018, Michael Vomacka, Deputy Attorney General,
was substituted as counsel for Lawson, Mickens and Burke.
(Substitution of Attorney, ECF No. 101).
5

II.

THE AMENDED COMPLAINT
Plaintiff alleged the following in the amended complaint.

Plaintiff was born on April 1, 1996, and was a minor at all relevant
times alleged in the amended complaint. (Am. Compl., ¶19, ECF No.
88.)

6

Lawson,

Mickens

and

Burke

of

the

New

Jersey

JJC

“were

responsible for ensuring that the JJC complies with state and
federal law.” (Id., ¶¶21 22, 23.) Balicki, Warden of CCJDC, and
Baruzza, Division Head of CCJDC, are also named as defendants.
(Id., ¶¶25-27.)
In Count One, Plaintiff alleges violations of substantive due
process for excessive use of force, inhumane conditions, lack of
health care and failure to protect from harm under 42 U.S.C. §
1983. (Id., ¶¶36-43.) Count Two of the amended complaint is for
the same conduct in violation of the New Jersey Civil Rights Act,
N.J.S.A. § 10:6-2. (Id., ¶¶44-47.)
For

Count

Three,

Plaintiff

alleges

negligence

under

New

Jersey state law. (Id., ¶¶48-51.) In Count Four, Plaintiff alleges
Defendants’ actions and failure(s) to act
constituted
a
failure
to
act
and/or
discipline,
which
proximately
caused
a
violation of plaintiffs’ civil rights to
procedural and substantive due process with
7

violations
N.J.C.R.A.

are

made

actionable

by

the

Defendants knew or should have known of the
violation of plaintiffs’ rights, and acted and
failed to act so as to permit the violation of
plaintiffs’
rights
intentionally
and/or
recklessly and with deliberate indifference.
Defendants owed Plaintiff a duty of care under
common law and under N.J.S.A. §2A:4A-21 and
N.J.A.C. §§ 13:95-8.9, 13:101-1.1
Defendants Breach[ed] Those Duties by their
Acts and Omissions.
Defendants’ breach of duty was the proximate
cause
of
Plaintiff’s
physical
and
psychological injuries.
(Am. Compl., ¶¶53-57, ECF No. 88.) Count Five is for punitive
damages under New Jersey law. (Id., ¶¶58-61.) Counts Six and Seven
are for intentional and negligent infliction of emotional distress
under New Jersey law. (Id., ¶¶62-69.)
Count Eight is alleged against Jordan, Stubbs and Fuentes for
excessive

force

in

violation

of

the

Fourth

and

Fourteenth

Amendments. (Id., ¶¶70-72.) Counts Nine and Ten are alleged against
Balicki, Surrency, Cooper, Baruzza, Burke, Lawson and Mickens for
supervisory

liability

of

their

subordinates’

violations

of

Plaintiff’s constitutional rights in violation of 42 U.S.C. § 1983.
(Id., ¶¶73-88.)
III. DISCUSSION
A.

Summary Judgment Standard of Review

8

Summary judgment is proper where the moving party “shows that
there is no genuine dispute as to any material fact,” and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Daubert v. NRA Group, LLC, 861 F.3d 382, 388 (3d
Cir. 2017). The burden then shifts to the nonmovant to show, beyond
the pleadings, “‘that there is a genuine issue for trial.” Id. at
391 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
(emphasis in Daubert)).
A party asserting that a fact cannot be or is
genuinely disputed must support the assertion
by:
(A) citing to particular parts of
materials
in
the
record,
including
depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations
(including
those made for purposes of the motion
only),
admissions,
interrogatory
answers, or other materials; or
(B) showing that the materials cited do
not establish the absence or presence of
a genuine dispute, or that an adverse
party cannot produce admissible evidence
to support the fact.

Fed. R. Civ. P. 56(c)(1). “At the summary judgment stage, facts
must be viewed in the light most favorable to the nonmoving party
only if there is a ‘genuine’ dispute as to those facts.” Scott v.
Harris, 550 U.S. 372, 380 (2007) (citing Fed. Rule Civ. Proc.
56(c)).
If a party fails to properly support an
assertion of fact or fails to properly address
9

another party's assertion of fact as required
by Rule 56(c), the court may:
(1) give an opportunity to
support or address the fact;
(2) consider the fact
purposes of the motion;

properly

undisputed

for

(3) grant summary judgment if the motion
and supporting materials--including the
facts considered undisputed--show that
the movant is entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e).
B.

