CHESLER et al v. CITY OF JERSEY CITY et al
Filing
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Opinion and Order Granting 58 Motion to Amend/Correct the Complaint. Signed by Magistrate Judge Edward S. Kiel on 11/26/2019. (as, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KELLY CHESLER, et al.,
Plaintiffs,
Civil Action No. 2:15-cv-1825-SDW-ESK
v.
OPINION AND ORDER
CITY OF JERSEY CITY, et al.,
Defendants.
EDWARD S. KIEL, Magistrate Judge
This matter comes before the Court on the motion by plaintiffs Joseph Ascolese and
Kelly Chesler (“Plaintiffs”), for leave to amend and supplement the Complaint pursuant to
Federal Rule of Civil Procedure (the “Rules” or “Rule”) 15(a) and (d) (the “Motion”). (ECF No.
58.) Defendant City of Jersey City (“Jersey City”) opposes the Motion, with defendants John
Peters, Terrence Crowley, James Shea, Philip Zacche, and Joseph Connors joining in Jersey
City’s opposition (collectively, “Defendants”). This Court has considered Plaintiffs’ submission
and the oppositions thereto, and decides this matter pursuant to Rule 78. For the reasons that
follow, Plaintiffs’ Motion is hereby GRANTED.
BACKGROUND AND PROCEDURAL HISTORY
A.
The Initial Complaint and Administrative Dismissal
The Complaint in this matter was filed on March 11, 2015. (ECF No. 1 (“Compl.”).)
Plaintiff Kelly Chesler (“Chesler”), a Jersey City Police Officer, alleged that she had been
sexually harassed by other Jersey City Police Officers and had been retaliated against by her
employer, Jersey City, when she reported the offending conduct. (See Compl. ⁋ 1.) Plaintiff
Joseph Ascolese (“Ascolese”), who served as captain in the Jersey City Police Department,
reported Chesler’s sexual harassment complaints up “his chain of command” and alleges that he
was retaliated against as a result. (Id. at ⁋⁋ 64–74.) Plaintiffs bring this suit against Jersey City
and several Jersey City Police Officers in their official and individual capacities. Defendants
filed Answers to the Complaint in April 2015. (ECF Nos. 4, 5.)1
The Court entered an Initial Scheduling Order on June 22, 2015 (ECF No. 9), which was
amended twice extending fact discovery to September 30, 2016. (ECF Nos. 22, 31.) On June
14, 2016, the Hudson County Grand Jury returned an Indictment (the “Indictment”) charging
Plaintiffs2 with various crimes involving an alleged scheme to permit, allow, or approve
improper payments in connection with an off-duty detail related to the anticipated traffic issues
resulting from the temporary closure of the Pulaski Skyway. (Lytle Declaration (“Lytle Decl.”),
ECF No. 58-2, ⁋ 8.)3 On June 27, 2016, the Court administratively terminated this action during
the pendency of the criminal proceedings “without prejudice to any party’s right to request that
the Court reopen the action at the appropriate time.” (ECF No. 37.)
B.
This Action Was Reopened After Dismissal Of The
Criminal Proceedings
Jury selection for the criminal trial began on August 15, 2018. (ECF No. 39 at 1.) The
trial began on September 5, 2018. (Lytle Decl., ECF No. 58-2, ⁋ 11.) On October 23, 2018, the
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Defendants John Peters and Terrence Crowley filed cross-claims for indemnification
and contribution against their co-defendants. (ECF No. 5.)
Officers Michael Maietti and Michael O’Neal, of the Jersey City Police Department,
were also charged in the Indictment. (Lytle Decl., ECF No. 58.2, ⁋8.)
2
Ascolese’s Motion papers refer to the “Certification of Robert Lytle.” The Court notes
that the “Certification” contains an invalid jurat. See 28 U.S.C. § 1746; United States ex. rel.
Doe v. Heart Sol., PC, 923 F.3d 308, 315–16 (3d Cir. 2019).
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Hudson County Prosecutor’s Office dismissed all charges in the Indictment against Plaintiffs
prior to the end of the State’s case. (ECF No. 39 at 1.)4
On February 19, 2019, Chesler asked the Court to reopen this matter. (ECF No. 39.)
