MCCLUNEY et al v. CITY OF NEWARK, et al

Filing 17

OPINION/ORDER denying 14 Motion for Leave to File Amended Answer; that Defendant shall not file any further applications to amend without first requesting leave in accordance with the applicable scheduling order.. Signed by Magistrate Judge Steven C. Mannion on 6/5/13. (DD, )

STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION

KELLY MCCLUNEY, et al.,

Civil Action No.

Plaintiff,

2:13-CV-1894-ES-SCM

v.
OPINION AND ORDER ON
DEFENDANT’S MOTION TO AMEND
ITS ANSWER

CITY OF NEWARK, et al.,
Defendant.

[D.E. 14]

I.

INTRODUCTION
This matter comes before the Court by way of motion by

defendant National Railroad Passenger Corporation (hereafter
“Defendant” or “Amtrak”) to amend its the answer. (See Docket
Entries (“D.E.”) 14).

For the reasons set forth below,

Defendant’s motion for leave to amend is DENIED.
II.

BACKGROUND

Plaintiff Kelly McCluney alleges that she was injured on
January 8, 2011, when she fell into a hole on City Dock Street
in Newark, New Jersey. (D.E. 1, Complaint, First Count at ¶ 2).1
Defendants include the City of Newark, Consolidated Rail

1

At this point in the proceedings we assume the truth of
Plaintiff’s allegations.
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Corporation (“Conrail”), Amtrak, New Jersey Transit Corporation
(“NJ Transit”), the State of New Jersey, Matrix/Newark City
Dock, LLC, and the Public Service Electric and Gas Company
(“PSE&G”). (Id.)

Plaintiff claims that her injuries were caused

by defendants’ negligent failure to maintain the property. (Id.,
Complaint, Second Count at ¶¶ 2-4).
The City of Newark, the State of New Jersey, New Jersey
Transit, PSE&G, and Conrail have each filed cross-claims against
each other defendant.

See (D.E. 4, 10, 11, and 13).

Amtrak has

filed cross-claims against all but two of its co-defendants.
See (D.E. 3).

On May 6, 2013, Amtrak moved for leave to amend

its pleading to assert cross-claims against Conrail and New
Jersey Transit, and to add additional cross-claims for
contractual indemnification against the other co-defendants.
(D.E. 14-3).
III. DISCUSSION
New Jersey Local Civil Rule 7.1 states as follows:

(f) Motions Regarding Additional Pleadings
Upon filing a motion for leave to file an
amended complaint or answer, a complaint in
intervention or other pleading requiring
leave of Court, the moving party shall
attach to the motion a copy of the proposed
pleading or amendments and retain the
original until the Court has ruled. If
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leave to file is granted, the moving party
shall file the original forthwith.
L. Civ. R. 7.1(f).

“The purpose of Local Rule 7.1(f) is to give

the Court and the parties a chance to evaluate the sufficiency
of the proposed pleading.” Folkman v. Roster Financial, 2005
U.S. Dist. LEXIS 18117 (D.N.J. 2005); see also U.F.C.W. Local 56
v. J.D.’s Market, 240 F.R.D. 149, 150 (D.N.J. 2007) (stating
that one of the “cardinal rules” for a party seeking leave to
amend a pleading is that a copy of the proposed amended pleading
be attached to the motion).

Failure to include a proposed

pleading is a basis for dismissal of a party’s motion to amend
its pleading.

See, e.g., Tucker v. Wynne, 2009 U.S. Dist. LEXIS

69546 (D.N.J. 2009); Warren v. Gelardi, 2009 U.S. Dist. LEXIS
2333 (D.N.J. 2009); Parker v. Howmedica Osteonics Corp., 2008
U.S. Dist. LEXIS 2570 (D.N.J. 2008); Trans World Techs. V.
Raytheon Co., 2007 U.S. Dist. LEXIS 82118 (D.N.J. 2007).
Here, Defendant has not submitted a copy of a proposed
amended answer with its motion to amend.

Defendant’s failure to

provide a copy of its proposed pleading, in and of itself,
supports denying its request to amend. See Lake v. Arnold, 232
F.3d 360, 374 (3d Cir. 2000) (holding that even where the
district court failed to provide a reason for its denial of
plaintiffs’ motion to amend the complaint, the court had not
abused its power in denying the motion because plaintiffs’
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“failure to provide a draft amended complaint would be an
adequate basis on which the court could deny the [plaintiffs’]
request”).

Without a proposed pleading the parties and the

Court cannot evaluate whether the pleading would be futile or
suffer any other deficiency.

Accordingly, Defendant’s request

to amend is hereby denied.
IV.

CONCLUSION

This matter having come before the Court on the motion of
Defendant Amtrak to amend its answer; and the Court having
considered same; and for good cause shown,
IT IS ON THIS 5th day of June, 2013:
ORDERED that Defendant’s motion to amend its answer is
hereby DENIED; and it is further
ORDERED that Defendant shall not file any further
applications to amend without first requesting leave in
accordance with the applicable scheduling order.

6/5/2013 11:11:51 AM

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