BIAGGI-PACHECO v. THE CITY OF PLAINFIELD et al

Filing 61

OPINION. Signed by Judge Kevin McNulty on 01/31/2019. (sms)

T
UNITED STATES DISTRICT COUR
SEY
FOR THE DISTRICT OF NEW JER

HECTOR W. BIAGGI-PACHECO,

Civ. No. 16-3511 (KM) (JBC)

Plaintiff,
OPINION
V.

THE CITY OF PLAINFIELD,
PLAINFIELD CITY POLICE
,
DEPARTMENT, UNION COUNTY
.
STATE OF NEW JERSEY, ET AL
Defendants.
KEVIN MCNULTY, U.S.D.J.:
co, alleges that the Defendants
The plaintiff, Hector Biaggi-Pache
l of the
ained him. Despite the dismissa
ngfully arrested, charged, and det
wro
an
ly held in Union County jail for
charges against him, he was alleged
plaint
ase. In his Second Amended Com
additional six days prior to his rele
defendant the
the first time, seeks to add as a
(“2AC”),’ Mr. Biaggi-Pacheco, for
hael Metz.
police officer who arrested him, Mic
ond
Metz’s motion to dismiss the Sec
Now before the Court is Officer
12(b)(6). His
Federal Rule of Civil Procedure
Amended Complaint pursuant to
plaint
filed the Second Amended Com
l contention is that the Plaintiff
principa

abbreviated as follows:
Record items cited repeatedly will be
Second Amended Complaint (DE 40)
“2AC” =
miss the Second
Brief in Support of the Motion to Dis
“Metz Br.” =
Amended Complaint (DE 49-2)
icer Metz’s Motion to
Plaintiff’s Brief in Opposition to Off
“P1. Br.” =
plaint (DE 55)
Dismiss the Second Amended Com
Reply Brief of Officer Metz (DE 58)
“Metz Reply” =
1

limitations, and that it does not
after the expiration of the relevant statutes of
timely-filed complaint. See Fed.
relate back to the date of filing of the original,
in, I will grant Officer Metz’s motion
R. Civ. P. 15(c). For the reasons stated here
to dismiss.
I.

Background
a. Factual Summary

allegations of the Second
Except insofar as they name Officer Metz, the
original Complaint and the First
Amended Complaint are similar to those of the
). The allegations are assumed to
Amended Complaint. (See DE 1; DE 11; 2AC
Section II, infra.
be true for purposes of this motion only. See
field, New Jersey, which is in
Mr. Biaggi-Pacheco is a resident of Plain
is a police officer employed by
Union County. (2AC at 3 (J 1)1.2 Michael Metz
3)). While conducting a
4
the Plainfield City Police Department. (2AC at (
Officer Metz arrested Mr. Biaggi
sweep and mass arrest on December 5, 2014,
n County Jail. (2AC at 7 ( 3); 2AC
Pacheco and he was incarcerated in the Unio
with a drug offense. (2AC at 7 (
at 4, (J 3)). Mr. Biaggi-Pacheco was charged
inst Mr. Biaggi-Pacheco were
2)). On January 16, 2015, the charges aga
charges having been dropped, he
administratively terminated. (Id.) Despite the
days later, on Januanr 22, 2016,
was not released from incarceration until six
ntained his innocence throughout his
(2AC at 8, ( 5)). Mr. Biaggi-Pacheco mai
incarceration and thereafter. (Id. at 8, (J 4)).
predecessor, asserts seven
The Second Amended Complaint, like its
Officer Metz as a defendant:
causes of action, all of which now include
Prosecution (42 U.S.C. § 1983)
Count I: Wrongful Arrest and Malicious
Count II: Wrongful Imprisonment
Count III: Malicious Prosecution

s over at paragraph 1 in each
The paragraph numbering inconveniently start
Citations to the Second Amended
subsection of the Second Amended Complaint.
ber where the citation occurs, in
Complaint will therefore contain the page num
ds to the subsection.
addition to the paragraph number that correspon
2

