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SIBERT v. PHELAN

September 21, 1995

LLOYD SIBERT, Plaintiff,
v.
JOHN PHELAN, ET AL., Defendants.



The opinion of the court was delivered by: WALLS

 WALLS, District Judge

 This matter is before the Court on motion of defendants, Detective John M. Phelan, Detective John M. Contini, Angel Perales and Hector Garcia, for leave to file an Amended Answer and for Summary Judgment.

 STATEMENT OF FACTS

 On November 9, 1992, plaintiff Lloyd Sibert was arrested and charged with unlawful possession of narcotics, unlawful possession of a weapon and resisting arrest. Plaintiff alleges that during the arrest, while fleeing from the arresting officers, the defendants, Detective John M. Phelan, Detective John M. Contini, Angel Perales and Hector Garcia, injured him. Specifically, plaintiff contends that the defendants hit him with an unmarked police car which rendered him unconscious, and that defendant Perales struck the back of his legs with a flash light. Plaintiff further alleges that the defendants provided false statements in the police report, and that they threatened to break his legs if he said anything about the incident.

 The defendants maintain that plaintiff's injuries were sustained when he ran into a full 55 gallon garbage drum, and deny that they hit him with a car and that defendant Perales struck him with a flashlight.

 On October 26 and 27, 1993, plaintiff was tried in Passaic County Superior Court and convicted of illegally possessing narcotics and of illegally possessing a weapon. His conviction was affirmed by the New Jersey Superior Court, Appellate Division. At trial, plaintiff had sought to suppress evidence of the narcotics and the weapon obtained during his arrest as illegally obtained. The Court ruled that the evidence was admissible as the product of a search incident to a lawful arrest.

 Plaintiff filed the current action for injuries he sustained during his arrest on February 4, 1994 under 42 U.S.C. ยง 1983. On March 9, 1995, Magistrate Judge Pisano entered a discovery order compelling plaintiff to serve answers to interrogatories by April 15, 1995 and to appear for a deposition on April 17, 1995. During defendant's scheduled deposition of plaintiff, plaintiff discontinued the questioning prematurely and refused to answer any further questions. Also, plaintiff has not served answers to the defendants' interrogatories.

 Defendants now move for leave to amend their Answer and for Summary Judgment.

 DISCUSSION

 Defendants seek dismissal of plaintiff's suit on essentially two grounds. First, that the doctrines of claim and issue preclusion prevent this court from entertaining this action because the issues at stake either should have been, or were finally determined in plaintiff's criminal trial; and second, that plaintiff's failure to comply with the Court's Order compelling him to serve Answers to Interrogatories, as well as his failure to comply fully with defendants request to depose him require that this case be dismissed pursuant to Fed. R. Civ. P. 37(d). Because the Court holds that the essential issue in this case has already been litigated and grants defendants' motion for summary judgment, the Court need not address defendants' second argument for dismissal.

 Defendants did not include in their answer the defenses of claim or issue preclusion, and thus move to amend their complaint to include these defenses. Defendants move to dismiss on these grounds, presumably pursuant to Fed. R. Civ. P. 12(b), assuming that the motion to amend is granted, or alternatively move for summary judgment pursuant to Fed. R. Civ. P. 56. While technically a defendant should assert claim and issue preclusion as defenses in the Answer as a precursor to a motion to dismiss, Fed. R. Civ. P. 8(c), the Third Circuit does not follow this rule, and instead permits affirmative defenses to be raised for the first time in a motion to dismiss the complaint, Williams v. Murdoch, 330 F.2d 745 (3d Cir. 1964) or in a motion for summary judgment. Hartmann v. Time, Inc., 166 F.2d 127, 131 (3d Cir.), cert. denied, 334 U.S. 838, 92 L. Ed. 1763, 68 S. Ct. 1495 (1947). Thus this Court need not decide whether to grant defendants' motion to amend their complaint since the merits of their motion to dismiss, or alternatively the motion for summary judgment, may be decided with the Answer in its current form. The defendants' motion will be analyzed by the Court as a motion for summary judgment because the Court has examined the affidavits submitted as well as other supporting documentation.

 A. Summary Judgment Standard

 Summary judgment may be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corporation v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). An issue of material fact is 'genuine' "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Moreover, preclusion ...


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