This action was reopened on February 22, 2019. (ECF No. 41.) On March 8, 2019, the parties
submitted a proposed schedule for further proceedings in response to the Court’s request. (ECF
No. 48.) The proposed schedule outlined a briefing schedule relating to a proposed amended
complaint. (Id.) The Court directed Plaintiffs to provide a red-lined version of the proposed
amended complaint (“Amended Complaint” or “Amend. Compl.”) to inform Defendants of the
proposed changes. (ECF No. 50.) After being advised that some Defendants objected to the
proposed Amended Complaint, the Court directed Plaintiffs to move for leave to file an amended
complaint by May 10, 2019. (ECF No. 56.)
Plaintiffs timely filed the pending Motion. (ECF No. 58.)
C.
The Proposed Amended Complaint
According to Plaintiffs, the proposed Amended Complaint seeks to “amend and
supplement” the Complaint by: (1) updating and adding “certain facts” that were discovered
during the criminal proceedings and over the time this action has been administratively
terminated; (2) adding facts relating directly to the criminal investigation that resulted in the
Indictment; (3) adding Robert Sjosward (“Sjosward”) as a defendant; and (4) adding Jennifer
Ascolese as an additional Plaintiff, with a per quod claim against all Defendants. (ECF No. 58-1
at 2–3.)
Defendants’ opposition to the Motion does not dispute these facts or the chronology.
(ECF. No. 63.)
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Defendants do not oppose the Motion insofar as Plaintiffs seek to add additional facts to
the Amended Complaint. Defendants, however, oppose the Motion to the extent Plaintiffs seek
to add Sjosward as a defendant and Jennifer Ascolese as a Plaintiff on the basis that the claims
for and/or against same would be “futile.” Defendants further argue that the Motion should be
denied in the interest of judicial economy. (Defendants’ Brief (“Defs. Br.”) at 20-22.)
Defendants’ objections to the proposed amendments can be classified into three
categories. First, Defendants argue that Plaintiffs’ proposed amendments to the Complaint
adding claims against Sjosward for a violation of the New Jersey Conscientious Employee
Protection Act (“CEPA”) and for a violation of the New Jersey Law Against Discrimination
(“LAD”) for retaliation are futile because Plaintiffs fail to allege that they were retaliated against
by Sjosword. (N.J.S.A. 34:19-1 et seq.; Defs. Br. at 4.) Second, Defendants argue that
Plaintiffs’ New Jersey Civil Rights Act claim and Conspiracy claim are futile because they are
improper and impermissible “group pleadings” and fail to allege any factual allegations against
Sjosward. (Defs. Br. at 15.) Third, Defendants argue that Plaintiffs’ per quod claim is futile and
must fail because Sjosward “did not commit any wrongdoing” and Plaintiffs fail to allege any
facts to the contrary. (Id. at 19.)
D.
Standard On Motions To Amend And Supplement
Pleadings
Plaintiffs move to amend and supplement their pleadings under Rules 15(a) and 15(d).
Where, as here, responsive pleadings in an action have been filed, and 21 days have elapsed, a
plaintiff may seek to amend the complaint only by leave of court. See Fed.R.Civ.P. 15(a)(1)(B).
However, Rule 15(a) provides that leave to amend “shall be freely given when justice so
requires.” Id.; see also Foman v. Davis, 371 U.S. 178, 182 (1962). A motion to amend should be
denied when an “amendment would cause undue delay or prejudice, or that amendment would be
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futile.” Winer Family Tr. v. Queen, 503 F.3d 319, 330–31 (3d Cir. 2007) (citation omitted). An
amendment is futile when it advances a claim that “would fail to state a claim upon which relief
could be granted.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
Rule 15(d) governs: (1) supplemental pleadings; and (2) when a party may seek leave to
serve a supplemental pleading setting forth transactions, occurrences, or events, that have
happened since the date of the pleading sought to be supplemented. Leave to supplement a
complaint pursuant to Rule 15(d) should also be freely permitted in the absence of undue delay,
bad faith, undue prejudice to the defendants, or futility, and when supplemental facts are
connected to the original pleading. Hassoun v. Cimmino, 126 F.Supp.2d 353, 361 (D.N.J.
2000).5 In addition, the decision to permit a supplemental pleading is within this Court’s
discretion.
For the reasons that follow, the Court rejects Defendants’ futility arguments. The Court
further finds there to be no undue delay or prejudice to warrant denial of the Motion to amend
under Rule 15(a) or Rule 15(d).
E.
