Clarkson S. Fisher, Jr., J.s.c.
The opinion of the court was delivered by: Fisher
CLARKSON S. FISHER, JR., J.S.C.
Plaintiff, Alexander J. Mustilli, moved for leave to amend his complaint to include a claim for damages based upon an alleged marital tort. This motion was filed on August 23, 1995 with a return date of September 29, 1995. Because the trial was set for September 21, 1995, the motion was scheduled to be heard on the trial date. A settlement conference was held at that time and the parties left the Courthouse having indicated to the court that the case was likely to settle. With that, the motion was placed in abeyance. A few days later plaintiff's counsel advised that the matter had not settled. The motion was relisted for argument. The following constitutes the court's decision.
The complaint was filed on December 20, 1994. It alleged, as an act of extreme cruelty, that:
On or about 4 February 1993, defendant advised plaintiff that he had to take certain pills which he understood were to protect from a sexually transmitted disease. When plaintiff protested that it was not necessary since he had not had sexual relations with anyone other than defendant, defendant informed him that she had been diagnosed with vaginitis trichomonas which she insisted she had gotten from him, but which under the circumstances, caused plaintiff to question her faithfulness to their marriage.
Other acts of extreme cruelty were alleged, but the complaint did not contain a claim for compensatory or punitive damages. Now, more than two years after these alleged events, plaintiff seeks leave to file an amended complaint which repeats the cited allegations of the complaint but now seeks compensatory and punitive damages allegedly caused by the same events.
Defendant opposes this motion on a number of grounds. She primarily argues that this newly asserted claim is time-barred. In response, plaintiff argues that leave to file an amended pleading should be freely given in the interest of Justice. That is generally true, see, R. 4:9-1; City Check Cashing v. Nat. St. Bk., 244 N.J. Super. 304, 308-309, 582 A.2d 809 (App. Div. 1990), but it is also true that courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. In other words, there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted. See, e.g., Massarsky v. General Motors Corp., 706 F. 2d 111 (3d Cir. 1983); Molnar v. Hedden, 260 N.J. Super. 133, 146, 615 A.2d 647 (App. Div. 1992), rev'd on other grounds 138 N.J. 96, 649 A.2d 71 (1994); City Check, supra, 244 N.J. Super. at 309; Maxim Sewerage v. Monmouth Ridings, 273 N.J. Super. 84, 90, 640 A.2d 1216 (Law Div. 1993). In seeking to avoid the statute of limitations, plaintiff observes that the pending action was filed prior to the expiration of the two-year statute of limitations (which is applicable here, see, Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979)), to which the amendment, plaintiff further says, "relates back," alluding to R. 4:9-3.
Preliminarily, it is important to observe that there is no claim of "psychological paralysis," i.e., the inability of the victim of the alleged tort to seek redress as discussed in State v. Kelly, 97 N.J. 178, 194-195, 478 A.2d 364 (1984) or, more recently, in Giovine v. Giovine, 284 N.J. Super. 3, 663 A.2d 109 (App.Div. 1995). *fn2 Despite the thrust of recent family law decisions which suggest that gender is not a relevant consideration, see, e.g., Lepis v. Lepis, 83 N.J. 139, 155, 416 A.2d 45 (1980); Innes v. Innes, 117 N.J. 496, 507-508, 569 A.2d 770 (1990); but see, Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (1988) (which suggests that the "tender years" doctrine is alive and well in New Jersey), it appears that the "psychological paralysis" argument referred to in Giovine is an argument that may only be made by a woman. While this may be incongruous in a society so earnestly seeking to free itself of gender bias, that the movant is a male is a basis for rejecting out-of-hand any such argument by him in this case. Giovine, supra. But, in any event, a complaint was filed and alleged the February 1993 circumstances as an act of extreme cruelty, all of which belies any conceivable contention that the alleged victim of this occurrence was psychologically unable to seek redress. Plaintiff filed his complaint and made his allegations, he simply elected not to ask for compensatory or punitive damages based on those allegations.
Having said all that, the court must return to the primary issue: should this proposed amendment "relate back" to the original filing date? If it does not "relate back," then the claim is barred by the statute of limitations and the amendment should be refused.
The Court in Harr v. Allstate Insurance Co., 54 N.J. 287, 299-300, 255 A.2d 208 (1969) stated that R. 4:9-3 "should be liberally construed":
Its thrust is directed not toward technical pleading niceties, but rather to the underlying conduct, transaction or occurrence giving rise to some right of action or defense. When a period of limitation has expired, it is only a distinctly new or different claim or defense that is barred. Where the amendment constitutes the same matter more fully or differently laid, or the gist of the action or the basic subject of the controversy remains the same, it should be readily allowed and the doctrine of relation back applied... It should make no difference whether the original pleading sounded in tort, contract or equity, or whether the proposed amendment related to the original or a different basis of action. [emphasis added].
In order to determine whether a particular amendment will "relate back," the new claim should be contrasted with those which were previously pleaded. Context is all-important in this analysis.
Certainly, it is a different thing to say that an amendment will relate back when a plaintiff seeks to amend his or her negligence complaint to add a new theory or cause of action, based on essentially the same facts, sounding in, for example, products liability or contract or some equity theory. That is because the relief sought is essentially the same: damages. See, e.g., Cockinos v. GAF Corp., 259 N.J. Super. 204, 611 A.2d 1154 (Law Div. 1992). If the parties remain the same, or at least if there is a community of interest between the original and new parties, Wimmer v. Coombs, 198 N.J. Super. 184, 486 A.2d 916 (App. Div. 1985); Bussell v. DeWalt Products Corporation, 259 ...