occurrence, ie. the plaintiff's alleged wrongful incarceration.
Similar to whether or not an amendment to add the "John Doe" defendants is permissible, the court must engage in the equivalent analysis concerning whether the defendants had actual notice of the claims asserted against them. As set forth above, the Third Circuit case, Lundy v. Adamar of New Jersey Inc., 34 F.3d 1173, 1182 (3d Cir. 1994) instructs that something more than mere notice of the existence of litigation is needed. In fact actual notice is required to add the newly named defendants. First, unlike Dr. Carlino in Lundy, defendants in this case did not even receive actual notice of the amended complaint within 120 days after filing of the original complaint. The original complaint was filed on August 5, 1993 and the proposed defendants first received notice of the motion to amend on April 11, 1995. This is more than sixteen months after the 120 period. December 3, 1993 would have been 120-days after filing of the original complaint.
Secondly, proposed defendants McHugh, Sampona, and Michalak were never even named in the original complaint and are entirely new to this action. I can find no justification to conclude that these defendants would have the slightest notice of a probable lawsuit pending against them. Unlike the "John Doe" defendants addressed earlier, the fictitious name procedure was not utilized even though the plaintiff was fully aware of this procedure.
Finally, the "mistake condition" as set forth in Rule 15(c)(3)
was not satisfied as to these defendants because there were no specific allegations made against them in the original complaint, nor is there any suggestion that but for a mistake the plaintiff sought to hold these individuals liable. The only "mistake" presented is the plaintiff's apparent failure to even name the defendants. This is not a case where the plaintiff simply misidentified or misspelled the defendants name. Rather this is a situation where the plaintiff did not even mention these defendants. Accordingly, I find no reason why these defendants should have known that the plaintiff intended to sue them directly. Therefore, I must conclude that under Fed. R. Civ. P. 15(c), the proposed new defendants, McHugh, Sampona and Michalak did not have notice of the action and would be prejudiced in maintaining a defense on the merits.
AMENDMENT FOR ALTERNATIVE THEORIES OF LIABILITY
Plaintiff's original complaint charged defendants with violation of 42 U.S.C. § 1983. After the trial date has come and gone, the plaintiff now seeks to amend his complaint to include entirely new causes of action based on common law theories of false imprisonment, assault and battery and negligence. Since relation back shall not be allowed for Petruzzi, Vines, Zindel, Arthur, Barbee, McHugh, Sampona and Michalak, the plaintiffs amended complaint in relation to these defendants is likewise time barred. Therefore, it is not necessary to determine whether the new alternative theories of liability will be permitted as to these defendants.
We will therefore only address the alternative theories of false imprisonment claims and negligence claims against defendants Pearson, Belcher, Warden Strang and Sheriff William Simon,
and the assault and battery claim against Pearson and Belcher. To the extent that the amended complaint seeks to hold the defendants liable for false imprisonment under § 1983, the county defendants do not object. However, with regard to the newly-asserted pendent claims, the defendants object.
The relation back of the alternative negligence claims against Strang, Simon, Pearson and Belcher and the assault battery claim against Belcher and Pearson is addressed by Fed. R. Civ. P 15(c)(2). The Rule states that "an amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. . ." In recent years, federal courts have analyzed the specific conduct of the opponent upon which the party relies to enforce his claim or defense and if it relates to the same general wrong or conduct complained of in the original pleading. Pendrell v. Chatham College, 386 F. Supp. 341 (W.D. Pa. 1974). In Martell v. Trilogy, Ltd., 872 F.2d 322 (9th Cir. 1989), the court stated that the original and proposed pleadings should be analyzed to determine whether they share common operative facts so as to insure that the defendants had fair notice of the transaction, occurrence or conduct that was called into question.
Thus, the major issue under Rule 15(c) is whether the original pleading gave the opposing party fair notice of the general fact situation involved in the amended pleading. If the amendment does not change the factual basis of the action but merely corrects or clarifies the allegations in the original complaint, the amendment will relate back to the original complaint. The fact that a particular allegation was not mentioned in the original pleading has been held to be unimportant where the original pleading gave the opposing party notice that a claim was being asserted against him in connection with a particular transaction. Banks v. St. Mary's Hospital & Medical Ctr., 558 F. Supp. 1334 (D.C. Co. 1983); Goodman v. Poland, 395 F. Supp. 660 (D.C. Md. 1975).
The alternative theories which the plaintiff wishes to add are all based on the same fact situation as that in the original complaint i.e., the wrongful arrest and incarceration of the plaintiff. In the original complaint, plaintiff alleged violations of his rights based on the irresponsible behavior of the Warden and his Correction Officers, and by the Sheriff and his subordinates, resulting in the wrongful arrest and incarceration. There is a sufficient nexus between the facts in the original complaint and the amended complaint to give fair notice to Strang and Simon that a claim was being asserted against them based on their conduct in relation to the wrongful arrest.