2

of Emotional Distress
Count IV: Intentional Infliction
Count V: Abuse of Process
Count VI: Negligence
hts Act
Count VII: New Jersey Civil Rig
attorneys’
pensatory damages, as well as
at 12-24). The Plaintiff seeks com
(Id.
ts of suit.
fees, punitive damages, and cos
b. Procedural History
on May
the Superior Court of New Jersey
Plaintiff first filed this action in
ginal
y defendants removed the ori
6. (DE 1 at 8). The Union Count
19, 201
ss
(DE 1 at 1), and moved to dismi
t to this Court on June 16, 2016
Complain
tain claims
uary 30, 2017, I dismissed cer
the Complaint. (DE 3). On Jan
leave to
Jersey and granted the Plaintiff
ected against the State of New
dir
alleged
cifically what would need to be
his complaint, stating fairly spe
amend
to make out a claim. (DE 10).
t (DE 11),
d his First Amended Complain
On March 1, 2017, Plaintiff file
. On October
ved to dismiss. (DE 18; DE 24)
ich Defendants subsequently mo
wh
e of
State of New Jersey and som
I dismissed all counts against the
13, 2017,
29; DE 30).
UCPO and Union County. (DE
the counts against defendants
checo filed the Second Amended
On April 6, 2018, Mr. Biaggi-Pa
ntially
ive pleading. (2AC). It is substa
t, which is the currently operat
Complain
for the first time it names Officer
First Amended Complaint, but
similar to the

First Amended Complaint (DE 29,
r opinion and order addressing the
In a prio
l infliction of
prosecution), Count IV (intentiona
30), 1 dismissed Count III (malicious
nty and UCPO.
Cou
(abuse of process) as to Union
t
emotional distress), and Count V
to assert those counts, withou
tinues
Amended Complaint, however, con
ruling;
The Second
to my prior
se same Defendants. I will adhere
significant alteration, against tho
dismissed as against
Amended Complaint remain
ure to state
Counts Ill, IV, and V of the Second
were dismissed for, inter alia, fail
County and UCPO. Because they
ain
Union
because the factual allegations rem
facts constituting a viable claim, and
all Defendants, including
uld be deemed to apply to
unchanged, those dismissals sho
t Metz.
(as alternative grounds) Defendan
3

3

miss
Officer Metz’s motion to dis
nt. Now before the Court is
Metz as a Defenda
laint as untimely. (DE 49).
the Second Amended Comp
Standard of Review
ssal of a
b)(6) provides for the dismi
Rule of Civil Procedure 12(
Federal
be
claim upon which relief can
or in part, if it fails to state a
complaint, in whole
that
ars the burden of showing
nt, as the moving party, be
granted. The defenda
a China Minmetals Corp.,
imal Science Products, Inc.
no claim has been stated. An
n to dismiss,
r the purposes of a motio
469 n. 9 (3d Cir. 2011). Fo
654 F.3d 462,
sonable
cepted as true and all rea
in the complaint are ac
the facts alleged
the
w Jersey Carpenters &
in favor of the plaintiff. Ne
inferences are drawn
F.3d 297, 302 (3d
Corp. of New Jersey, 760
Thereof u. Tishman Const.
Tmstees
U.

Cir. 2014).

nt
not require that a complai
of Civil Procedure 8(a) does
Federal Rule
s obligation to
s. Nevertheless, “a plaintiff
detailed factual allegation
contain
n labels and
t to relief requires more tha
‘grounds’ of his ‘entitlemen
provide the
n will
elements of a cause of actio
a formulaic recitation of the
conclusions, and
. Thus, the
, 550 U.S. 544, 555 (2007)
” Bell At!. Corp. a Twombly
not do.
iffs right to
sufficient to raise a plaint
s factual allegations must be
complaint’
face.” Id. at
claim is “plausible on its
eculative level, so that a
relief above a sp
nk,
, LLC ti. Huntington Nat. Ba
n Student Housing Assocs.
570; see also West Ru
ard is met
at facial-plausibility stand
165, 169 (3d Cir. 2013). Th
712 F.3d
draw the
nt that allows the court to
intiff pleads factual conte
“when the pla
ged.”
ble for the misconduct alle
e that the defendant is lia
reasonable inferenc
ombly, 550 U.S. at 556).
. 662, 678 (2009) (citing Tw
Ashcroft v. Iqbal, 556 U.S
ement’.
akin to a ‘probability requir
usibility standard is not
While “[t]he pla
. at 678.
r possibility.” Iqbal, 556 U.S
asks for more than a shee
it
rtheless, if a
affirmative defense. Neve
e statute of limitations is an
Th
y be subject
face of the complaint, it ma
fect is apparent from the
timeliness de
12(b)(6):
to dismissal under Rule