Undisputed Material Facts

The

following

are

undisputed

material

facts

relevant

to

Jordan’s motion for summary judgment based on the statute of
limitations:
•

Plaintiff’s claims against Jordan arise out of a series of
alleged incidents that took place between March 2, 2012 and
March 5, 2012. (Jordan’s SOMF ¶2, ECF No. 117-2; Exhibit A,
¶8, ECF No. 117-5.)

•

10

•

Plaintiff’s (initial) Complaint was filed in the New Jersey
Superior Court on March 29, 2016. (Id., ¶32; Ex. B, ECF No.
117-6.)

•

Plaintiff’s complaint named as defendants Valerie Lawson,
Felix Mickens, Robert Balicki, Veronica Surrency, Michael
Baruzza and various fictitious “John Doe” defendants. (Id.,
¶34.)

•

Plaintiff’s complaint did not name Wesley
defendant. (Id., ¶35; Ex. C, ECF No. 117-7.)

•

On or about October 5, 2016, defendants Balicki, Surrency and
Baruzza provided Rule 26 initial disclosures to Plaintiff
(the “Disclosures”). (Id., ¶36; Ex. C.)

•

The Disclosures identified to Plaintiff ten individuals
likely to have discoverable information. (Id., ¶37; Ex. C.)

11

Jordan

as

a

•

On July 21, 2017, Plaintiff moved before the Court to file
his amended complaint. (Pl’s SOMF, ¶40, ECF No. 117-2; ECF
Nos. 42 and 44).

•

Plaintiff filed his Amended Complaint on October 26, 2017.
(Id., ¶43; ECF No. 58.)

•

Jordan answered the amended complaint and set forth various
defenses including the defense that “[t]he Plaintiff’s
Amended Complaint is barred by the applicable statute of
limitations.” (Id., ¶46; Ex. D, p. 13, ECF No. 117-8.)
C.

Statute of limitations

Jordan seeks summary judgment on the basis that all claims
against him are barred by the statute of limitations. (Jordan’s
Brief, ECF No. 117-1 at 9.) 5 He contends that Plaintiff’s state

5

Jordan also moves for summary judgment on the basis that
Plaintiff’s tort claims are barred due to his failure to comply
with the procedural requirements of the New Jersey Tort Claims
Act. (Jordan’s Brief, ECF No. 11-7 at 13.) The Court need not reach
12

law claims are subject to a two-year statute of limitations under
N.J.S.A. § 2A:14-2, and his federal claims under 42 U.S.C. § 1983
are governed by the same two-year limitations period. (Jordan’s
Brief, ECF No. 117-1 at 9.) Jordan acknowledges that Plaintiff was
a minor when the causes of action accrued, and pursuant to N.J.S.A.
§ 2A-14-21, the two-year limitations period was tolled until
Plaintiff reached the age of majority, eighteen years of age. (Id.)
Plaintiff reached the age of majority on April 1, 2014. (Id. at
10.)

Jordan

asserts

Plaintiff’s

personal

injury

claims

were,

therefore, required to be filed by April 1, 2016. (Id.) Plaintiff,
however, did not file an amended complaint against Jordan until
October 26, 2017, more than one and a half years later. (Id.)
In his motion, Jordan anticipates that Plaintiff will argue
that

his

amended

complaint

“relates

back”

to

his

original

complaint, filed on March 29, 2016. (Id.) Jordan asserts, however,
that the claims against him should not relate back under Federal
Rule of Civil Procedure 15(c)(1)(A) because Plaintiff failed to
exercise due diligence to substitute Wesley Jordan for a “John
Doe” defendant named in the original complaint. (Id. at 10-12.)
Additionally, Jordan asserts Plaintiff knew or should have known

this issue because all of Plaintiff’s claims against Jordan are
barred by the statute of limitations.
13

Jordan’s identity when he filed the original complaint. (Jordan’s
Brief, ECF No. 117-1 at 12.)
Jordan also contends the amended complaint should not relate
back to the original complaint pursuant to Federal Rule of Civil
Procedure 15(c)(1)(C) because Jordan did not have notice of the
Plaintiff’s lawsuit until January 2018. (Id.) Jordan left his
employment with Cumberland County and moved to North Carolina
almost one year prior to the day Plaintiff filed his original
complaint. (Id.)
Plaintiff opposes summary judgment on statute of limitations
grounds. (Pl’s Opp. Brief, ECF No. 130 at 10.)

