TUPPER v. WG CRANFORD SH, LLC

Filing 14

OPINION. Signed by Magistrate Judge Stacey D. Adams on 1/3/2025. (mxw, )(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.

JANICE TUPPER,

24-cv-6660-MCA-SDA

Plaintiff,

OPINION

vs.

January 3, 2025

WG CRANFORD SH, LLC,
Defendant.
STACEY D. ADAMS, United States Magistrate Judge

Before the Court is a Cross-Motion to Amend the Complaint filed by Plaintiff Janice Tupper
(“Plaintiff”) (ECF No. 11), in response to a Motion to Dismiss filed by Defendant WG Cranford
SH, LLC (“Defendant”) (ECF No. 5). Defendant opposes the Cross-Motion. (ECF No. 12). The
Court decides this motion without oral argument pursuant to Fed. R. Civ. P. 78. After considering
the submissions of the parties, and for the reasons stated below, Plaintiff’s Cross-Motion to Amend
the Complaint is GRANTED, and Defendant’s Motion to Dismiss is ADMINISTRATIVELY
TERMINATED without prejudice.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff filed the operative complaint in Union County Superior Court on May 1, 2024.
(Compl., ECF No. 1-1). 1 Defendant filed a notice of removal on June 3, 2024. (ECF No. 1).
Plaintiff was a resident of Defendant’s assisted living facility. (Compl. ¶ 2). The lease was

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The May 1, 2024 filing was an Amended Complaint. According to Defendant, Plaintiff filed her
initial Complaint on March 12, 2024 against Defendant and several other parties, but never served
it on any named defendant. Plaintiff then filed the Amended Complaint on May 1, 2024, naming
only Defendant, and properly served it. This Court does not have a copy of the initial Complaint.
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governed by a Residency Agreement dated October 31, 2022. (Id., Ex. A).
In late June to early July 2023, Plaintiff became ill with an infection that required
antibiotics and isolation. (Id. ¶ 9). Defendant was supposed to administer prescription medication
to Plaintiff but failed to do so. (Id. ¶ 13). As a result, Plaintiff’s condition worsened, eventually
requiring hospitalization from July 27, 2023 through August 3, 2023, at which time she was
released to a subacute in-patient facility for continued care. (Id. ¶¶ 22, 26).
Prior to Plaintiff becoming ill, on April 19, 2023, Defendant filed a complaint for eviction
in Union County Superior Court. (Id. ¶ 6). Plaintiff purportedly did not receive notice of the trial
date, and judgment was entered in absentia in Defendant’s favor on June 5, 2023. (Id. ¶¶ 7-8).
On July 20, 2023, while Plaintiff was sick and quarantined, Defendant requested a posttrial warrant of removal. (Id. ¶ 20, Ex. B). Plaintiff again claims she was not made aware of the
application. (Id. ¶ 21). An order of removal was issued on July 31, 2023, while Plaintiff was in
the hospital. (Id. ¶ 25, Ex. C). The warrant of removal was executed on August 14, 2023. (Id. ¶ 27,
Ex. D).
On August 17, 2023, Defendant’s counsel advised Plaintiff via email that her personal
belongings were moved to a storage facility. (Id. ¶ 28, Ex. E). Defendant instructed Plaintiff to
retrieve her belongings by September 15, 2023 or they would be discarded. (Id. ¶ 29, Ex. E).
Plaintiff made arrangements with a moving service to retrieve her belongings on September 14,
2023. (Id. ¶ 30). Plaintiff repeatedly tried to contact Defendant to notify them that she would be
retrieving her belongings prior to the deadline. (Id. ¶ 33). However, when the movers arrived at
the storage facility on September 14, 2023, they were told that Plaintiff’s property had already
been discarded per Defendant’s instruction. (Id. ¶¶ 31-32). Among the items lost were the remains
of Plaintiff’s cremated pets, Plaintiff’s photographs and videos, her computer, important personal

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documents such as her passport, tax returns, and social security documents, and many additional
items with sentimental value. (Id. ¶¶ 62, 70).
Plaintiff alleges in the operative Complaint that Defendant breached a duty to her that
resulted in a loss of invaluable property, personal injury, emotional distress, mental anguish, loss
of enjoyment, and exposure to identity theft. (Id. ¶¶ 75-78). The proposed Second Amended
Complaint (“SAC’) does not change the alleged facts. (ECF No. 11-1, SAC, ¶¶ 1-39). It adds two
new causes of action including: breach of the lease and deprivation of property in violation of
N.J.S.A. 2A:18-72-84. 2
II.

