FOSTER v. SIX FLAGS GREAT ADVENTURE LLC et al
MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 7/14/2015. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SIX FLAGS GREAT ADVENTURE LLC, :
CIVIL ACTION NO. 15-2535 (MLC)
MARK FOSTER brought this action on April 6, 2015, against the defendants:
(1) Six Flags Great Adventure LLC (“SFGA”); and (2) John Does 1–10 (“Doe
Defendants”), who are SFGA security guards. (See dkt. 1.) The Court ordered Mark
Foster to show cause why claims asserted pursuant to: (1) 25 C.F.R. § 11.404 and 42
U.S.C. § 1983 should not be dismissed with prejudice; and (2) state law should not be
dismissed without prejudice. (See dkt. 5.) The Court assumes that the parties are familiar
with the issues set forth in the Order to Show Cause and will not repeat them here.
SFGA’S COUNSEL asserts that this Court — even if lacking subject-matter
jurisdiction under 28 U.S.C. § 1331 — possesses subject-matter jurisdiction under 28
U.S.C. § 1332 (“Section 1332”) because Mark Foster is a New York citizen, SFGA is
deemed to be a citizen of Delaware and Texas, and:
It is clear from [Mark Foster’s] Complaint that the “John Doe” defendants
named therein are security guard[s] employed by [SFGA]. While I do not
state the precise residences or citizenships of individuals by name of the
“John Doe” defendant security guards suggested as parties in [Mark Foster’s]
Complaint herein because I respectfully submit that it would be inappropriate
for me to do so, I do hereby affirm that ALL of [SFGA’s] security personnel
who were involved with [Mark Foster] and the alleged incident at issue
herein are residents and citizens of the State of New Jersey. I hereby further
affirm that I have verified with my client that [SFGA] has NO security
guards or other security personnel who are residents or citizens of ANY State
other than New Jersey.
(Dkt. 6 at 2 (sentence numbers deleted).)
MARK FOSTER “concede[s] and withdraw[s] claims under: 1) subject matter
jurisdiction via 42 USC 1983; 2) false imprisonment via 25 CFR Section 11.404”, and
“assert[s] diversity jurisdiction under [Section 1332].” (See dkt. 9 at 1.)
THIS COURT will assume that there is subject-matter jurisdiction under Section
1332, unless discovery shows otherwise concerning the Doe Defendants. Cf. Abels v.
State Farm Fire & Cas. Co., 770 F.2d 26, 31–32 (3d Cir. 1985) (concluding “the Doe
allegations here are sufficient on their face to defeat diversity jurisdiction” because they
were asserted “[w]ith [a] degree of specificity”, and thus “we cannot say that the Doe
defendants are mere ‘phantoms’ who ‘live not and are accused of nothing’”). The parties
will be ordered to inform this Court in writing when the discovery process reveals the
identity, and the citizenship as of April 6, 2015, of each Doe Defendant. In addition,
Mark Foster will be directed to further amend his claims to add the actual names of the
Doe Defendants when they are revealed.
BUT Mark Foster has also submitted an improper proposed amended complaint.
He lists additional plaintiffs (“Additional Plaintiffs”), thereby placing an undue burden on
the judiciary and the Clerk of this Court by seeking relief under one civil-action number
and paying only one filing fee for separate claims that may require: (1) separate motion
practice; (2) separate discovery demands; (3) separate assessments of damages; (4) the
entry of separate judgments; (5) separate appeals from separate judgments; and (6) other
separate activity. (See dkt. 9-1 at 1 (listing “Shamar Foster”); id. at 2 (listing “Shahar
Foster”); id. (listing “Destinie Foster”); see also dkt. 10 at 1 (SFGA “object[ing]” to
amended complaint that “purports to add an entirely new plaintiff and new claims”).) See
Fed.R.Civ.P. 21. The proposed amended complaint — despite Mark Foster’s concession
that all federal claims are to be withdrawn — also alleges “violat[ions of] clearly
established and well settled federal and state constitutional rights”, and “deprivation of
rights and privileges secured . . . by the Constitution and laws of the United States.”
(See dkt. 9-1 at 4–5 (emphasis added).) The proposed amended complaint will not be
filed, and will be considered to be a nullity. See In re Thomas, 463 Fed.Appx. 101, 101
(3d Cir. 2012) (respondent asserting petitioner’s “amended complaint is a nullity because
he was not afforded leave to file the complaint”); Williams v. Bradshaw, 459 F.3d 846,
849 (8th Cir. 2006) (stating “complaint [at issue] amounts to a nullity” because it “was
without legal effect”); Hunt v. Lamb, 427 F.3d 725, 727 n.1 (10th Cir. 2005) (stating
“complaint was . . . a nullity” because court lacked jurisdiction).
MARK FOSTER — if indeed intending to prosecute this action in this Court —
must file an amended complaint that:
(1) names only one plaintiff in the caption — i.e., Mark Foster;
(2) asserts claims on behalf of Mark Foster only; and
(3) contains no references to federal law.
MARK FOSTER may file an amended complaint, in the manner directed by this
Court, without moving for leave to do so before the Magistrate Judge.
THIS COURT also will grant leave to each Additional Plaintiff to institute and
pay the requisite filing fee for a separate action in this Court, with the caveat that each
Additional Plaintiff must note in the civil cover sheet and the complaint supporting each
separate action that the claims are related to Mark Foster’s claims. Thus, if there are three
Additional Plaintiffs here — i.e., Shamar Foster, Shahar Foster, and Destinie Foster —
then three additional and separate actions must be brought. This Court does not intend to
substantively affect any claims at this juncture, and any separate action ultimately brought
by an Additional Plaintiff within the time to be allotted by this Court will be deemed a
continuation of the claims brought under the above-captioned civil-action number for the
purposes of the statute of limitations.
AFTER Mark Foster files an amended complaint and after each Additional
Plaintiff institutes a separate action, this Court will review the respective pleadings for
subject-matter jurisdiction and for compliance with the Federal Rules of Civil Procedure.
This Court may then administratively consolidate the separate actions. See Fed.R.Civ.P.
42(a); Bor. of Olyphant v. PPL Corp., 153 Fed.Appx. 80, 82 (3d Cir. 2005) (stating
“district court has broad discretion when determining whether consolidation is
appropriate”); Bradgate Assocs. v. Fellows, Read & Assocs., 999 F.2d 745, 750 (3d Cir.
1993) (stating consolidation may serve objectives of convenience and economy in
administration, and does not merge actions into single claim or change rights of parties).
FOR GOOD CAUSE APPEARING, this Court will issue an appropriate order
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: July 14, 2015
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