LOVE v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 75

LETTER ORDER/OPINION granting 67 Motion for Extension of Time to Answer within twenty days of the date of this Order; that Plaintiff Loves request for leave to file a supplemental Complaint is denied without prejudice. Signed by Magistrate Judge Steven C. Mannion on 2/1/17. (DD, ) N/M

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Chambers of

Martin Luther King Jr, Federal Bldg.
& U.S. Courthouse
50 Walnut Street
Newark, NJ 07102
[phone]

STEVEN C. MANNION
United States Magistrate Judge

February 1, 2017

LETTER ORDER/OPINION
Re:

D.E. 67
Love v. New Jersey Dep’t of Corrections, et al.
Civil Action No. 15cv4404 (SDW)(SCM)

Dear Litigants:
Before this Court is Defendant Patrick Nogan’s (“Officer Nogan”) motion to extend time
to answer, move, or otherwise reply to Plaintiff Lemont Love’s (“Mr. Love”) Amended Complaint
under Federal Rule of Civil Procedure 6(b)(1)(B).1 Mr. Love opposes the motion and alternatively
requests leave to supplement his Amended Complaint.2 For the reasons set forth herein, the Court
grants Officer Nogan’s motion and denies Mr. Love’s request.
PROCEDURAL HISTORY
Plaintiff, Mr. Love, initiated this action against Defendants, New Jersey Department of
Corrections, Northern State Prison, and certain individual officers alleging violations of his civil
rights.3 On October 5, 2015, Mr. Love filed an Amended Complaint alleging retaliation and

1

(ECF Docket Entry No. (“D.E.”) 67).

2

(D.E. 70).

3

(D.E. 1, Ex. A).

condition of confinement claims against additional officers including but not limited to Defendant,
Officer Nogan.4 On November, 28, 2016, the United States Marshal’s Service filed proof of
constructive service upon Officer Nogan.5 On January 4, 2017, counsel at the New Jersey Attorney
General’s Office entered an appearance on his behalf. 6
DISCUSSION & ANALYSIS
I.

Magistrate Judge Authority
Magistrate judges are authorized to decide any non-dispositive motion designated by the

Court.7 This District specifies that magistrate judges may determine all non-dispositive pre-trial
motions.8 This includes scheduling motions9 and motions permitting the filing of an answer out of
time.10 A court’s power to extend time is employed to expedite disposition of the action and
discourage wasteful pretrial activities11 with the goal of securing “the just, speedy, and inexpensive

4

(D.E. 19).

5

(D.E. 58).

6

(D.E. 65).

7

28 U.S.C. § 636(b)(1)(A).

8

L. Civ. R. 72.1(a)(1).

9

Fed. R. Civ. P. 16(a).

10

See AllGood Entm't, Inc. v. Gridiron Video, No. CIV. A. 09-2406 JLL, 2012 WL 395373, at
*4 (D.N.J. Feb. 6, 2012) (citing L. Civ. R. 72.1(a)(1)); Howard Johnson Int'l, Inc. v. SSR, Inc.,
Civil Action No. 14-4611 (KM), 2015 U.S. Dist. LEXIS 94343, at *4 (D.N.J. July 20, 2015).
11

Fed. R. Civ. P. 16(a).
2

determination of every action and proceeding.”12 Decisions by magistrate judges must be upheld
unless “clearly erroneous or contrary to law.”13
II.

Defendant’s Motion to Extend Time
Here, Officer Nogan requests an extension of time to answer, move, or otherwise reply to

the Amended Complaint under Rule 6(b) of the Federal Rules of Civil Procedure. The Court may
for “good cause” extend deadlines if a party failed to act within a specified time and the failure to
act is based on “excusable neglect.”14 An excusable neglect determination is an equitable one, and
the inquiry takes account of “all relevant circumstances surrounding the party's omission.”15 To
determine whether Mr. Nogan has demonstrated “excusable neglect,” the Court considers the
following non-exclusive factors: “the danger of prejudice to the opposing party, the length of the
delay and its potential impact on judicial proceedings, the reason for the delay, including whether
it was within the reasonable control of the movant, and whether the movant acted in good faith.”16
On balance, the Court finds that Mr. Nogan has demonstrated “excusable neglect” and
there is good cause to allow him to file a late Answer, move, or otherwise reply to the Amended
Complaint. Defense counsel certifies that while service was “evidently accepted on behalf of
Defendant Nogan on December 3, 2015,” he “did not become aware of the suit against him until

12

Fed. R. Civ. P. 1.

13

28 U.S.C. § 636(b)(1)(A).

14

Fed. R. Civ. P. 6(b)(1)(B).

15

Doug Brady, Inc. v. New Jersey Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J.
2008) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395
(1993)).
16

Murdock v. Borough of Edgewater, 600 F. App'x 67, 71 (3d Cir. 2015) (internal citations
omitted).
3

shortly after the executed summons was e-filed on November 28, 2016.”17 Furthermore, “[o]nce
Defendant Nogan became aware of the Amended Complaint, he requested representation by the
Attorney General’s Office.”18 Upon Officer Nogan’s request, an investigation commenced and
“approval for representation was promptly completed.” 19
Under these circumstances, there is no indication that Officer Nogan acted in bad faith as
the delay appears to have been beyond his control. The docket illustrates that upon the filing of
summons, approximately one month transpired until counsel entered an appearance on Officer
Nogan’s behalf.20 In other words, Officer Nogan became aware of the Amended Complaint on
November 28, 2016 and sought counsel, the Attorney General’s Office commenced an
investigation, and “approval for representation was promptly completed.”21 There is also nothing
before this Court to indicate that Mr. Love has been meaningfully prejudiced by the delay.22
Rather, the bulk of his opposition is grounded in his disagreement with Defense counsel’s
certification and whether Office Nogan had knowledge of the suit against him. For example, Mr.
Love previously wrote to the Court complaining that Office Nogan moved him to another prison
cell due to “mold complaints” on or about September 1, 2016.23 Accordingly, “[t]o claim

17

(D.E. 67-3, Certification of Ashley Gagnon (“Gagnon Cert.”) ¶¶ 5-6).