LEGAL DISCUSSION AND ANALYSIS

A. Standard to Amend
There are two Court rules that govern amendments to pleadings under the Federal Rules of
Civil Procedure. Fed. R. Civ. P. 15(a) governs amendments to pleadings before trial. It provides
that a party may amend its pleading once as a matter of course either within “(i) 21 days after
serving it; or (ii) if the pleading is one to which a responsive pleading is required, the earlier of 21
days after service of a responsive pleading or 21 days after a motion under Rule 12(b), (e), or (f).”
Fed. R. Civ. P. 15(a)(1). If those deadlines have expired, “a party may amend its pleadings only
with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

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Plaintiff’s operative Complaint, as well as the proposed SAC, does not lay out each cause of
action in a separate count, as required by Fed. R. Civ. P. 10(b). It is therefore difficult for the Court
to parse out the specific causes of action alleged or to distinguish the causes of action from the
alleged damages. However, Courts flexibly interpret pro se litigants’ pleadings. Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 244 (3d. Cir. 2013). “This means that we are willing to apply the
relevant legal principle even when the complaint has failed to name it.” Id. at 239 (citing Dluhos
v. Strasberg, 321 F.3d 365, 369 (3d. Cir. 2003)); see also Haines v. Kerner, 404 U.S. 519, 520
(1972) (instructing Courts to hold pro se complaints “to less stringent standards than formal
pleadings drafted by lawyers.”). The Court therefore did its best to identify each separate cause of
action pled by Plaintiff.
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Fed. R. Civ. P. 16 governs amendments after a scheduling order has been entered by the
Court, and it is more stringent than Fed. R. Civ. P. 15. Under Fed. R. Civ. P. 16(b)(4), once a
scheduling order has been entered that sets a deadline for amending pleadings, that schedule may
be modified “only for good cause and with the judge’s consent.”
In the instant matter, the court has not yet entered a scheduling order. Therefore, the more
liberal standard for amendments under Fed. R. Civ. P 15 applies. Plaintiff has already amended
her pleading once (albeit in state court before any defendant was served) and filed her cross-motion
to amend more than 21 days after Defendant filed its motion to dismiss. Defendant does not
consent to the proposed amendment and, therefore, Plaintiff seeks leave of court.
The Third Circuit has adopted a “liberal” approach to amendments of pleadings. DLJ
Mortg. Cap., Inc. v. Sheridan, 975 F.3d 358, 369 (3d. Cir. 2020). “The court should freely give
leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court may deny a motion
to amend only where there is (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice;
(4) repeated failures to cure deficiencies; or (5) futility of amendment. Ramos v. Walmart Inc., No.
21-CV-13827 (BRM) (AME), 2024 WL 3456218, at *1 (D.N.J. July 17, 2024) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962); Grayson v. Mayview State Hosp., 293 F. 3d 103, 108 (3d. Cir.
1984)). The court will analyze Plaintiff’s cross-motion to amend under this liberal standard.
Defendant does not contest the amendment on the grounds that Plaintiff has unduly
delayed, is acting in bad faith or has repeatedly failed to cure deficiencies. (Def. Reply, ECF No.
12). Nor does Defendant argue that the amendment will cause it undue prejudice. (Id.). Rather,
Defendant opposes the amendment on two grounds. First, Defendant argues that Plaintiff may not
amend her pleadings in order to defeat its motion to dismiss. (Id. at 7). Second, Defendant asserts
the amendment would be futile because Plaintiff’s claims still cannot survive its motion to dismiss.