4

that
Technically, the Federal Rules of Civil Procedure require
states
affirmative defenses be pleaded in the answer. Rule 12(b)
shall be asserted in the responsive pleading
that ‘je]very defense
nses may at
thereto if one is required, except that the following defe
nses listed
the option of the pleader be made by motion....’ The defe
, a
in Rule 12(b) do not include limitations defenses. Thus
Rule 12(b)
limitations defense must be raised in the answer, since
law of this
does not permit it to be raised by motion. However, the
ations
Circuit (the so-called Third Circuit Rule’) permits a limit
only if
defense to be raised by a motion under Rule 12(b)(6), but
the cause
the time alleged in the statement of a claim shows that
limitations.
of action has not been brought within the statute of
...

) (citations and
Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002
quotations omitted).
Ill.

Analysis

in the Second
Officer Metz argues that his inclusion as a defendant
s that correspond to
Amended Complaint is barred by the statutes of limitation
all of the applicable
Plaintiff’s causes of action. The parties do not dispute that
statutes of limitations are two years.4
, and released on
Mr. Biaggi-Pacheco was arrested on December 5, 2014
in that date range.
January 22, 2015. The causes of action surely accrued
in two years after those
Thus the complaint would have been timely if filed with
an’ 22, 2017, at the
dates: i.e., by December 5, 2016, at the earliest, or Janu
latest.

193 (3d Cir. 2001)
See Singletary v. Pennsylvania Dep’t of Cont, 266 F.3d 186,
ations for purposes of Rule
(relying on the pasties as to the applicable statute of limit
WL 1387319, at *10
15(c) analysis); Harry v. City of Philadelphia, No. 03-66 1, 2004
state’s statute of limitations
(E.D. Pa. June 18, 2004) (“It is well-established that the
under § 1983.”) (citing
for personal injury actions applies to all actions brought
F.3d 582, 599-600 (3d
Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142
11-3453, 2011 WL 4906631, at
Cir. 1998)); Kreimer v. Nat’l R.R. Passenger Corp., No.
t be
*1 (D.N.J. Oct. 13, 2011) (“Under New Jersey law, a personal injury claim mus
statute of
follows that the
brought within two years of the date of accrual. Thus, it
is two years. A § 1983 cause of action
limitations for § 1983 claims in New Jersey
occurred.”) (citations
accrues under federal law when the allegedly wrongful act
omitted).
a

4

Plaintiff filed the original Complaint in state court on May 19, 2016.
That date, of course, was well within the two-year limitations period, which
expired on December 5, 2016, at the earliest. The original complaint, however,
did not name Officer Metz as a defendant, and neither did the First Amended
Complaint.5
The Second Amended Complaint was filed on April 6, 2018, over a year
after the expiration of the two-year limitations period. The Second Amended
Complaint is the first pleading that names Officer Metz as a defendant. If
applicable, however, “Rule 15(c) can ameliorate the running of the statute of
limitations on a claim by making the amended claim relate back to the original,
timely filed complaint.” Singletary a Pennsylvania Dep’t of Con-., 266 F.3d 186,
193 (3d Cir. 2001); Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir.
2003) .7 Officer Metz now argues that the Second Amended Complaint does not
relate back to the original Complaint under Rule 15(c), and that therefore, as to
him, the claims in the Second Amended Complaint are time-barred.
Plaintiff points out that the original Complaint named police officers,
whose names he did not then know, as fictitious John/Jane Doe defendants:
Defendants, John and Jane Does (1-100), were the Director(s) of Public
Safety, supervisory officers, and/or policy makers for Plainfield City, the
Plainfield City Police Department, and John/Jane Roe(s), 1-25, fictitiously
named City of Plainfield Police Officers, who participated in and condoned or
ratified the illegal actions complained of in the within Complaint.
John/Jane Roe(s), 1-25, fictitiously
At all times referenced herein,
Police Officers, behaved improperly in arresting and
named City of Plthnfield
.

.

.

