ISRAEL v. SMITH et al

Filing 115

MEMORANDUM AND ORDER that the 101 Motion in Limine is granted. Signed by Judge Peter G. Sheridan on 4/16/2018. (mps)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BARSOUM S. ISRAEL,

Civil Action No.:
13-cv-0097 (PUS) (LHG)

Plaintiff
V.

MEMORANDUM ANI)
ORDER

LIEUTENANT DEAN R. SMITH, et. al,
Defendants.

This matter is before the Court on Defendants Township of Freehold, Chief Ernest
Schriefer, and Lieutenant Dean Smith’s motion in limine to preclude any evidence or testimony
relating to excessive force that purportedly occurred while Plaintiff Barsoum S. Israel was in
custody at the police station. Plaintiff opposes the motion, contending that the allegations arising
from the police station were pleaded in the original complaint. For the reasons discussed herein,
Defendants’ motion is granted.
I.
This case involves allegations of excessive force by Lt. Smith. On December 31, 2012,
Plaintiff filed his Original Complaint in this Court, asserting, among other things, federal civil
rights claims under 42 U.S.C.

§ 1983 for excessive force. (ECF No. 2). Most of the allegations in

the Complaint concern the facts surrounding the use of force by Lt. Smith when he stopped Mr.
Israel’s car for a traffic violation. In the Original Complaint, there is one paragraph about the use
of force at the police station. It reads:
As if such unnecessary and excessive force were not enough, at the police station,
Officer Smith would not so much as allow the elderly Mr. Israel to sit down.
Instead, Officer Smith increased Mr. Israel’s pain by ignoring Mr. Israel’s pleas
that he was in great distress, and by dragging Mr. Israel around.

(Id. at

¶ 32).

On March 29, 2014, Plaintiff moved to amend his Complaint, and to assert that Lt.

Smith used excessive force at the police station. (ECF No. 14). Specifically, in his Proposed
Amended Complaint, Plaintiff alleged the following:
At the police station, two other police office[r]s joined Officer Smith in battering
Mr. Israel; they shoved him violently against the wall, causing his head and his
body to collide with the wall several times, then forcibly removed Mr. Israel’s belt
and shoes.
(ECF No. 14-3 at

¶

36).

In a written opinion issued on October 7, 2014, Magistrate Judge

Goodman denied Plaintiff’s motion to amend, explaining:
This allegation is entirely new and apparently implicates individuals that are not
parties to this action. Plaintiff has given no reason why these additional facts were
not in the original Complaint or why they should be allowed to be added at this late
date. The Court therefore finds undue delay with regard to the motion to add these
facts, and this portion of Plaintiff’s request to amend his Complaint will therefore
also be denied.
(ECF No. 23 at 15).
On November 3, 2014, Plaintiff filed a notice of appeal directly with the Third Circuit,
challenging Magistrate Goodman’s decision. (ECF No. 26).

The Third Circuit summarily

dismissed the appeal for lack of appellate jurisdiction, since the magistrate’s decision was not first
appealed to the District Court. (ECF No. 36). Thereafter, Plaintiff did not appeal Magistrate
Goodman’s decision to this Court. As such, the Complaint was never amended.

The case

proceeded through discovery. During the preparation of a proposed form of the Final Pretrial
Order, Plaintiff re-asserted the Police station incident. Shortly afterward, Magistrate Goodman
signed the Order. In the “Plaintiff’s Contested Facts” section of the Final Pretrial Order, Plaintiff
intends to prove the following at trial:
Mr. Israel was taken from the bench, stripped of his jacket and shoes, shoved into
the brick wall opposite cell #1, and again beaten by Lt. Smith and two other officers,
before being placed in cell #1.

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(ECF No. 93, Final Pretrial Order, at