6

14

relate back to the original complaint under
Federal Rule of Civil Procedure 15(c)(1)(A) because New Jersey’s
fictitious

party

rule

allows

relation

back

where

Plaintiff

diligently sought to identify the defendant’s true name. (Pl’s
Opp. Brief, ECF No. 130 at 12.) Plaintiff asserts the following
facts in support of his diligence in amending his complaint to
identify Wesley Jordan by name.

15

Plaintiff

asserts

his

counsel

could

not

identify

when he received the initial disclosures from
Patrick

Madden,

Esq.

(Id.

at

16.)

Even

after

the

initial

disclosures, Plaintiff contends his counsel did not have detailed
information. (Id. at 16-17.)
On December 12, 2016, Magistrate Judge Joel Schneider entered
a Discovery Consent Confidentiality Order signed by all parties.
(Id. at 17.) On or after January 12, 2017, Plaintiff’s counsel
received discovery, bate stamped Balicki000001-Balicki000776, from
Mark W. Strasle, Esq. of the firm Madden & Madden, P.A., which
detailed

. (Id.) At a status conference before

7

Plaintiff’s Brief contains typographical errors concerning the
discovery dates, which fell in the year 2016 not 2012. (Pl’s Brief,
ECF No. 130 at 16-17.)
16

Magistrate

Judge

Schneider

on

January

23,

2017,

Plaintiff’s

counsel informed the Court that he could now amend the complaint
to add new parties but he was not sure whether there would be
additional

parties

to

add

after

receiving

further

discovery

regarding the DCF report. (Pl’s Opp. Brief, ECF No. 130 at 17.)
Amendment

of

the

pleadings

was

put

on

hold

pending

further

discovery. (Id.)
Discovery regarding the DCF report was subject to in camera
review by Magistrate Judge Schneider. (Id. at 18.) On or about May
9, 2017, in camera review was completed and discovery provided to
plaintiff counsel’s office for “Attorney Eyes Only.” (Id.) At a
telephone status conference on June 15, 2017, the parties discussed
amending the complaint (Id.; Certification of Kevin T. Flood, ECF
No. 130-7, ¶¶14-16.) On June 15, 2017, Magistrate Judge Schneider
entered the following: “AMENDED SCHEDULING ORDER: Plaintiff shall
file

his

motion

to

amend

his

pleading

without

prejudice

to

defendants’ right to assert timeliness defenses by 7/17/2017.”
(Id., ¶20.) On July 13, 2017, Magistrate Judge Schneider extended
the date for plaintiff to amend his pleading to July 21, 2017.
(Id., ¶21.)
Plaintiff also submits that his allegations against Jordan
should relate back to the original complaint under Federal Rule of
Civil Procedure 15(c)(1)(C) because

17

administrative proceedings in 2012. (Pl’s Opp. Brief, ECF No. 130
at 20.) Plaintiff contends there is no prejudice because Jordan
should have known this might result in a subsequent lawsuit against
him and that he was the John Doe named in the original complaint.
(Pl’s Opp. Brief, ECF No. 130 at 20.)
In reply, Jordan contends the following are undisputed facts
entitling him to summary judgment:
•

Plaintiff’s claims against him arose on March 2-5, 2012 and
the State of New Jersey conducted an investigation into the
incident;

•

The State’s written investigative materials included numerous
interviews and statements that identify Jordan by name;

•

Edward Scanlon had been represented by legal counsel as to
the civil claims asserted in this lawsuit since no later than
September 18, 2012;

•

Scanlon turned 18 years of age and reached legal adulthood on
April 1, 2014;

•

Scanlon’s (original) complaint was filed in the New Jersey
Superior Court on March 29, 2016;

•

Scanlon’s complaint was filed when he was of the age 19 years
and 363 days;

•

Scanlon’s complaint did not name Wesley Jordan as a defendant;

•

On or about October 5, 2016, defendants Balicki, Surrency and
Baruzza provided Rule 26 initial disclosures;

•

The October 5, 2016 Disclosures identified

18

;
•

On January 12, 2017, Plaintiff receiv

•

Plaintiff did not move to amend his complaint until July 21,
2017, which was 289 days following the date of the
Disclosures; and 190 days following the date that Plaintiff
received discovery bate stamped Balicki 00001-00776.

