BOROUGH OF EDGEWATER v. WATERSIDE CONSTRUCTION, LLC et al
OPINION/ORDER granting 140 Motion for Leave to File Third Amended Cmp.; that Plaintiffs shall file the proposed Third Amended Complaint within fourteen (14) days of this Order; that all of the Defendants shall file a response to the Third Amended Complaint within fourteen (14) days of the filing of the new Complaint. Signed by Magistrate Judge James B. Clark on 12/16/16. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BOROUGH OF EDGEWATER,
WATERSIDE CONSTRUCTION, LLC, et
Civil Action No. 14-5060 (CCC)
OPINION AND ORDER
CLARK, Magistrate Judge
Currently pending before the Court is Plaintiff Borough of Edgewater’s (“Plaintiff”)
Motion for Leave to File a Third Amended Complaint. [Docket Entry No. 140, 155]. Defendants
Alcoa Domestic LLC, Waterside Construction, LLC, 38 COAH Associates, LLC, Daibes Brothers,
Inc., North River Mews Associates, LLC, and Fred A. Daibes (hereinafter collectively referred to
as “Defendants”) oppose Plaintiff’s motion. [Docket Entry No. 143, 144]. The Court has fully
reviewed and considered all arguments made in support of, and in opposition to this motion. The
Court considers this motion without oral argument pursuant to L. Civ. R. 78.1(b). For the reasons
set forth more fully below, Plaintiff’s Motion for Leave to File a Third Amended Complaint is
By way of background, this action arises out of the alleged unauthorized disposal of
Polychlorinated Biphenyls (“PCB”) on Veteran’s Field (located at 1167 River Road, Edgewater,
New Jersey) in or around 2013. [Docket Entry No. 61]. In short, Plaintiff contends that
Defendants illegally caused PCB-contaminated fill from the former ALCOA Site (located at 66
River Road, Edgewater, New Jersey) to be disposed on Veteran’s Field.
Just ten days after commencing this action, Plaintiff filed its First Amended Complaint on
August 22, 2014, alleging claims under the New Jersey Spill Act and the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) for the alleged
PCB contamination at Veterans Field. [Docket Entry No. 3]. On May 6, 2015, Plaintiff filed a
Second Amended Complaint to reflect the proper names of certain defendants. [Docket Entry No.
60, 61]. On April 7, 2015, the Court entered a Pretrial Scheduling Order which did not itself set a
deadline for the filing of an amended complaint. [Docket Entry No. 52]. Shortly thereafter, the
parties agreed to mediation before the Hon. Dennis M. Cavanaugh, J.S.C. (Ret.) and the Court
stayed this matter until January 6, 2016 pending mediation. [Docket Entry No. 89. 92].
After an unsuccessful mediation, the parties were directed to submit a proposed amended
scheduling order to the Court. [Docket Entry No. 98]. The matter was thereafter transferred to
the undersigned. [Docket Entry No. 101]. On June 2, 2016, the Court entered an Amended Pretrial
Scheduling Order providing Plaintiff until May 20, 2016 to file a motion to amend the Complaint.
[Docket Entry No. 142]. On May 20, 2016, Plaintiff timely filed its Motion for Leave to File a
Third Amended Complaint seeking to add additional claims sounding in negligence, strict liability,
and unjust enrichment. [See Docket Entry No. 140-4].
Defendants oppose Plaintiff’s motion on several bases. First, Defendants argue that the
proposed claims are futile because they are preempted by CERCLA. Second, Defendants contend
that the proposed amendments come twenty-one months after the institution of the action, without
any justification for this delay. Simply put, Defendants argue that Plaintiff could have sought to
add these claims at a much earlier time but chose not to. Third and finally, Defendants argue that
the proposed amendments will cause undue prejudice because the parties would be required to file
a new answer, file new discovery, and revise its litigation strategy. This in turn would duplicate
counsel fees and costs, presenting a substantial burden and hardship to Defendants.
Pursuant to FED. R. CIV. P. 15(a)(2), leave to amend the pleadings is generally granted
freely. See Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.
2000). Nevertheless, the Court may deny a motion to amend where there is “undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, [or] futility of the amendment.” Id. However, where there is an absence of undue
delay, bad faith, prejudice or futility, a motion for leave to amend a pleading should be liberally
granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004).
