MURRAY et al v. COUNTY OF HUDSON et al

Filing 82

OPINION. Signed by Chief Mag. Judge Mark Falk on 6/2/2021. (lag, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 17-2875 (JMV)

DANIEL MURRAY; PATRICIA AIKEN,
personally and as the owner of
EDPDLAW, LTD.; EDPDLAW, LTD.;
and OMAR ORTIZ,
Plaintiffs,

v.

OPINION

COUNTY OF HUDSON; HUDSON
COUNTY, DEPARTMENT OF
CORRECTIONS; THOMAS A. DEGISE,
in his official capacity as County
Executive; OSCAR AVILES, personally
and in his official capacity as Director of
the Department of Corrections; KIRK
EADY, personally and in his official
capacity as Deputy Director of the
Department of Corrections; HOWARD
MOORE, personally and in his official
capacity; TISH NALLS-CASTILLO,
personally and in her official capacity;
John/Jane Does 1-25,
Defendants.

FALK, U.S.M.J.
This matter comes before the Court upon Plaintiff Patricia Aiken’s motion for leave
to amend the Complaint. (CM/ECF No. 73.) The motion is opposed. The motion is decided
on the papers. Fed.R.Civ.P. 78(b). For the reasons set forth below, the motion is denied.

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BACKGROUND 1
This civil rights case arises out of alleged wrongdoing related to the Hudson
County Department of Corrections (“Department of Corrections”). Plaintiffs are Daniel
Murray, Patricia Aiken, Omar Ortiz, and EdPDLAW, Ltd. (collectively, "Plaintiffs").
Murray was a corrections officer employed by the County of Hudson. While employed,
Murray served in various capacities for the Police Benevolent Association ("PBA") Local
No. 109. Ortiz was a Lieutenant in the Department of Corrections and served in various
union positions, including president of PBA Local No. 109. Aiken is the owner of
EdPDLAW, Ltd. ("EdPDLAW"), a New Jersey business that provided services to law
enforcement unions which included operation of a website containing information about
public entities and other relevant resource information. Beginning in August 2010,
EdPDLAW entered into an agreement with the PBA to provide its services.
Plaintiffs asserts various allegations against Defendants County of Hudson
("County"), Department of Corrections, Thomas A. DeGise, Oscar Aviles, Kirk Eady,
Howard Moore, Tish Nalls-Castillo, and John/Jane Does 1-25 (collectively, "Defendants")
in this case. Among other things, Plaintiffs claim that Defendants took retaliatory action
against them after EdPDLAW was hired to undertake an investigation into the proper titles
of Defendants Aviles and Eady which allegedly revealed that they held civilian titles while
remaining in the Police and Fire Retirement System, and that promotions were given in
violation of the New Jersey Civil Service regulations. Plaintiffs claim that they were the
victims of retaliation by Defendants following publication by EdPDLAW of the alleged

The background facts are taken largely from the District Court’s Opinion on Defendants’ motion to dismiss
(CM/ECF No. 17.)

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incriminating information on its website, as well alleged incriminating statements about
Nalls-Castillo. Specifically, Plaintiffs contend the Defendants made it known that they
intended to retaliate against PBA representatives including Murray and Ortiz, and intended
to get Aiken fired from working with the PBA.
With the assistance of counsel, Plaintiffs filed a Complaint on April 26, 2017.
Plaintiffs filed an Amended Complaint, on consent, on July 13, 2017. The Amended
Complaint asserts thirteen counts, including claims for multiple violations of 42 U.S.C. §
1983, claims for state statutory violations, as well as common law claims for tortious
interference with a business relationship and intentional and negligent infliction of
emotional distress. Defendants filed their Answers on September 8 and October 6, 2017.
(CM/ECF Nos. 12 and 15.) 2 Aviles moved to dismiss. (CM/ECF No. 13.) On June 14,
2018, the Court granted Aviles’s motion. The Order dismissed all claims, some without
prejudice, and provided Plaintiffs 30 days within which to file a Second Amended
Complaint consistent with the Court’s accompanying Opinion. (CM/ECF Nos. 17 and 18.)
Plaintiffs did not file an amended pleading and the Court, on July 16, 2018, dismissed all
claims against Aviles with prejudice. (CM/ECF No. 19.)
The Court conducted an initial conference and entered a scheduling order pursuant
to which any motion to amend pleadings was to be filed by February 28, 2019, and closing
discovery on April 30, 2019. (CM/ECF No. 26.) Fact discovery was extended six times,
with the most recent scheduling order closing fact discovery August 31, 2021. (CM/ECF
No. 81.)