It was removed to this court within 30 days, as required. That date is irrelevant
to the statute of limitations analysis.
6
The First Amended Complaint, which also did not name Officer Metz, was filed
on March 1, 2017. That date was outside the two-year limitations period, which
expired on January 22, 2017, at the latest.
Rule 15(c) was “amended as part of the general restyling of the Civil Rules” in
2007. Fed. R. Civ. P. 15 Committee Note to 2007 Amendments. There was no change
of substance. The pre-2007 cases cited in this Opinion therefore remain good law. See
Dean v. Deptford Twp., No. 13-5197, 2015 WL 3755056, at *3 n.2 (D.N.J. June 16,
2015).
6

Federal Civil
detaining Plaintiff, Biaggi-Pacheco, violating his State and
Rights.
ing policy and
Moreover, the acts of the Defendants were a part of an ongo
were a natural
practice of these various violations of Civil Rights, and/or
Civil Rights of
and foreseeable consequence of the disregard for the
n County
individuals in Plainfield and being prosecuted by the Unio
field, Plainfield
Prosecutors Office, such that the Defendants, City of Plain
named City of
Police Department, John/Jane Roe(s), 1-25, fictitiously
r’s Office, and the
Plainfield Police Officers, the Union County Prosecuto
Civil Rights
State of New Jersey, had encouraged and condoned these
ent them.
violations and/or failed to establish a system to prev
(DE 1 at 9

¶

3; DE 1 at 13

¶

2; DE 1 at 14-15

¶

5).

holder for
Plaintiff’s implication is that “John Doe” served as a place
ations as to him.
Officer Metz and stopped the running of the statute of limit
“Doe” with a parry’s
The law is not so simple. Replacing a fictitiously named
ing of a new party
real name amounts to the changing of a party or the nam
v. Fuentes, No. 15under Rule 15(c). Garuin, 354 F.3d at 220; see also Velez
*3 (D.N.J. June 30, 2017); Anderson a City of
6939, 2017 WL 2838461, at
district court correctly
Philadelphia, 65 F. App’x 800, 802 (3d Cir. 2003) (“The
d not be extended by
concluded that [the statute of limitations period coul
Thus it is necessan to
naming the ‘John Doe’ set forth in the complaint.”).
nd Amended
determine whether the naming of Officer Metz in the Seco
t under Rule 15(c).
Complaint relates back to the date of the original Complain
I answer that question in the negative.
A.

Relation Back

Rule 15(c)(1) provides:
of the original
An amendment to a pleading relates back to the date
pleading when:
out of the
(B)the amendment asserts a claim or defense that arose
pted to be set
conduct, transaction, or occurrence set out--or attem
out--in the original pleading; or
of the party
(C) the amendment changes the party or the naming
is satisfied and
against whom a claim is asserted, if Rule 15(c)(1)(B)
the
if, within the period provided by Rule 4(m) for serving
7

summons and complaint, the party to be brought in by
amendment:
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(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.
“The Rule is written in the conjunctive, and courts interpret [Rule
15(c)(1)(C)j as imposing three conditions, all of which must be met for a
successful relation back of an amended complaint that seeks to substitute
newly named defendants.” Singletanj, 266 F.3d at 194. Those three
requirements are:
(1) the claim against the newly named defendant must have arisen “out
of the conduct, transaction, or occurrence set forth or attempted to be set forth
in the original pleading” (Le., Rule 15(c)(1)(B) must be satisfied);
(2) the newly named defendant must have received such notice of the
action that it will not be prejudiced (i.e., Rule 15(c)(l)(C)(i) must be satisfied);
and
(3) the newly named defendant must have known, or should have known,
that the action would have been brought against it, but for a mistake
concerning the newly named defendant’s identify (La, Rule 15(c)(1)(C)(ii) must
be satisfied). Id.
The first condition is satisfied here because the Second Amended
Complaint arises from the same occurrence set forth in the original pleading.
Both complaints involve the arrest and allegedly prolonged incarceration of the
Plaintiff from December 5, 2014 through January 22, 2015. See Garuin, 354
F.3d at 222 (“[CJlearly the new claims against the individual officers alleging
excessive force ‘arose out of the conduct, transaction, or occurrence set forth
in the original pleading.”’ (citing Fed. R. Civ. P. 15(c))).
The second and third conditions pertain to the newly-named defendant’s
notice of the action or the fact that, but for a mistake, it would have been
brought against that defendant. The second and third conditions must be met
S

