VITELLO v. HUISMAN et al
Filing
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OPINION filed. Signed by Judge Joel A. Pisano on 11/13/2014. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DARIAN VITELLO,
Plaintiff,
v.
CAPTAIN ANDREW HUISMAN, ANDREW
SCHWEERS, and JOHN DOES 1-10,
Defendants.
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Civil Action No. 13-3884
OPINION
PISANO, District Judge
Plaintiff Darian Vitello (“Plaintiff” or “Vitello”) has moved this Court to amend his
original Complaint pursuant to Federal Rule of Civil Procedure 15(a), and thereby disturb the
prior judgment entered by this Court, pursuant to Federal Rule of Civil Procedure 59(a).
Defendants Captain Andrew Huisman and Andrew Schweers (together, the “Defendants”)
oppose this motion. The Court decides these matters without oral argument pursuant to Federal
Rule of Civil Procedure 78. For the reasons set forth below, the Court denies Plaintiff’s motion.
I.
Background
On March 18, 2014, the Court granted Defendants’ motion to dismiss the complaint. See
Op. on Mot. to Dismiss, ECF No. 21. The relevant facts of this case are fully set forth in that
Opinion, and are repeated here only to the extent that they are pertinent. In sum, the Court
dismissed Plaintiff’s complaint with prejudice, holding that Plaintiff’s claims were untimely.
The Court found that the statute of limitations on Plaintiff’s claims began to run no later than
October 1, 2009; consequently, Plaintiff’s claims under 42 U.S.C. § 1983 and the New Jersey
Civil Rights Act (“NJCRA”) should have been filed no later than October 1, 2011. Accordingly,
because Plaintiff failed to bring these claims until June 24, 2013, his claims were time-barred.
The Court also found that the discovery rule did not delay the accrual of Plaintiff’s claims
because he was aware of his legal injury in 2009. Further, the Court determined that the
continuing violation doctrine did not apply, primarily because Plaintiff had alleged two discrete
events that had a certain “degree of permanence” to them that should have triggered Plaintiff’s
awareness of his rights. Finally, the Court determined that there was no justification to apply the
doctrine of equitable tolling.
On April 18, 2014, Plaintiff filed the current motion. Plaintiff submits that the Court
should grant Plaintiff leave to file an amended complaint, in light of new evidence that recently
came to light. In connection with his request, Plaintiff has submitted a proposed Amended
Complaint, which purportedly includes factual allegations that trigger the continuing violation
doctrine and the doctrine of equitable tolling. To that regard, Plaintiff asserts that, because
amendment of his Complaint is not futile, the Court should reopen this case and allow Plaintiff to
file an amended complaint. Defendants oppose this motion, arguing that such amendment is
futile.
II.
Standard of Review
After a judgment is entered granting a Rule 12(b)(6) motion to dismiss, “a party may seek
to amend the complaint (and therefore disturb the judgment) only through [Rules] 59(e) and
60(b).” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 230 (3d Cir. 2011) (quoting FletcherHarlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir. 2007)). Such a
motion to alter or amend the judgment must be filed “no later than 28 days after the entry of the
judgment.” Fed. R. Civ. P. 59(e). The determination of whether a party may amend a judgment
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or be given leave to amend a complaint is within the sound discretion of the court. See Cureton
v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 272 (3d Cir. 2001).
A motion for reconsideration under Rule 59(e) generally must rely on one of the
following grounds: “(1) an intervening change in controlling law; (2) the availability of new
evidence; or (3) the need to correct clear error of law or prevent manifest justice.” Lazaridis v.
Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (citation omitted). The Third Circuit has determined
that, “where a timely motion to amend judgment is filed under Rule 59(e), the Rule 15 and 59
inquiries turn on the same factors.” Burtch, 662 F.3d at 230–31 (quoting In re Adams Golf, Inc.
Sec. Litig., 381 F.3d 267, 280 (3d Cir. 2004)) (internal quotation omitted). Factors to consider
under Rule 15(a) include “undue delay, bad faith, or futility.” Id. at 231 (quoting Adams Golf,
381 F.3d at 280).
With regards to the first factor, delay alone is insufficient to deny a motion to amend.