Plaintiffs’ Proposed Amendments Meet the Low
Standard Under Rule 15(a) and Rule 15(d)
Defendants argue that this Court should deny Plaintiffs’ Motion because Plaintiffs’
amendments are futile. Defendants, however, lack standing to argue the merits of Plaintiffs’
proposed amendments as to the claims against Sjosward, and therefore, may not contest whether
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The parties in their submissions advance the same legal analyses for Rule 15(a) and
Rule 15(d). Seeing as the analysis for Rule 15(a) and Rule 15(d) are nearly identical, this Court
will also analyze the application of both Rules in tandem. The Court notes, however, that the
additional considerations under Rule 15(d), namely, preserving judicial economy, avoiding
multiplicity of litigation, and the Court’s interest in promoting as complete an adjudication of the
dispute between the parties as possible have been considered as part of this decision and weigh in
favor of granting Plaintiffs’ motion. Hassoun, 126 F.Supp.2d at 361.
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Plaintiffs’ proposed claims are futile. Defendants do however have standing to contest the
proposed amendments to the Complaint adding proposed Plaintiff, Jennifer Ascolese’s per quod
claim, which applies to all Defendants. The proposed amendments are analyzed in turn below.
1.
Defendants do not have standing to argue futility
as to the claims against Sjosward
The proposed claims against Sjosward do not impact the currently named Defendants.
There is no “authority that would ... authorize present parties who are unaffected by the proposed
amendment to assert claims of futility on behalf of the proposed new defendant.” Clark v.
Hamilton Mortg. Co., No. 07-252, 2008 WL 919612, at *2 (W.D. Mich. Apr. 2, 2008).
Defendants cite to Custom Pak Brokerage, LLC v. Dandrea Produce, Inc., for the proposition
that a party affected by a proposed amendment to a complaint may have standing to contest a
proposed amendment on futility grounds—even when the proposed amendment does not assert
allegations against the party directly. (Defendants’ Reply Brief (“Defs. Reply Br.”) at 2; No. 135592, 2014 WL 988829, at *2 (D.N.J. Feb. 27, 2014).) Custom Pak Brokerage, LLC v. Dandrea
Produce, Inc., however, does not stand for the proposition Defendants wish to advance, and this
Court is unwilling to broaden the Custom Pak Brokerage, LLC holding in such a way.
In Custom Pak Brokerage, LLC, plaintiff moved for leave to file an amended complaint.
Id. at *1. Defendants opposed the motion on futility grounds to the extent that plaintiff sought to
add a new defendant. The Custom Pak Brokerage, LLC Court held that current parties only
possess standing to challenge an amended pleading directed to proposed new parties on the basis
of “undue delay and/or prejudice.” Id. The Court did not create a distinction between existing
parties who are affected by the amendment and those unaffected by the amendment. Id. If this
Court were to accept Defendants’ interpretation of the holding in Custom Pak Brokerage, LLC,
any party could conceivably argue that they are “affected” in some way by a proposed
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amendment to a complaint and assert a futility argument. Id. That is undoubtedly not the result
the Court in Custom Pak Brokerage, LLC sought to accomplish.
Both Sjosward and Defendants may challenge the sufficiency of the pleading by way of a
dispositive motion once Sjosward has been named as a party, if appropriate. Raab Family P’ship
v. Borough of Magnolia, No. 08-5050, 2009 WL 10689669, at *4 (D.N.J. Oct. 30, 2009). This
Court recognizes that the proposed amendments are underwhelming and curiously pleaded;
nevertheless, Defendants do not have standing to challenge the merits of the proposed
amendments as to Sjosword on futility grounds at this time. Because Defendants’ futility
arguments as to Sjosward do not address claims against Defendants, the Court rejects
Defendants’ futility argument as a basis to deny the Motion.
2.
Defendants are not prejudiced by the proposed
amendments against Sjosword and there has
been no undue delay to Defendants
Defendants may not raise a futility argument as to proposed claims against new parties.