‘within the period provided by Rule 4(m) for service of the summons and
complaint, which is 90 days after the filing of the timely complaint. Singletanj,
266 F.3d at 194 (presuming that the limit “provided by Rule 4(m) for serving
the summons and complaint” of Rule 15(c) applies to the filing date of the
timely complaint as opposed to a subsequent complaint); Garvin, 354 F.3d at
222 (same). That period concededly expired long before the filing of the Second
Amended Complaint.
Officer Metz certifies without contradiction that at the time of the original
Complaint, the time of the First Amended Complaint, or even long thereafter,
he did not have any notice of this lawsuit. He learned about it when he was
(DE
served with the summons and Second Amended Complaint in April 2018.
49-6 at 3

¶

3; DE 58-6

¶

13). Evidence of actual notice is therefore lacking. See

Singletanj, 266 F.3d at 194; Garvin, 354 F.3d at 222.
Actual notice, however, is not the only kind; constructive notice will
suffice under certain circumstances. Singletanj, 266 F.3d at 197. If a newly
two
named defendant has not received actual notice of the action, there are
methods of imputing notice: (1) the “shared attorney” method8; and (2) the
t
“identity of interest” method. Garuin, 354 F.3d at 222-23. “Identity of interes
generally means that the parties are so closely related in their business
operations or other activities that the institution of an action against one serves
to provide notice of the litigation to the other.”’ Singletanj, 266 F.3d at 197
at
(quoting 6A Charles A. Wright et al., Federal Practice and Procedure § 1499,
146 (2d ed. 1990)). Thus, the relevant issue is whether Officer Metz has a
sufficient identity of interest with an originally named and served defendant,
such that notice of the action can be imputed to Officer Metz. Id. at 197.

Because Officer Metz does not share an attorney with any of the named
Defendants, I set this alternative aside.
9

8

Officer Metz is a police officer of the City of Plainfield. His employer(s),
the City of Plainfield and the “Plainfield City Police Department,”9 were both
named in the original Complaint and both were apparently duly served within
the time limits of Rule 4(m).’° (DE 1 at 8).
The question, then, is whether Officer Metz is “so closely related to his
employer for the purposes of this

type

of litigation that these two parties have a

sufficient identity of interest so that the institution of litigation against the
employer serves to provide notice of the litigation to the employee.” Singletanj,
266 F.3d at 198. The U.S. Court of Appeals for the Third Circuit has construed
imputation narrowly when the party that is sought to be added is a staff-level
employee. Walters v. Muhlenburg Twp. Police Dep’t, 536 F. App’x 213, 216 (3d
Cir. 2013) (finding that where the township police department had been named
as a defendant, a later-named police officer could not “be deemed to have
notice solely by virtue of his employment with the defendant” for purposes of
Rule 15(c) relation-back analysis); Garuin, 354 F.3d at 227 (holding that police
officers do not rank high enough in the municipal hierarchy to permit the
conclusion that they have an identity of interest with the municipality for
purposes of notice); Singletanj, 266 F.3d at 199 (finding that a prison
psychologist, a staff-level employee, did not share an identity of interest with
the prison); see also Anderson, 65 F. App’x at 800.

The police department is properly called the Plainfield Police Division. As held in
my prior Opinion dismissing the original Complaint, the police department is not an
independent entity that may sue or be sued. The proper defendant is the City of
Plainfield, of which the police department is a division. (DE 10 at 3 n.2) (citing Buffaloe
v. City ofFlainfield, Civ. No. 12-03295, 2013 WL 2182327, at *2 (D.N.J. May 20,
2013)).