(Reply Brief, ECF No. 141 at 2-4.)
In particular, Jordan argues that Plaintiff’s efforts to
obtain his identity ceased no later than June 22, 2012,

(Id. at 4.) Jordan asserts that Plaintiff and/or his
agents could have:
•

Formally or informally interviewed any persons employed by or
incarcerated at the CCJDC in an effort to obtain his identity;

•

Filed requests under the Open Public Records Act (“OPRA”) in
order to get reports and/or other documents that might
identify the subject;

•

Filed an OPRA request to obtain a roster of employees at the
CCJDC;

•

Retained an investigator to track down and identify the
subject JDO;

•

Searched the free, online public records databases that lists
public employees;

19

•

Had Plaintiff talk to his fellow detainees as to the name of
the person involved;

•

Filed suit in order to obtain subpoena power and the ability
to take depositions;

•

Filed a petition under F.R.C.P. 27 and/or N.J. Ct. Rule 4:111 in order to obtain and preserve documents that would be
pertinent in this litigation;

•

Formally written to the CCJDC administration and demanded the
name of the subject JDO;

•

Formally written
complete version

an unredacted and
.

(Reply Brief, ECF No. 141 at 4-5.)
Jordan further argues that Plaintiff should have amended the
complaint upon receiving the Disclosures by Balicki, Surrency and
Baruzza on or about October 5, 2016 or upon receiving the documents
that were bate stamped Balicki 00001-00776, which unequivocally
showed that Wesley Jordan was the “John Doe”
.
C.

Analysis

Plaintiff’s federal claims are brought under 42 U.S.C. § 1983.
Section 1983 does not create substantive rights but provides a
remedy for violation of federal rights. Dique v. New Jersey State
Police,

603

F.3d

181,

185

(3d

Cir.

2010).

Such

claims

are

characterized as personal injury claims, and state law provides
the statute of limitations. Id. (citing Cito v. Bridgewater Twp.
Police Dep't, 892 F.2d 23, 25 (3d Cir. 1989)). Under New Jersey

20

law, personal injury torts are subject to a two-year statute of
limitations. Id. (citing N.J.S.A. § 2A:14-2). 8 Claims under the
New Jersey Civil Rights Act are also subject to a two-year statute
of limitations. Lapolla v. County of Union, 157 A.3d 458, 465 (N.J.
Super. Ct. App. Div. 2017) (citing N.J.S.A. § 2A:14-2(a)).
“[T]he accrual date of a § 1983 cause of action is a question
of federal law that is not resolved by reference to state law.”
Wallace v. Kato, 549 U.S. 384, 388 (2007). A claim accrues “when
the plaintiff knew or should have known of the injury upon which
its action is based.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir.
2009) (quoting Sameric Corp. v. City of Philadelphia, 142 F.3d
582, 599 (3d Cir. 1998) (citation omitted)).
“The general rule is that state tolling principles also govern
§ 1983 claims.” Id. at 639 (citing Hardin v. Straub, 490 U.S. 536,
539, (1989)); Island Insteel Sys. v. Waters, 296 F.3d 200, 210 n.
4 (3d Cir. 2002)). In New Jersey, the statute of limitations for
personal injury claims is tolled until a minor reaches the age of
majority, age eighteen. See N.J.S.A. § 2A:14-21; N.J.S.A. § 9:17B1(a); Standard v. Vas, 652 A.2d 746, 749 (N.J. Super. Ct. App.

8

N.J.S.A. § 2A:14-2, provides, in pertinent part:
Every action at law for an injury to the person
caused by the wrongful act, neglect or default
of any person within this State shall be
commenced within two years next after the
cause of any such action shall have accrued…
21

Div.

1995)

(confirming

that

the

tolling

period

ends

upon

a

claimant’s eighteenth birthday).
There is no dispute that Plaintiff was born on April 1, 1996.
Thus, he was a minor at the time
Under
New Jersey law, the statute of limitations was tolled until he
turned eighteen on April 1, 2014. Therefore, any action against
Wesley Jordan had to be filed by April 1, 2016. The amended
complaint, substituting Wesley Jordan for “John Doe,” was not filed
until October 26, 2017.
1.