Defendants only possess standing to oppose a motion to amend to add new parties on the
grounds that they themselves will be unduly delayed or prejudiced by such an amendment. Id.;
see also, e.g., Nat’l Indep. Theatre Exhibitors, Inc. v. Charter Fin. Grp., Inc., 747 F.2d 1396,
1404 (11th Cir. 1984) (affirming the district court’s denial of plaintiff’s motion to amend to add
fourteen new parties as Defendants, in light of the fact that the current defendants would have
been prejudiced by the delay and expense associated with the “largely repetitious discovery” to
be conducted by new defendants), reh’g denied, 755 F.2d 176 (11th Cir. 1985), cert. denied, 471
U.S. 1056 (1985); Serrano Medina v. United States, 709 F.2d 104, 106 (1st Cir. 1983) (affirming
the district court’s denial of plaintiff’s motion to amend to add new parties because the
“eleventh-hour amendment would result in undue prejudice to the defendants” and “would
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require additional research and discovery”). In the present case, there has been no delay or
undue prejudice to Defendants.
The Complaint in this matter was filed in 2015, and in light of the pending, related
criminal matter, the case was administratively terminated without prejudice in 2016. (ECF Nos.
9, 52-2.) The trial in the criminal matter began in August 2018 and concluded in October 2018.
(ECF No. 39.) This matter was reopened in February 2019 and Plaintiffs sought leave to amend
the Complaint in May 2019—a timeframe that is by no means unreasonable. In addition, this is
Plaintiffs’ first time seeking to amend the Complaint. All claims as to Sjosward are based on
new information learned as a result of the criminal case. The Court also notes that the Parties
have already agreed to extend fact discovery until December 2019. (ECF No. 48.) All those
considerations in mind, the Court finds that there has been no undue delay or prejudice. The
Court further finds that judicial economy would in no way be preserved by denying the proposed
amendments.
3.
Defendants Have Standing To Challenge
Proposed Plaintiff’s Per Quod Claim On Futility
Grounds
Defendants argue that proposed Plaintiff, Jennifer Ascolese’s proposed per quod claim
should be dismissed as futile for failure to state a claim. (Defs. Br. at 18.) Specifically,
Defendants argue that Plaintiffs’ proposed Amended Complaint is devoid of any facts in support
of Jennifer Ascolese’s per quod claim. (Id. at 18-19.) The proposed per quod claim (Count 8 in
the Amend. Compl.) applies to all Defendants. As a result, Defendants do in fact have standing
to challenge the per quod claim on futility grounds because they are directly implicated by the
amendment. Nevertheless, this Court finds that Plaintiffs have met their low burden under Rule
15(d) as to the proposed per quod claim.
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A loss of consortium claim arises from a marital relationship and is based on the loss of a
spouse’s services and companionship resulting from another’s conduct. Acevedo v. Monsignor
Donovan High Sch., 420 F.Supp.2d 337, 347 (D.N.J. 2006). The per quod claim is derivative of
the injured spouse’s cause of action but has distinct damages from the injured party’s damages.
Panarello v. City of Vineland, 160 F.Supp.3d 734, 769 (D.N.J. 2016), on reconsideration in part,
No. 12-4165, 2016 WL 3638108 (D.N.J. July 7, 2016).
This Court has been asked to decide if the facts as alleged in the Amended Complaint
could conceivably state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007). We find that Plaintiffs’ proposed Amended Complaint does not rise to the
level of “clearly futile” and does allege sufficient facts to state a claim in support of proposed
Plaintiffs’ derivative CEPA and LAD claims. See Ansell Healthcare Prods. LLC v.
GlycoBioSciences Inc., No. 16-9254, 2018 WL 1169130, at *3 (D.N.J. Mar. 6, 2018); see also
Ingris v. Borough of Caldwell, No. 14-855, 2015 WL 3613499, at *3 (D.N.J. June 9, 2015). At
this juncture, Plaintiffs’ per quod claim satisfies the requirements under Rule 15(a) and Rule
15(d). In addition, for the same reasons that this Court concluded that there has been no undue
delay or prejudice to Defendants in relation to the Sjosward amendments, this Court similarly
finds that that there has been no undue delay or prejudice to Defendants in relation to the per
quod claim.
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CONSEQUENTLY, for the reasons set forth above, and for good cause shown:
IT IS on this 26th day of November 2019;
ORDERED that Plaintiffs’ Motion for leave to file an amended complaint (ECF No. 58)
shall be, and is hereby, GRANTED; and it is further
ORDERED that Plaintiffs shall file a clean version of the Amended Complaint in the
form attached to the Motion within twenty (20) days of the date of entry of this Opinion and
Order.
/s/ Edward S. Kiel__________
Edward S. Kiel
United States Magistrate Judge
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