9

On February 18, 2005, counsel for Mr. Biaggi-Pacheco served a notice of tort
claim on the police department using the form promulgated by the City of Plainfield.
(DE 55-3) Plaintiff filed the original Complaint in State court on May 19, 2016. (DE 1
at 8). Defendants removed that Complaint to this Court on June 6, 2016. (DE 1)
Plainfield and the Police Department filed an Answer to the original Complaint on
August 17, 2016. (DE 6). The Answer does not assert that service was late or faulty.
10

Other courts in this District have held squarely that ordinary police
officers do not possess the necessary identity of interest with their municipal
employers. See Davis v. Perez, No. 16-CV-2784 (NLH) (JS), 2017 WL 3567973,
at *6 (D.N.J. Aug. 16, 2017), aff’d and adopted, No. 16-CV-02784 (NLH) (JS),
2018 WL2113267 (D.N.J. May 8, 2018); Velezu. Fuentes, No. 15-CV-6939,
2017 WL 2838461, at *4 (D.N.J. June 30, 2017) (“Absent other circumstances
that permit an inference that notice was received, municipal police officers do
not have an identity of interest with their city employer.”). See also Lassoffu.
New Jersey, No. 05-CV-2261 (JEI), 2006 WL 5509595, at *1 (D.N.J. Jan. 31,
2006).
Adherence to all of the Rule’s requirements serves to balance fairness to
defendants against fairness to plaintiffs:
[Ajllowing the relation back of amended ‘John Doe’ complaints
risks unfairness to defendants, who,
may have a lawsuit
sprung upon them well after the statute of limitations period has
run. But fairness to the defendants is accommodated in the other
requirements of [Rule 15(c)j.
.

.

.

Singletanj, 266 F.3d at 201 n. 5. Those “other requirements” consist primarily
of the requirement that the defendant be on actual or constructive notice of the
claim, discussed above.
I do not rule out the possibility that equitable considerations may
influence the propriety of relation-back. Facts such as the information
available to the plaintiff and the defendant’s responsibility for the unavailability
of information may come into play. To look at it another way, a court may be
more indulgent of a “mistake” and any attendant delay if it finds that they were
justifiable under the circumstances.
On that score, the Plaintiff points to the following language from
Singletanj:
It is certainly not uncommon for victims of civil rights violations (e.g., an
assault by police officers or prison guards) to be unaware of the identity
of the person or persons who violated those rights. This information is in
the possession of the defendants, and many plaintiffs cannot obtain this
11

information until they have had a chance to undergo extensive discovery
following institution of a civil action. If such plaintiffs are not allowed to
relate back their amended “John Doe” complaints, then the statute of
limitations period for these plaintiffs is effectively substantially shorter
than it is for other plaintiffs who bring the exact same claim but who
know the names of their assailants; the former group of plaintiffs would
have to bring their lawsuits well before the end of the limitations period,
immediately begin discovery, and hope that they can determine the
assailants’ names before the statute of limitations expires. There seems
to be no good reason to disadvantage plaintiffs in this way simply
because, for example, they were not able to see the name tag of the
offending state actor.
266 F.3d at 201 n. 5.”
I understand and am sympathetic to the plight of the plaintiff in the
hypothetical, but common, scenario depicted in Singletanj. Indeed, I am
generally lenient with respect to an anestee who does not know and has not
been told the name of an arresting officer. The factual scenario posed in
Singletary, however, does not match the facts of this case.
Here, Plaintiff filed the original complaint in May 2016 and Defendants
removed it to this Court a month later. At that point, the limitations period still
had another half year to run. Counsel for the plaintiff had means at his
disposal to obtain the necessary information in time to use it.
Plaintiff’s counsel states that the delay in learning the arresting officer’s
name was “specifically a consequence of the City of Plainfield Police
Department and the Union County Prosecutor’s Office’s inability to produce
any records concerning [Mr. Biaggi-Pacheco’sl arrest until near the end of
2017.” (Opp. at 11). Additionally, “the delay in the Plaintiff obtaining Rule 26
disclosures until late 2017 included over a year and half of motion practice
with various defendants.” (Id.). (No discovery-related “motion practice” appears

Singletary was here discussing and disapproving cases stating that the
plaintiffs unawareness of the officer’s name could not be considered a “mistake” for
purposes of changing a party or the name of a party. See Fed. R. Civ. P. 15(c)(1)(q(ii)
(defendant “knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity”).
11