The amended complaint only served to clarify the allegations in the original complaint by asserting negligence in the training of their respective officers. As supervisors, Strang and Simon were aware that they were responsible for the actions and training of their officers and would thus have fair notice of the proposed claim of negligence. Similarly, the claims of intentional infliction of emotional distress, assault, battery and negligence against Pearson and Belcher arose out of the same conduct and transaction, namely the alleged illegal strip search. Therefore, Pearson and Belcher would also have fair notice of the proposed claims of negligence, intentional infliction of emotional distress, assault and battery, based on their knowledge of the events of March 8, 1992.
Based upon the record before me, the amended complaint against original "John Doe" defendants Vines, Zindel, Petruzzi, Arthur, and Barbee does not relate back to the date of the original complaint and is time barred pursuant to Rule 15(c). Accordingly, the alternative theories of liability against these defendants are denied.
The amended complaint asserting claims against Warden Strang, Pearson and Belcher related back to the original complaint. The amended additional claims of false imprisonment and negligence against Strang and Sheriff Simon and the claims of intentional infliction of emotional distress, assault, battery and negligence against Pearson and Belcher also relate back since the new claims arose out of the same conduct and transaction in the original complaint.
Lastly, the discovery rule is inapplicable to the newly named defendants McHugh, Sampona and Michalak, and therefore the statute of limitation has run. The proposed new defendants did not receive adequate notice within 120 days after filing of the original complaint and thus the claims do not relate back pursuant to Fed. R. Civ. P. 15(c). Therefore, the plaintiff's request to amend the original complaint to name these new defendants and to assert new causes of action against them shall be denied.
An appropriate Order follows.
JOEL B. ROSEN
U.S. MAGISTRATE JUDGE
This matter having been brought before the court upon the motion of Lorraine A. DiCintio, Esquire, attorney for the plaintiff, Juan Anthony Cruz, for leave pursuant to Fed. R. Civ. P. 15 to amend the complaint to add new causes of action against both "John Doe" defendants and against newly named defendants; and the court having considered the submissions of the parties; and the court having considered the oral argument conducted on the record on June 30, 1995; and for the reasons noted in the opinion entered on this date;
IT IS this 3d day of August, 1995 hereby
ORDERED that the plaintiff's motion to amend the complaint shall be DENIED IN PART and GRANTED IN PART; and
IT IS FURTHER ORDERED that the plaintiff's motion to amend the complaint to add "John Doe" defendant Warden Strang shall be GRANTED.
IT IS FURTHER ORDERED that the plaintiff's motion to add new causes of action against Warden Strang and Sheriff Simon based on claims of negligence and false imprisonment shall be GRANTED; and
IT IS FURTHER ORDERED that the plaintiff's motion to amend the complaint to add "John Doe" defendants Petruzzi, Vines, Zindel, Arthur and Barbee shall be DENIED; and
IT IS FURTHER ORDERED that the plaintiff's motion to amend the complaint to add new causes of action against "John Doe" defendants Petruzzi, Vines, Zindel, Arthur and Barbee shall be DENIED; and
IT IS FURTHER ORDERED that the plaintiff's motion to amend the complaint to add "John Doe" defendants Pearson and Belcher shall be GRANTED; and
IT IS FURTHER ORDERED that the plaintiff's motion to amend the complaint to add new causes of action against based on claims of intentional infliction of emotional distress, negligence, assault and battery against Pearson and Belcher shall be GRANTED; and
IT IS FURTHER ORDERED that the plaintiff's motion to amend the complaint to add entirely new defendants McHugh, Sampona, and Michalak shall be DENIED; and
IT IS FURTHER ORDERED that the plaintiff's motion to amend the complaint to add new causes of action against entirely new defendants McHugh, Sampona and Michalak shall be DENIED; and
IT IS FURTHER ORDERED that by August 18, 1995 the plaintiff shall file the amended complaint in accordance with the opinion and order entered on this date; and
IT IS FURTHER ORDERED that within fourteen (14) days from the date of service of the amended complaint, the defendant shall respond; and
IT IS FURTHER ORDERED that dispositive motions shall be filed pursuant to the General Rules for the District of New Jersey Rule 12N. The moving party shall send its notice of motion, brief, affidavits and other supporting documentation to the plaintiffs by September 18, 1995. The moving party shall send a copy of the cover letter only to the Clerk of the Court. The return date of the motion shall be specified as November 8, 1995. The non-moving party shall serve their opposition by October 6, 1995. The moving party shall then file the entire briefing packet, and a reply, if any, with the court by October 13, 1995.
IT IS FURTHER ORDERED that this court shall conduct a status conference to be held on Friday, September 15, 1995 at 11:30 a.m. at the Mitchell H. Cohen Courthouse located in Camden, New Jersey; and
IT IS FURTHER ORDERED that by Friday, September 13, 1995 both parties shall submit to each other and the court a list of any and all outstanding discovery issues as well as a list of any and all further discovery that is needed.
JOEL B. ROSEN
United States Magistrate Judge