Delay alone is insufficient to deny a request for leave to amend, see Adams v. Gould Inc.,
739 F.2d 858, 868 (3d. Cir. 1984), but the moving party “must demonstrate that its delay in
seeking to amend is satisfactorily explained.” Harrison Beverage Co. v. Dribeck Importers, Inc.,
133 F.R.D. 463, 468 (D.N.J. 1990) (internal quotations omitted). Courts will deny a request for
leave to amend where delay becomes undue, such as when its accommodation creates an
“unwarranted burden on the court…[and] unfair burden on the opposing party.” Adams v. Gould,
739 F.2d 858 at 868.
Prejudice will be considered “undue” when it rises to such a level that the non-moving
party would be “unfairly disadvantaged or deprived of the opportunity to present facts or
evidence…” Harrison, 113 F.R.D. at 468 (internal quotations omitted). In evaluating the extent
of any alleged prejudice, the court looks to the hardship on the non-moving party if the
amendment were granted. Cureton v. NCAA, 252 F.3d 267, 273 (3d Cir. 2001). “Specifically,
[courts] have considered whether allowing an amendment would result in additional discovery,
cost, and preparation to defend against new facts or theories.” Cureton, 252 F.3d at 273. The
court of appeals has stated that “prejudice to the non-moving party is the touchstone for the
denial of…amendment.” See Cornell & Co. v. Occupational Safety and Health Rev. Comm'n,
573 F.2d 820, 823 (3d Cir. 1978); Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989).
At the outset, Defendants argue that Plaintiff’s proposed claims are futile because they are
preempted by CERCLA. Based on the nature of the futility analysis, Defendants’ arguments in
opposition to the motion to amend would overlap significantly with the arguments made in support
of a motion to dismiss. The Court, in its discretion, will not consider these arguments in connection
with its review of the motion for leave to amend. See In re Aetna UCR Litig., No. 07-3541, 2015
U.S. Dist. LEXIS 84600, at *28 (D.N.J. June 30, 2015). In the interests of judicial economy and
in the absence of undue prejudice, the Court may decline to engage in a detailed futility analysis
where the Court finds that these arguments are better suited for consideration in the context of a
motion to dismiss. See id. at *28-29; Strategic Envtl. Partners, LLC v. Bucco, No. 13-5032, 2014
U.S. Dist. LEXIS 106170, at *2 (D.N.J. Aug. 1, 2014) (preserving futility argument for anticipated
motions to dismiss); Diversified Indus., Inc. v. Vinyl Trends, Inc., No. 13-6194, 2014 U.S. Dist.
LEXIS 61131, at *1 n.1 (D.N.J. May 1, 2014) (finding, “in the interest of judicial economy and in
the absence of prejudice,” that the amended counter-claim should be treated as the operative
pleading for the purposes of a motion to dismiss despite the fact that the Court had not yet granted
leave to amend).
Turning now to Defendants undue delay and prejudice arguments, the Court finds these
points unavailing. As a general matter, delay alone is insufficient to deny a motion for leave to
amend. Here, Plaintiff satisfactorily explains that it did not seek to add the proposed claims earlier
in an effort to obtain necessary discovery and an early amicable resolution. Then, during
mediation—at a time when this action was stayed—Plaintiff considered the damages incurred by
the alleged PCB contamination and determined that the proposed claims were necessary to cover
damages unrelated to remediation. Just two months after the stay was lifted, Plaintiff sought the
consent of all parties to amend the Complaint. Unable to obtain full consent of the parties, Plaintiff
brought this issue to the Court attention in May 2016, filing the instant motion a few months later.
On these facts, the Court does not find Plaintiff’s delay undue.
More importantly, Defendants would face minimal prejudice at this time. Defendants
contend that the proposed amendments are, for the most part, claims pled in the alternative to
CERCLA. If true, these claims would relate to the same facts and circumstance as Plaintiff’s other
claims. As the facts and allegations are similar, if not identical, the Court is unpersuaded that
Defendants would face “undue difficulty in prosecuting [this case]. . . as a result of a change of
tactics or theories on the part of the other party.” See Chisler v. Johnston, No. Civ. A. 09-1282,
2011 WL 3209092, at *3 (W.D. Pa. July 28, 2011) (quoting Deakyne v. Commissioners of Lewes,
416 F.2d 290, 299 (3d Cir.1969)).
Moreover, the parties are currently engaged in written discovery and depositions have not
yet commenced. While Defendants contend that they would need to conduct additional research
and change their defense strategy, this is a time when litigation strategies are constantly being
formed, changed and developed as a result of newly found discovery. And Defendants still have
the opportunity to address these amendments and conduct discovery as they see fit. Furthermore,
this Court does not find that the proposed claims, based on similar facts to the existing claims,
would drive up litigation costs to such an exorbitant degree to be deemed prejudicial. Accordingly,
Plaintiff’s motion for leave to amend the Complaint is GRANTED.
The Court having considered the papers submitted pursuant to Fed. R. Civ. P. 78, and for
the reasons set forth above;
IT IS on this 16th day of December, 2016,
ORDERED that Plaintiffs’ Motion for Leave to File a Third Amended Complaint is
GRANTED; and it is further
ORDERED that Plaintiffs shall file the proposed Third Amended Complaint within
fourteen (14) days of this Order; and it is further
ORDERED that all of the Defendants shall file a response to the Third Amended
Complaint within fourteen (14) days of the filing of the new Complaint; and it is further
ORDERED that the Clerk of the Court terminate the aforementioned motion [Docket
Entry No. 140].
s/James B. Clark, III
HONORABLE JAMES B. CLARK, III
UNITED STATES MAGISTRATE JUDGE
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