18

(D.E. 67-3, Gagnon Cert. ¶ 7).

19

(Id. ¶ 9).

20

(D.E. 65).

21

(D.E. 67-3, Gagnon Cert. ¶¶ 7-9).

Some prejudice is inherent in any delay but “delay alone is not a sufficient basis for establishing
prejudice.” See Davis v. Musler, 713 F.2d 907, 916 (2d Cir. 1983) (citing Feliciano v. Reliant
Tooling Co., Ltd., 691 F.2d 653, 656-57 (3d Cir. 1982)).
22

23

(D.E. 49).
4

defendant Nogan just learned about the lawsuit on Nov[ember] 28 is simply false.”

24

The Court

finds that even if Officer Nogan knew of a mold complaint, it does not mean he was aware of Mr.
Love’s lawsuit or that he himself was named as a Defendant. This is especially true whereas here
“there is no indication that Defendant Nogan was . . . personally served.” 25 Lastly, and contrary to
Mr. Love’s position, the Court finds that Officer Nogan must be able to respond to the Amended
Complaint to ensure the “speedy resolution” of this case on the merits.26 Mr. Love himself has
previously complained of Officer Nogan’s failure to file an Answer; however, now that an
extension is being sought Mr. Love opposes the request.27 Given that discovery is not yet
concluded and Mr. Love seeks relief from Officer Nogan, the Court finds that there is good cause
to grant the extension based on “excusable neglect.”28

III.

Plaintiff’s Request for Leave to Supplement the Amended Complaint
Mr. Love has informally requested leave to supplement his complaint29 but has failed to

provide a proposed pleading. The Court’s Local Rules require the moving party to “attach . . . a
copy of the proposed pleading.”30 Furthermore, the Amended Scheduling Order which likely

24

(D.E. 70).

25

(D.E. 73).

26

(D.E. 70 at 2). See also Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984) (noting the
Third Circuit’s preference for deciding cases on the merits) (internal citations omitted).
27

(D.E. 64).

28

Mr. Love previously stated that the time to answer expired long ago yet he claimed he could
not file a motion for default “for fear of being retaliated against” by Officer Nogan. (D.E. 64 at
2).
29

(D.E. 70).

30

See L. Civ. R. 7.1(f).
5

crossed in the mail with Mr. Love’s request, expressly addresses the manner by which the parties
may amend their pleadings. In pertinent part, the Amended Scheduling Order provides:
8. If there is consent for a proposed pleading, file the amended
pleading with a stipulation per Rule 15(a)(2) via ECF. If there is no
consent:
a. The party seeking leave shall first seek consent by presenting
counsel for the adversary with 1) the proposed pleading, 2) a letter
explaining what changes are being made from the current pleading
to the proposal (or a redlined (or track changes) version of the
proposed pleading), and 3) a stipulation to file on consent. The
recipient shall either consent or provide written objection(s)
supported by a letter brief to the requester within 14 days. The
requester will then either draft a new proposal and restart the process
or provide its response supported by a letter brief within 10 days.
This process should be repeated until there is either consent or an
impasse.
b. Impasse. If there is an impasse after a genuine effort to resolve
the dispute, the party seeking to amend or supplement shall request
leave to file no later than 3/3/2017. The request for leave shall
include 1) the proposed pleading, 2) the redlined (or track changes)
version of the proposed pleading, 3) the respective letter briefs
regarding futility, and 4) a proposed form of order. See L.Civ.R.
7.1(f). If a party seeks to file a motion to amend or supplement after
the specified date, the party must show good cause why the
application could not have been done earlier.31
For these reasons, the Court agrees with Defendants that Mr. Love must make his demands
by the proper procedure, including but not limited to, providing a proposed pleading.32
Accordingly, this request for leave to supplement the Amended Complaint is denied without
prejudice.
An appropriate Order follows:

31

(D.E. 69 ¶ 8).

32

(D.E. 73).
6

ORDER
IT IS on this Wednesday, February 01, 2017,
1. ORDERED, that Defendant Nogan’s motion to extend time to answer, move, or otherwise
reply to the Amended Complaint is granted within twenty days of the date of this Order; and
it is further
2. ORDERED, that Plaintiff Love’s request for leave to file a supplemental Complaint is denied
without prejudice; and it is further
3. ORDERED, that the Clerk of the Court shall provide a copy of this Order to the Plaintiff.

2/1/2017 8:15:54 PM

Original: Clerk of the Court
Hon. Susan D. Wigenton, U.S.D.J.
cc: All parties
File
Mr. Lemont Love
670637/331321C
East Jersey State Prison
Lockbag R
Rahway, NJ 07065

7