Answers were filed by DeGise, Eady, Aviles and the County. Nalls-Castillo and the Department of Corrections has
not answered in this case.

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On October 16, 2020, Plaintiffs’ Counsel filed a motion to withdraw its
representation of Plaintiffs Aiken and EdPDLAW only. On January 5, 2021, with the
consent of Aiken, the Court granted Counsel’s motion to withdraw. (CM/ECF No. 64.)
The Order provided that Aiken would proceed pro se, but could not represent EdPDLAW
as she is precluded by law from doing so.
On March 22, 2021, Aiken, now proceeding pro se, filed the instant motion for
leave to file a Second Amended Complaint (“SAC”). (CM/ECF No. 73.) Although not
entirely clear to the Court, according to Aiken, she seeks to amend her pleading to
“clarify[y] some matters,”, add new causes of action, rename Aviles as a defendant, and
add a new defendant allegedly previously identified as a John Doe. 3 (CM/ECF No. 73, ¶¶
12-13.) Defendants oppose the motion arguing, among other things, that Plaintiff is barred
from amending the Complaint as proposed, that her delay in attempting to do so is
prejudicial, that the claims against Aviles have previously been dismissed with prejudice,
and that the claims she seeks to assert against the proposed new defendant, County
Counsel Donato J. Battista, and DeGise are futile.
DISCUSSION
A. Legal Standard for Amendment
Requests to amend pleadings are usually governed by the rather liberal Federal
Rule of Civil Procedure 15. 4 However, when a party seeks to amend beyond a deadline