See Cureton, 252 F.3d at 273. However, “at some point, the delay will become ‘undue,’ placing
an unwarranted burden on the court, or will become ‘prejudicial,’ placing an unfair burden on the
opposing party.” Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984). Next, a showing of
bad faith requires a showing of prejudice to the non-moving party. See CMR D.N. Corp. v. City
of Philadelphia, 703 F.3d 612, 629 (3d Cir. 2013). Courts should consider “whether allowing an
amendment would result in additional discovery, cost, and preparation to defend against new
facts or new theories.” Cureton, 252 F.3d at 273. Finally, futility “means that the complaint, as
amended, would fail to state a claim upon which relief could be granted. Futility of an amended
complaint is reviewed under the same standard of legal sufficiency as applies under [Rule]
12(b)(6).” Burtch, 662 F.3d at 231 (internal citations and quotations omitted).
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When resolving Rule 59(e) and Rule 15(a) motions, the Third Circuit has determined that
“the appropriate manner to dispose of this issue is to consider the motions together and
determine what outcome is permitted by consideration of the Rule 15(a) factors.” Id. However,
“‘the liberality of [Rule 15(a)] is no longer applicable once judgment has been entered’ because
Rule 15(a) and 59(e) should not be employed in a manner contrary to ‘favoring finality of
judgments and the expeditious termination of litigation . . . that would render those provisions
meaningless.’” Id. (quoting Ahmed v. Dragovich, 297 F.3d 201, 208 (3d Cir. 2002)).
III.
Discussion
Plaintiff requests leave to amend his Complaint after a final judgment has been entered
pursuant to Rules 59(e) and 15(a), arguing that his proposed Amended Complaint shows
sufficient new evidence to “trigger[] the continuing violations doctrine and the doctrine of
equitable tolling.” Pl.’s Br. at 6. First, the Court finds that Plaintiff has not engaged in undue
delay or bad faith, particularly because Defendants have offered no objections to Plaintiff’s
proposed amendment on these grounds. Rather, the Court’s analysis focuses on whether or not
the proposed Amended Complaint is futile, meaning that “the complaint, as amended, would fail
to state a claim upon which relief could be granted.” Great Western Mining & Mineral Co. v.
Fox Rothschild LLP, 615 F.3d 159, 173 (3d Cir. 2010) (quoting In re Merck & Co. Sec.,
Derivative, & ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007)).
In his Amended Complaint Plaintiff seeks to join Borough of Belmar Police Chief Tom
Palmisano, the Borough of Belmar, and Robert Honecker, Plaintiff’s former attorney, as named
defendants. Plaintiff also seeks to add several factual allegations. The core these factual
allegations pertains to the issuance of criminal charges against Defendant Huisman and Chief
Palmisano on March 18, 2014, by the Honorable Joseph DeFino, J.M.C., of the Municipal Court
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of Wall Township. Judge DeFino found probable cause to believe that Defendant Huisman
pressured Luis Abreu, Plaintiff’s accuser, to provide false statements, knowing they were not
truthful and accurate, with the intent of depriving Plaintiff of benefit, and then presented these
statements to the Monmouth County Grand Jury knowing the statements were false, in violation
of N.J. Stat. Ann. § 2C:30-2A. He also found probable cause to charge Chief Palmisano with
perjury, on the basis of his testimony at a weapons forfeiture hearing following Plaintiff’s
conviction. Plaintiff has also added factual allegations to his Amended Complaint pertaining to a
determination by the State of New Jersey Government Records Council from October 2013, in
which the Government Records Council determined that the Borough of Belmar had violated
New Jersey’s Open Public Records Act (“OPRA”) by withholding internal affairs files from
Plaintiff and delaying access without adequate justification. The Government Records Council
issued an Interim Order on October 29, 2013, directing the Borough of Belmar to produce certain
internal affairs files within five business days. Plaintiff alleges that the Borough of Belmar
submitted an untimely response on January 16, 2014. Finally, Plaintiff has alleged that an
anonymous person delivered a document to Plaintiff’s PCR counsel that was previously missing.
Plaintiff alleges that this document, dated February 2, 2005, was signed by then-Lieutenant
Thomas Palmisano. Plaintiff argues that this confirms that the Belmar Police Department
Internal Affairs Division and the Monmouth County Prosecutor’s Office had previously absolved
Plaintiff of guilt. Overall, Plaintiff asserts that “[w]hile the alleged harms giving rise to Mr.