Relation back under FRCP 15(c)(1)(A)

“Rule 15(c) of the Federal Rules of Civil Procedure governs
when an amended pleading ‘relates back’ to the date of a timely
filed original pleading and is thus itself timely even though it
was filed outside an applicable statute of limitations.” Krupski
v. Costa Crociere S. p. A., 560 U.S. 538, 541 (2010). Plaintiff
contends his claims against Jordan should relate back to the
original complaint, filed on March 29, 2016. An amendment can
relate back to the date of the original pleading when the law that
provides the applicable statute of limitations allows relation
back, and the amendment asserts a claim or defense that arose out
of the conduct, transaction, or occurrence set out in the original
pleading. Fed. Rule Civ. P. 15(c)(1)(A),(B). New Jersey Court Rule
4:26-4 applies to actions in which fictitious parties are named
22

when the defendant’s true name is unknown to the plaintiff. 9 It
provides:
if the defendant's true name is unknown to the
plaintiff, process may issue against the
defendant under a fictitious name, stating it
to be fictitious and adding an appropriate
description sufficient for identification.
Plaintiff shall on motion, prior to judgment,
amend the complaint to state defendant's true
name, such motion to be accompanied by an
affidavit stating the manner in which that
information was obtained.
If, however, defendant acknowledges his or her
true name by written appearance or orally in
open court, the complaint may be amended
without notice and affidavit. No final
judgment shall be entered against a person
designated by a fictitious name.
N.J. Ct. R. 4:26-4.
To take advantage of the fictitious party rule, a plaintiff
must exercise due diligence to discover the defendant’s true name
before and after filing the complaint. DeRienzo v. Harvard Indus.,
Inc., 357 F.3d 348, 353 (3d Cir. 2004) (citing Farrell v. Votator
Div. of Chemetron Corp., 62 N.J. 111, 299 A.2d 394, 396 (1973);
Claypotch v. Heller, Inc., 360 N.J.Super. 472, 823 A.2d 844, 848–
49 (2003)). The rule is unavailable if a plaintiff should have
known, by exercise of due diligence, the defendant's identity prior

9

New Jersey Rule 4:9-3, allowing relation back of amendments, is
not applicable where a plaintiff filed suit against fictitious
parties “presupposing a need for later amendment, rather than
mistakenly identifying incorrect defendants.” McGill v. John Does
A-Z, 541 F. App’x 225, 227-28 (3d Cir. 2013).
23

to the expiration of the statute of limitations. DiRienzo, 357
F.3d at 353 (citing Mears v. Sandoz Pharms., Inc., 693 A.2d 558,
561–63 (N.J. Super. Ct. App. Div. 1997)).
The meaning of due diligence varies with the facts of each
case. Id. at 354 (quoting O'Keeffe v. Snyder, 416 A.2d 862, 873
(N.J. 1980)). However, at a minimum, “plaintiffs must ‘investigate
all potentially responsible parties in a timely manner’ in order
to satisfy the diligence requirement.” Id. (quoting Matynska v.
Fried, 811 A.2d 456, 457 (N.J. 2002)). In addition, application of
the rule must not prejudice the defendant. Id. at 353-54 (citing
Farrell, 299 A.2d at 400; Mears, 693 A.2d at 563–64.))
As laid out above, the following facts are not in dispute.
Plaintiff’s counsel was retained sometime before September 18,
2012, when he filed a notice of Plaintiff’s claims pursuant to the
New

Jersey

Tort

Claim

Act;

and

Plaintiff’s

Plaintiff’s counsel when he received

father

contacted
,

and he sent counsel the report. Jordan’s SOMF, ¶29, ECF No. 1172; Ex. N, ECF No. 117-18; Ex. A, ECF No. 130-8 at 3.) At that time,
Plaintiff’s counsel was certainly on notice that he would have to
learn the name of the officer whose name was withheld in the
Report. Inexplicably, Plaintiff’s counsel did nothing to discover
the unknown officer’s identity for nearly four years, when he filed
a complaint against “John Doe” on March 29, 2016, with only days
remaining on the statute of limitations. The “John Doe” designation
24

was a general one; it did not identify the John Doe

As Jordan correctly points out, records identifying Wesley
Jordan were potentially available through a request under the New
Jersey Open Public Records Act, N.J.S.A. § 47:1A-5. See Monaco v.
City of Camden, 366 F. App’x 330, 334 (3d Cir. 2010) (finding the
plaintiff was not diligent before expiration of the statute of
limitations when he failed to take any additional actions after
first request to identify the defendant failed.) After

Moreover, counsel could also have formally or informally
interviewed CCJDC staff, former staff or CCJDC residents in an
attempt to learn the identify of the unknown officer. Given that

he could also
have questioned Plaintiff whether Jordan was the unknown officer.
If Plaintiff still could not remember, Plaintiff’s counsel could
have asked Plaintiff the names of the other juveniles
and sought the identity of the officer from
them.