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Each of these arguments will be addressed in turn below.
B. That Plaintiff Moved to Amend in Response to a Motion To Dismiss Is Not Fatal
Defendant first argues that Plaintiff cannot amend her complaint to avoid adjudication of
the motion to dismiss. In support of argument, Defendant relies upon several cases. (Id. at 7-8).
However, Defendant misconstrues the holdings in each of these cases. Defendant is correct that a
“complaint may not be amended by the briefs in opposition to a motion to dismiss.” Gov’t Emps.
Ins. Co. v. Mount Prospect Chiropractic Ctr., P.A., 98 F.4th 463, 472 (3d Cir. 2024) (citations
omitted) (emphasis added). This holding is similar to those reached in each of the cases cited by
Defendant in opposition to Plaintiff’s cross-motion. See e.g., Bell v. City of Phila., 275 Fed. Appx.
157, 160 (3d. Cir. 2008) (noting that a plaintiff cannot amend the complaint through briefing and
further acknowledging that, in opposing a dispositive motion, “the proper procedure for plaintiffs
to assert a new claim is to amend the complaint in accordance with Fed. R. Civ. P. 15(a).”)
(emphasis added) (citing Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.
2004)); Federico v. Home Depot, 507 F.3d 188, 201-202 (3d. Cir. 2007) (holding that plaintiff
could not avoid dismissal of her fraud complaint by including after-the-fact allegations in her briefs
because a “complaint may not be amended by briefs in opposition to a motion to dismiss.”)
(emphasis added) (citations omitted)). None of these cases stand for the proposition that a motion
to amend should be summarily denied simply because it was filed in response to a motion to
dismiss. They explain that a complaint may not be amended in briefs filed in response to a motion
but, rather, the proper recourse is to file a formal application to amend.
Here, Plaintiff is not seeking avoid dismissal by expounding upon her factual allegations
in her opposition brief. Instead, she is formally seeking to amend her complaint via motion
pursuant to Fed. R. Civ. P. 15. This is precisely what the Court in Bell suggested. 275 Fed. Appx.

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at 160. See also, Federico, 507 F.3d at 192-193, 201-202 (finding it significant in affirming the
dismissal of plaintiff’s complaint that plaintiff never sought to formally amend her complaint but,
rather, subsequently sough to bolster those allegations with additional facts set forth in her brief);
Ibrahim v. DeFilippo, No. 19-CV-5021 (BRM) (TJB), 2021 WL 753898, at *8 (D.N.J. Feb. 26,
2021) (“It is well-settled that Plaintiff cannot amend a complaint through the filing of a brief, or
through arguments set forth in a brief opposing a dispositive motion.”) (emphasis added).
Accordingly, Defendant’s argument that Plaintiff’s motion to amend should be denied
strictly because it was made in response to a motion to dismiss is unavailing. Plaintiff is not asking
the Court to continue relying on the operative complaint, and merely embellishing on the facts in
her opposition brief. Indeed, the proposed SAC does not change the facts at all. Rather, Plaintiff
seeks to add two new causes of action not previously asserted. It is early in the case. No scheduling
order has been entered. There is no assertion of undue delay or lack of diligence by Plaintiff. Nor
has Defendant asserted any prejudice it will suffer if the motion is granted. Accordingly, the
motion to amend is proper under Fed. R. Civ. P. 15.
C. Plaintiff’s Proposed SAC Is Not Futile
Defendant secondarily argues that Plaintiff’s proposed SAC is futile. The standard for
assessing futility of an amended complaint is the same standard of legal sufficiency that applies
under Fed. R. Civ. 12(b)(6). Reardon v. New Jersey, No. 13-CV-5363 (NLH), 2014 WL 2921030,
at *6 (D.N.J. Jun. 27, 2014) (citations omitted). “An amendment is futile if the amended complaint
would not survive a motion to dismiss for failure to state a claim upon which relief can be granted.”
Alvin v. Suzuki, 227 F.3d 107, 121 (3d. Cir. 2000) (citation omitted). Although Rule 15 futility
“closely tracks” Rule 12(b)(6), it “does not contemplate substantive motion practice on the merits
of the claims.” Leach v. Applicant Insight, Inc., No. 20-CV-1533 (JMV), 2021 WL 236492, at *1