Vitello’s cause of action may not have changed, more facts that support the doctrines of
equitable tolling and continuing violations have come to light.” Pl.’s Reply Br. at 3.
On June 12, 2014, this Court granted Defendants’ request to file a sur-reply, in light of
newly discovered evidence relating to the criminal complaint that Plaintiff had filed against
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Defendants Huisman and Chief Palmisano. Specifically, a probable cause hearing was held in
the Superior Court of New Jersey, Law Division, Monmouth County before the Honorable
Joseph W. Oxley, J.S.C., on the criminal complaints signed by Judge DeFino. During a two-day
hearing, on May 20, 2014, and May 29, 2014, Detective Ryu Washurne of the Monmouth
County Prosecutor’s Office testified as to the investigation he conducted based upon Plaintiff’s
allegations regarding Defendant Huisman and Chief Palmisano. Based upon that investigation,
he found no evidence supporting any of the accusation alleged by Plaintiff against Defendant
Huisman; in fact, during the hearing before Judge Oxley a video interview of Mr. Abreu by the
Monmouth Country Prosecutor was played, wherein Mr. Abreu stated he was blackmailed by
Plaintiff into making false statements regarding Defendant Huisman under threat of a secret
recording made by Plaintiff being transmitted to Mr. Abreu’s current employer. In addition,
testimony provided by Detective Washburne raised questions as to the authenticity of the
February 2, 2005 letter that was purported to have been signed by Chief Palmisano. Based upon
the two-day hearing, on May 30, 2014, Judge Oxley, after having heard oral argument from
personal counsel of the aforementioned individuals and reviewing the evidence, found that there
was no probable cause for Defendant Huisman “to be bound over on the pending complaint
against him” and signed an Order to that effect dated June 3, 2014. See Defs.’ Sur-Reply Ex. 2.
In light of this finding by Judge Oxley, this Court will not consider Plaintiff’s factual allegations
relating to any criminal complaint signed by Judge DeFino in determining this motion to amend.
Reviewing Plaintiff’s remaining allegations in his proposed Amended Complaint, the
Court cannot agree with Plaintiff that it will be a “miscarriage of justice to prohibit Mr. Vitello
from amending his complaint . . . to strengthen his claims.” Pl.’s Reply Br. at 3. Rather, the
Court is unpersuaded that these new factual allegations work to toll the statute of limitations.
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Plaintiff’s claims are based upon an alleged conspiracy to deprive him of his employment
relationship with the Borough of Belmar, culminating in his entry of a guilty plea conditioned
upon Plaintiff’s forfeiture of his position as a police officer. As this Court has held, the
continuing violation theory does not apply because Plaintiff’s guilty plea “had a degree of
permanence which should trigger the plaintiff’s awareness of and duty to assert his/her rights.”
Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001). There is nothing in Plaintiff’s factual
allegations that changes this determination. The Court also finds that Plaintiff’s factual
allegations fail to justify the extraordinary application of equitable tolling. Plaintiff’s argument
that it would be a miscarriage of justice to prohibit him from amending his complaint, see Pl.’s
Opp. Br at 2–3, is severely undercut by Judge Oxley’s finding of no probable cause for
Defendant Huisman to be bound over on the complaint that had been brought against him.
Needless to say, the resulting evidence from the two-day hearing casts a long shadow over
Plaintiff’s allegations here, particularly as it relates to the apparent blackmailing of Mr. Abreu by
Plaintiff and the questioned authenticity of the February 2, 2005 letter. Plaintiff’s remaining
factual allegations, pertaining to certain OPRA requests, fall short of establishing that Plaintiff
was “induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass,”
or that Plaintiff has “in some extraordinary way been prevented from asserting his rights.”
Freeman v. State, 347 N.J. Super. 11, 31 (App. Div. 2002) (quotations and citations omitted).
Therefore, despite Plaintiff’s arguments to the contrary, the Court finds that the Amended
Complaint fails to allege sufficient facts to support the application of either the doctrine of
equitable tolling or the continuing violation doctrine. Accordingly, because amendment of
Plaintiff’s complaint would be futile, Plaintiff’s motion to alter or amend the judgment under
Rules 59(e) and 15(a) is denied.
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IV.
Conclusion
For the reasons stated above, Plaintiff’s motion to alter or amend the judgment is denied.
An appropriate Order accompanies this Opinion.
/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.
Dated: November 13, 2014
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