25

Most importantly, if counsel had filed the complaint sooner,
he could have used formal discovery methods to obtain John Doe’s
identity. Waiting until the statute of limitations was within two
days of expiring to file the complaint without knowing the identity
of the officer was very risky. Efforts to identify the defendant
after filing the complaint do not make up for lack of diligence in
the years prior to filing. McGill v. John Does A-Z, 541 F. App’x
225, 228 (3d Cir. 2013). To be clear, the Court is not suggesting
that any of the foregoing measures would have born fruit. But that
is no excuse for not trying. It is not the results but the efforts
that matter here.
Moreover,

upon

filing

the

complaint,

Plaintiff’s

counsel

should have immediately taken steps to learn “John Doe’s” identity.
After the complaint was filed in March and removed to this Court
in July 2016, Plaintiff’s counsel asked to reschedule the initial
status conference for September 22, 2016. (Letter, ECF No. 11.) On
September 28, 2016, approximately six months after the complaint
was filed, Plaintiff’s counsel sought a court order for release of
records
(Order, ECF Nos. 18, 19.)
,
received

initial

disclosures

in

October

Plaintiff’s

2016

that

counsel

identified

Jordan by name. (Ex. C, ECF No. 117-7 at 3.) Plaintiff’s counsel
explains “even after having receiving these initial disclosures,
26

I

still

did

not

have

the

discovery

or

detailed

regarding

information

to make my own

independent evaluation as to who else was involved, and their level
involvement.” (Cert. of Counsel, ECF No. 130-7, ¶9.) It is hard to
understand what more counsel needed: the Disclosures identified
.

By

this

point

in

time,

the

statute

of

limitations had expired six months earlier. Still, counsel did not
seek leave to file an amended complaint.
On January 12, 2017, Plaintiff’s counsel received discovery
that further identified

(Cert. of Counsel, ECF No.
130-7, ¶¶11-13.) Plaintiff’s counsel recalls discussing, in a
status conference with Magistrate Judge Schneider on January 23,
2017, amending the complaint to add new parties (Id., ¶14.) During
this conference, Plaintiff’s counsel informed the Court that he
would be able to amend the complaint based upon what he reviewed
in discovery stamped Balicki000001-Balicki000776. However, he was
not sure if he would need to amend the complaint again after
getting

. (Id., ¶15.) Thus, amending the complaint

was put on hold so Plaintiff’s counsel would not have to go through
the process of amending the complaint twice if any other parties
could be added based on the DCF documents. (Id., ¶16.) This was a

27

poorly

calculated

risk

by

Plaintiff’s

counsel,

given

the

expiration of the statute of limitations.
Plaintiff received

in May 2017. (Order, ECF

Nos. 35, 37.) There was a status conference on June 15, 2017, where
the

issue

of

the

deadline

for

Plaintiff

to

file

an

amended

complaint was addressed. (ECF No. 38.) The next day, an Amended
Scheduling Order was entered, which provided “By July 17, 2017,
plaintiff shall file his motion to amend his pleadings without
prejudice to defendants’ right to assert timeliness defenses.”
Plaintiff’s counsel was on notice that Defendants preserved their
statute of limitations defense. Even then, Plaintiff’s counsel
sought and received a short extension to file a motion to amend.
(Order, ECF No. 40.)
The due diligence requirement of New Jersey Court Rule 4:264 required Plaintiff to investigate all potential responsible
parties in a timely manner. DeRienzo 357 F.3d at 353. Plaintiff’s
counsel did not do so. See Padilla v. Township of Cherry Hill, 110
F. App’x 272, 277 (3d Cir. 2004) (waiting more than 14 months to
amend complaint after defendants’ names were made known to the
plaintiff through initial disclosures demonstrates a lack of due
diligence); cf. Worthy v. Kennedy Health System, 140 A.3d 584, 594
(N.J. Super Ct. App. Div. 2016) (finding the plaintiff exercised
due diligence by moving to amend her complaint within days of
learning the defendant’s identity.) As set forth above, counsel
28

not only failed to act in a timely manner, he, in essence, failed
to act at all once Plaintiff’s father gave him
Doing

nothing

does

not

equate

to

due

diligence. It is unfortunate, indeed. For the foregoing reasons,
the Court is constrained to find that Plaintiff cannot avail
himself of Rule 15(c)(1)(A) for the amendment to relate back to
the original complaint.
2.