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(D.N.J. Jan. 25, 2021). Put differently:
If a proposed amendment is not clearly futile, then denial of leave
to amend is improper. This does not require the parties to engage in
the equivalent of substantive motion practice upon the proposed
new claim or defense; [it] does require, however, that the newly
asserted defense appear to be sufficiently well-grounded in fact or
law that it is not a frivolous pursuit.
Id. (quoting Harrison Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D. 463, 468
(D.N.J. 1990) (alteration in original) (emphases added) (citations omitted)).
As an initial matter, Defendant does not even argue that one of Plaintiff’s newly asserted
claims, alleging a violation of N.J.S.A. 2A:18-72 et seq., is futile. Instead, Defendant “reserves
its right to attack any permitted claims alleging violations of N.J.S.A. 2A:18-72 to 2A: 18-84 but
does not do so at this early motion to amend stage,” thereby acknowledging that at least some of
Plaintiff’s claims are, in fact, not futile. N.J.S.A. § 2A:18-72 provides that a landlord may dispose
of any tangible goods or personal property left by a tenant after giving notice, “only if the landlord
reasonably believes under all the circumstances that the tenant has left the property upon the
premises with no intention of asserting any further claim to the premises or the property.” There
is no showing at this point that Defendant reasonably believed that Plaintiff was not going to
reclaim her property. To the contrary, the facts as pled in the Complaint suggest Defendant was
aware Plaintiff was ill and receiving treatment in an outside facility, and that this might be the
reason she could not retrieve her personal belongings any sooner. The email sent by Defendant’s
representative giving Plaintiff 30 days to retrieve her personal property further indicates Defendant
knew Plaintiff had not fully abandoned her property. Thus, Plaintiff’s claim for violation of
N.J.S.A. § 2A:18-72 is not clearly futile.
Defendant next argues, in cursory fashion, that Plaintiff’s claim for breach of paragraph
6(d) of the lease fails because (i) Defendant removed her personal property and placed it in storage;
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and (ii) Defendant notified Plaintiff regarding potential disposal. (Reply at 9-10). This is too
limited a reading of the proposed SAC. Plaintiff’s Complaint is not predicated solely upon
Defendant’s removal of her property and the notice thereof provided to Plaintiff. It also alleges a
breach stemming from the improper disposal of that property. (ECF No. 11-1 ¶¶ 44-46). Under
New Jersey law, a breach of contract claim has four elements: (1) the parties entered into a contract
with certain terms; (2) plaintiff performed as required under the contract; (3) defendant breached
the contract; and (4) plaintiff suffered damages. See Globe Motor Co. v. Igdalev, 139 A.3d 57, 64
(N.J. 2016). Defendant’s notice to Plaintiff stated she had thirty days to retrieve her property
before it would be disposed. Plaintiff made arrangements to retrieve her property before that date,
only to learn that the property was already disposed. (ECF No. 11-1 ¶¶ 30-31). This could feasibly
constitute a beach of Defendant’s duty pursuant to the lease and the notice provided to Plaintiff.
Given the liberal standard governing motions to amend, the proposed SAC is not clearly futile.
Finally, Defendant reiterates the arguments made in its motion to dismiss with regard to
the previously pled claims in response to the Plaintiff’s motion to amend. However, these claims
are not the basis for Plaintiff’s motion to amend. Indeed, Plaintiff’s proposed SAC does not even
modify the factual allegations, it asserts two additional causes of action – neither of which is futile.
Therefore, the fact that Defendant believes the existing claims remain substantively flawed is not
a basis for denying the amendment.
III.

CONCLUSION

In summary, Plaintiff’s Cross-Motion for leave to file the proposed SAC is GRANTED.
Plaintiff shall file the SAC within 7 days of this Order. Because the Court is permitting the
Amendment,

Defendant’s

pending

Motion

to

Dismiss

is

ADMINSITRATIVELY

TERMINATED without prejudice. Following the filing of the SAC, the Court will hold a

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settlement conference before the undersigned on January 27, 2025 at 1:30 p.m. IN PERSON at
the Courthouse. If the settlement conference is unsuccessful, then the Court will set a deadline for
Defendant to file a responsive pleading to the SAC. Should Defendant wish to do so, it may then
file a motion to dismiss all or part of the SAC at that time.
Date: January 3, 2025
/s/ Stacey D. Adams
Hon. Stacey D. Adams, U.S.M.J.

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