Plaintiff also states that she seeks to rename “former Defendant[ ] DeGise”. However, DeGise appears to currently
be a defendant in this case. (CM/ECF No. 73, ¶12.)
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Once a responsive pleading has been filed, “a party may amend its pleadings onlywith the opposing party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Leave to amend is generally granted unless there is: (1) undue
delay or prejudice; (2) bad faith; (3) dilatory motive; (4) failure to cure deficiencies through previous amendment; or
(5) futility. Foman v. Davis, 371 U.S. 178, 182 (1962).
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in a scheduling order, the more demanding standard of Rule 16 applies. Under Rule 16, a
party must show “good cause” to alter the scheduling order. See Fed.R.Civ.P. 16;
Dimensional Commc’n, Inc. v. OZ Optics, Ltd., 148 F. App’x 82, 85 (3d Cir. 2005)
(good cause standard when determining the propriety of a motion to amend after the
deadline elapsed). The ultimate decision to grant or deny leave to amend is a matter
committed to the Court’s sound discretion. See, e.g., Zenith Radio Corp. v. Hazeltine
Research, Inc., 401 U.S. 321, 330 (1970).
B. Leave to Amend Should Be Denied
Aiken’s proposed SAC appears to add new counts including failure to
train/supervise and violations of the Americans with Disabilities Act. It also seeks to
rename Aviles as a defendant and add County Counsel Donato J. Battista, Esq. as a new
defendant. Aiken’s motion to amend is denied in its entirety for the following reasons as
set forth below.
Aiken has failed to demonstrate good cause as to why the date for amendment in
the scheduling order, February 28, 2019, should be altered. Even if the Court were to
apply the more liberal standard of Rule 15 governing amendment, Aiken’s extreme
unexplained delay would result in unfair prejudice to the parties were the motion to be
granted. It is rather straightforward. The events from which the claims derive began in or
about 2012, some nine years ago. Aiken’s papers provide virtually no explanation for the
delay in seeking to amend, and certainly no legitimate explanation.
Aiken’s states that “[o]ver the course of the past 3 years . . . new information has
come to light” which would support amendment. Aiken has not explained how this
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information was produced, other than to say depositions were taken, or how she intends
to use it. More notably, up until only a few months ago, Aiken was represented by
counsel in this case and had been so when this purported new information was
discovered. Any delay, other than to suggest it took time to obtain the case file from
prior counsel, or to implicate him in the delay, has been largely unaddressed by Aiken in
this motion.
The prejudice is obvious. The existing parties have a right to have the case against
them determined in a reasonable time frame. Adding new parties and claims would
require discovery, would likely involve motion practice, and would no doubt delay
proceedings substantially. This case is already four years old. Discovery has already
been extended more than five times. Given how much time has passed, and the
likelihood that recollections of the events have faded and access to sources of proof have
become more challenging, permitting amendment at this time would be highly prejudicial
to the existing defendants. Furthermore, the Court has an interest in the timely resolution
of cases before it, and prolonging this litigation by adding two defendants at this late date
is contrary to that interest. The Court is cognizant of the generally liberal standard of
allowing amendment of pleadings; however, in the absence of some legitimate reason, it
would be unfair to allow further amendment at this time.
With respect to renaming Aviles as a defendant, the claims against him have
already been dismissed, with prejudice, nearly three years ago. Plaintiff does not appear
to allege mistake or inadvertence, but again seems to suggest that prior counsel failed to
act following the Court’s dismissal of the claims.
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The Court has serious concerns that the proposed amendments are futile. Any new
causes of action against the County, the Department of Corrections, Aviles as its Director
and Battista as County Counsel would likely be barred for failure to file a timely Tort
Claims Notice. See N.J.S.A. 59:8-8 (a claimant’s right to institute an action against a
public entity is conditioned upon the claimant having filed a Notice of Claim pursuant to
within 90 days following accrual of the action). Moreover, according to Defendants,
Battista has nothing to do with the operation of the Correctional Center 5 or the Union
related to it. 6
Although not the basis alone for denial of the motion, the Court notes that Aiken’s
failure to comply with Local Civil Rule 15.1 which governs motions to amend pleadings
requires that the motion papers contain a “red-lined” version delineating the precise
amendments the movant seeks to make. See L.Civ.R. 15.1(a)(2). The purpose of the
Rule is to provide the Court and the parties an opportunity to evaluate the proposed
claims. See Folkman v. Roster Fin. LLC, 2005 WL 2000169, at *8 (D.N.J. Aug. 16,
2005); see also P. Schoenfeld Asset Mgt. v. Cendant Corp., 142 F.Supp.2d 589, 622
(D.N.J.2001).
Here, Plaintiff’s motion papers do not contain a red-lined version. The proposed

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Aiken’s pleading of fictitious parties is not a guarantee that an amendment to identify them will be permitted.
Plaintiffs identified John/Jane Does as “unidentified employees of the County.” (Am. Compl. at ¶11.) A pleading
must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 667-78 (2009). This pleading standard “does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (quoting Bell Atl.
Corp. V. Twombly, 550 U.S. 544, 555 (2007)). Here, no facts were alleged with respect to the fictious parties to
support any claims against Battista.
Defendants also state that DeGise has no involvement in the day-to-day operations of the Correctional Center or
with the Unions and negations with them.
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SAC is 89 pages long, some 26 pages longer than the First Amended Complaint. Given
the length and complexity of the allegations in the proposed pleading, the lack of a redlined version made it that much for challenging for the Court to decipher. Although the
Court strains to be indulgent with pro se litigants, basic rules must be followed. Without
a red-lined version, neither the Court nor Defendants can adequately assess the claims
Aiken seeks to assert. Thus, notwithstanding the liberal standard governing amendments
of pleadings, the Court simply cannot grant the motion.

CONCLUSION
For the reasons set forth above, Aiken’s motion for leave to amend her Complaint
is denied.

s/Mark Falk
MARK FALK
United States Magistrate Judge

Dated: June 2, 2021

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