Relation back under FRCP 15(c)(1)(C)

An amendment can also relate back to the date of the original
pleading under Rule 15 when
(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
action
that
it
will
not
prejudiced in defending on
merits; and

the
be
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.
Fed. R. Civ. P. 15(c)(1)(C). At the time the original pleading was
filed, Rule 4(m) provided 120 days to serve the summons and
complaint. (Fed. R. Civ. P. 4, effective December 1, 2015).
“Rule 15(c)(1)(C)(ii) asks what the prospective defendant
knew or should have known during the Rule 4(m) period, not what
29

the plaintiff knew or should have known at the time of filing her
original complaint.” Krupski, 560 U.S. at 548. “The only question
under Rule 15(c)(1)(C)(ii) … is whether [the added party] knew or
should have known that, absent some mistake, the action would have
been

brought

against

him.”

Krupski,

560

U.S.

at

549.

“The

reasonableness of the mistake is not itself at issue.” Id.
A prospective defendant who legitimately
believed that the limitations period had
passed without any attempt to sue him has a
strong interest in repose. But repose would be
a windfall for a prospective defendant who
understood, or who should have understood,
that he escaped suit during the limitations
period
only
because
the
plaintiff
misunderstood a crucial fact about his
identity.
...
When
the
original
complaint
and
the
plaintiff's conduct compel the conclusion that
the failure to name the prospective defendant
in the original complaint was the result of a
fully informed decision as opposed to a
mistake concerning the proper defendant's
identity,
the
requirements
of
Rule
15(c)(1)(C)(ii) are not met.
Krupski, 560 U.S. at 550-52.

Pursuant

to

the

Third

Circuit’s

decision in Varlack v. SWC Caribbean, Inc., 10 “the plaintiff's lack
of knowledge of a particular defendant's identity can be a mistake
under

Rule

15(c)(3)(B).”

Singletary

v.

Pennsylvania

Corr., 266 F.3d 186, 201 (3d Cir. 2001).

10

Varlack, 550 F.2d 171, 174 (3d Cir. 977).
30

Dep't

of

Notice to the newly named defendant may be imputed by sharing
an attorney with an original defendant or by an identity of
interest with an originally named defendant. Singletary, 266 F.3d
at 196-97. “[T]he relevant issue is whether [the newly named
defendant] has a sufficient identity of interest with an originally
named defendant to impute the notice that defendant received to
[the

newly

named

defendant].”

Id.

at

198.

Absent

other

circumstances permitting an inference that notice was actually
received, a non-management employee does not share a sufficient
identity of interest with his employer so that notice to the
employer can be imputed to the employee for Rule 15(c)(3) purposes.
Singletary, 266 F.3d at 200.
Jordan did not share an attorney with any original defendant
at any time. Moreover, Plaintiff has not submitted any evidence
that Jordan was notified of the lawsuit before the statute of
limitations expired.
At the time the original complaint was filed, Jordan was no
longer employed by any of the original supervisory defendants and
Jordan had moved out of New Jersey. (Jordan’s SOMF ¶47; Ex. O, ECF
No. 117-9.) Notice of the lawsuit to Jordan’s former supervisors
cannot be imputed to Jordan under Rule 15(c)(3). See Garvin v.
City of Philadelphia, 354 F.3d 215, 227 (3d Cir. 2003) (individual
police officers were non-managerial employees with insufficient
nexus

of

interests

to

impute

notice
31

under

Fed.

R.

Civ.

P.

15(c)(3)(A)).

Therefore,

the

amendment

adding

Jordan

as

a

defendant to the complaint does not relate back to the original
complaint.
IV. CONCLUSION
For the reasons discussed above, Defendant Wesley Jordan’s
motion for summary judgment is granted and the claims against him
are dismissed with prejudice.

An appropriate order follows.

Date: February 6, 2020
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

32