12

on the docket; counsel seems to be referring to the motions to dismiss the
original and First Amended complaints.)
True, it was not until November 27, 2017, that Union County supplied
“Initial Disclosures pursuant to Fed. R. Civ. P. 26.” (DE 55-4). Those
disclosures include a copy of the record of booking and complaint-warrant,
both of which list Michael Metz as the arresting officer. (Id. pp. 2, 6—7).
Although the Rule requires certain disclosures without a discovery request, the
event triggering the obligation is the initial conference pursuant to Rule 26(fl.
See Fed. R. Civ. P. 26(lflC) (14-day deadline running from conference).
Acting within his discretion, the Magistrate Judge delayed the Rule 26
conference in light of the unsettled status of the allegations and claims. That
period of delay ended up encompassing the first, successful motion to dismiss,
the filing of the First Amended Complaint and resolution of related motions to
dismiss, and the motion to amend a second time. (See DE 7, 35, 39; see also
DE 41). During that period, however, the Plaintiff was not lulled into thinking
that Rule 26 disclosures were on the way; counsel knew the Rule 26 conference
that would trigger disclosure obligations had not yet taken place.
The Plaintiff claims that he was stymied in his efforts to obtain the
officer’s name. His complaints, however, are general and unsupported by any
affidavit or certification as to any efforts that were made. On the record before
ion
me, I cannot find due diligence, or really any diligence, here. As the expirat
of the statute of limitations loomed, the plaintiff could have requested limited
discovery to ascertain the name of the arresting officer. See generally Techtronic
Indus. N. Am., Inc. v. Inventek Colloidal Cleaners LLC, No. 13-CV-4255, 2013
WL 4080648, at *2 (D.N.J. Aug. 13, 2013) (applying “reasonableness standard
o,
to determine if expedited discovery is appropriate”); Tharra u. City of Chicag
816 F. Supp. 2d 541, 554 (N.D. Ill. 2011) (allowing expedited discovery in
1983 false arrest case so that the plaintiff could learn the identities of the
police officers involved in the incident). A single interrogatory presumably

§

would have sufficed. The record, however, reveals no effort of any kind to
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ascertain the arresting officer’s name between the filing of the original
Complaint and the expiration of the limitations period.
Defendant Metz adds that, even setting aside the discovery process, the
plaintiff either possessed or could easily have obtained this information. He
submits a supplemental certification (“Men. Supp. Cert.”, DE 58-6) attaching
exhibits and stating, in substance, the following:
a

The Plaintiff would have received a “Defendant’s copy” of the
Complaint-Warrant, at the time of his arrest or at the latest when
he was released from county jail. (Metz Supp. Cert.

¶J

3-5)

(attaching copy of complaint-warrant, DE 58-2)
Ordinary discovery in a criminal case would have resulted in the
turnover of copies of the complaint-warrant, booking sheet, and
other documents. (Id.

¶

6—10)

A request for the criminal file at any time following the plaintiffs
release from county jail would have yielded these documents which
reveal the arresting officer’s name. (Id.

¶

11—12)

I give these contentions some consideration, but no great weight. Officer
Metz has no first-hand knowledge; he is opining as to what would ordinarily
occur in a criminal case. Because this criminal case, unlike most, was almost
immediately dismissed, the lack of any paper discovery is easily explained. At
that time, moreover, the Plaintiff presumably had not yet consulted with
counsel about the filing of a civil lawsuit. His failure to retain a copy of the
complaint-warrant (assuming he received it), like his failure to remember the
arresting officer’s badge number or name, is understandable.
Still, the fact remains that Plaintiff and his counsel, knowing of the
expiration of the limitations period, did not take reasonable steps to obtain the
necessary facts. The second and third requirements of Rule 15(c), then, were
not met, timely or otherwise.
Based on the authorities holding that municipal police officers do not
have an identity of interest with their employer for relation back purposes, in
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the context of the lack of justification for the d&ay or correction of any
arguable “mistake,” I find that the claims against Defendant Metz in the
Second Amended Complaint do not relate back for purposes of Rule 15(c)(1j(C).
IV.

Conclusion

For the reasons stated above, Officer Metz’s motion to dismiss is granted
because the claims are barred by the relevant statutes of limitations. Because
this is an initial dismissal as to this particular defendant, it is without
prejudice to the filing of a motion for leave to amend the complaint within 30
days of this Opinion.
An appropriate Order follows.
Dated: January 31, 2019

M

HON. KEVIN MCNULTY,

15