¶ 80). Defendants move to strike this paragraph as being

beyond the cause of action set forth in the complaint, and to bar any testimony relating to any
excessive force at the police station beyond being dragged by Lt. Smith.
II.
“Final pretrial orders are governed by Rule 16(e), which provides that a pretrial order ‘shall
control the subsequent course of the action unless modified by a subsequent order.” Johnson v.
City of Camden Police Dep’t,No. 96-5840, 1998 U.S. Dist. LEXIS 21385, at *14..15 (D.N.J. Dec.
31, 1998) (quoting Basista v. Weir, 340 F.2d 74, 85 (3d Cir. 1965)). As such, “numerous courts
have held that a final pretrial order supersedes the pleadings and that claims or defenses set forth
in the pleadings but omitted from the final pretrial order are not properly before the district court.”
Id. at *15. The purpose of pretrial orders is “to harness unwieldy litigation by simplifying the
dispute and narrowing the issues for trial.” Phoenix Canada Oil Co v. Texaco, Inc., 842 F.2d 1466,
1476 (3d Cir. 1988). “For this reason, pretrial orders bind the parties unless modified by the court
to prevent manifest injustice.” Id. “It is well established that departure from or adherence to the
pretrial order is a matter peculiarly within the discretion of the trial judge.” Beissel v. Pittsburgh
& L.E.R. Co., 801 F.2d 143, 150 (3d Cir. 1986).
“Courts ‘do not normally expect to see claims or defenses not contained in the pleadings
appearing for the first time in the pretrial order’ because ‘[sjuch a practice deprives one’s adversary
of fair notice, possibly discovery, and the opportunity for motion practice, and is subject to abuse
by those who employ a sporting theory ofjustice, and the laudable purpose of the Rule is to avoid
surprise, not foment it.” Bornstein v. Cty. of Monmouth, No. 11-5336, 2015 U.S. Dist. LEXIS
59183, at *27 (D.N.J. May 6,2015) (quoting In re AT&TSec. Litig., No. 00-5364, 2004 U.S. Dist.
LEXIS 28452, at *16 (D.N.J. Apr. 7, 2004)). “In the few instances where a party has sought to

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inject some new element into the case by way of the final pretrial order, courts have not blindly or
automatically applied the rule that final pretrial orders supersede the pleadings. Instead, courts
have carefully assessed the prejudice to the opposing party and, where prejudice exists, the newly
asserted claim or defense has been rejected despite its inclusion in the final pretrial order.” Id. at
*29 (citing Cont’l Ins. Co. v. Beecham, Inc., 836 F. Supp. 1027, 1045 n. 10 (D.N.J. 1993)).
III.
Flere, Defendants contend that testimony relating to excessive force arising from the police
station must be barred, since Magistrate Goodman already prohibited the amendment to the
complaint. (ECF No. 23). Plaintiff responds that Paragraph 80 of the Final Pretrial Order is
consistent with the Original Complaint and simply clarifies his original allegation that Mr. Israel
was “dragged” in the station. (P1’s Brief in Opp. at 6). Alternatively, Plaintiff claims that “manifest
injustice” would occur if such claims were precluded. The Court disagrees.
First, when comparing Paragraph 32 of the Original Complaint with Paragraph 80 of
Plaintiffs Contested Facts, the paragraphs are different, and Paragraph 80 is not merely a
clarification. Rather, Paragraph 80 presents a wholly new allegation of excessive force that was
expressly barred in Magistrate Goodman’s order.
Second, Plaintiff’s “manifest injustice” argument is without merit. Being that Plaintiff is
the one who inserted wholly new factual allegations in the Final Pretrial Order, the Court considers
the prejudice to Defendants, as the opposing party. See Bornstein, 2015 U.S. Dist. LEXIS 59183,
at *29. Here, Magistrate Goodman found the motion to amend the complaint was filed 18 months
after the Original Complaint was brought, and it concerned two other officers, so she denied the
motion as untimely. Plaintiff then filed the appeal with the wrong court. So Plaintiff, on the eve

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of trial,’ seeks that I allow this evidence in, because it is referred to in the Original Complaint. I
am reluctant to permit Plaintiff, at the eleventh hour, to add a new theory of liability, especially,
when Magistrate Judge Goodman previously ruled on the issue and discovery was completed based
on that denial. See, e.g., Bornstein, 201 5 U.S. Dist. LEXIS 591 83, at *29; see also Cont ‘1 Ins. Co.,
836 F. Supp. at 1045 n.l0. For these reasons, Defendants’ motion is granted.

R
PETER G. SHERIDAN, U.S.D.J.

‘The Court also notes that Plaintiff’s counsel has demonstrated a total lack of diligence in handling
this matter. On November 29, 2017, the Court issued its memorandum and order regarding
Defendants’ Motion for Summary Judgment and scheduled this case for trial on April 2, 2018.
(ECF No. 100). In the five months between the Court’s Order and the scheduled date for trial,
Plaintiff submitted no papers with the Court, never contacted chambers, and failed to appear for
oral argument on Defendants’ motions in limine. (ECF No. 102). Apparently, it was only after
Plaintiff contacted his attorney, regarding the upcoming trial, that Plaintiff’s counsel finally
appeared before the Court.
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