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December 22, 2000


The opinion of the court was delivered by: Greenaway, District Judge.


This matter comes before the Court on the motions of defendants Lawrence Cimmino, Florence J. Lotrowski, and the County of Middlesex, New Jersey (collectively, "Defendants" or the "Middlesex defendants") for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c), and Plaintiffs' motion to amend the Complaint.*fn1 Plaintiffs instituted this action, pursuant to 42 U.S.C. § 1983, alleging that the Middlesex defendants deprived Plaintiffs of their constitutional rights.*fn2 After submitting opposition to Defendants' motions, Plaintiffs sought leave to file an Amended Complaint, which adds additional claims against Defendants, and seeks to add additional parties. For the reasons discussed below, Plaintiffs' motion is granted in part, and defendants' motions for judgment on the pleadings are granted.


Plaintiff Computers & Electronics Warehouse, Inc. ("CEW") is a New Jersey corporation with its principal place of business in the Forrestal Village in Princeton, New Jersey. (Compl. ¶ 4.) Since July of 1996, CEW has operated a retail store in the Forrestal Village that sells consumer electronic products. (Compl. ¶¶ 10-11.) At the Forrestal Village location, CEW maintains a "Technical Service and Upgrade Center" to provide technical support for customers' computers. (Compl. ¶ 13.) Each week, CEW closes early on Friday afternoons and all day on Saturdays for observance of the Jewish Sabbath. (Compl. ¶ 12.) CEW also closes on all Jewish holidays on the Orthodox Jewish calendar. (Id.) Plaintiff Yaniv Hassoun is a shareholder, officer, director, and employee of CEW. (Compl. ¶ 5.)

At an unspecified point in time, certain employees of Middlesex County convened a meeting with CEW employees at the offices of the Middlesex County Office of Consumer Affairs ("OCA"). (Compl. ¶ 16.)*fn4 The meeting was called to discuss consumer service "issues." (Id.) Defendant Florence J. Lotrowski, Deputy County Counsel of Middlesex County, represented OCA at the meeting. CEW was represented by Terrence Oved, a non-practicing attorney. (Id.)

At this meeting, Lotrowski repeatedly asked Oved about the religious orientation of CEW's owners. (Id.) When Oved inquired as to why Lotrowski posed these questions, Lotrowski continued to press Oved for a response. (Id.) Following the meeting, Lotrowski telephoned CEW on several occasions, "under false pretenses," to inquire further about the identity of CEW's owners. (Compl. ¶ 17.) On three occasions, she misidentified herself to Oved. (Id.) Oved informed Lotrowski that he would not provide information concerning CEW's proprietors absent a valid justification for such inquiries, and asked Lotrowski to stop telephoning CEW. (Id.)

Approximately thirty days after these telephone calls, OCA filed civil complaints in Plainsboro Municipal Court alleging that Plaintiffs here, CEW and Hassoun, violated several New Jersey consumer protection statutes and regulations. (Compl. ¶¶ 20, 22.)*fn5 Among the charges levied against CEW and Hassoun were misleading representations, unconscionable commercial practices, and advertising without intent to sell. (Compl. ¶ 22.) OCA based its complaints on information it had received from "individuals," including representatives of manufacturers with which CEW conducted business. (Compl. ¶ 22, 24.) Prior to instituting these actions, OCA did not interview Hassoun or attempt to discern whether products that were the subject of complaints had been actually purchased at CEW. (Compl. ¶ 23.)

Plaintiffs contend that in connection with these proceedings, OCA issued false, incomplete, and misleading information regarding CEW to the public, to manufacturers whose products CEW sold, and to financial institutions that extended credit to CEW. (Compl. ¶ 28.) Specifically, Plaintiffs state that OCA advised third parties that "hundreds" of complaints had been filed against CEW, that a proposed class action against CEW was underway, and that CEW was the "worst offender" ever known to OCA. (Compl. ¶ 29.) Furthermore, Plaintiffs contend that OCA proceeded with the consumer fraud actions despite knowing that the underlying complaints were false, and that OCA concealed the fact that all of the proceedings had been resolved in Plaintiffs' favor from third parties inquiring about CEW. (Compl. ¶¶ 27, 29.)

The Amended Complaint repeats the allegations of the original Complaint and proposes to add as defendants the Township of Plainsboro, New Jersey, Plainsboro Police Officer Judith Henderson, and Plainsboro Police Chief and Public Safety Director David Lyon (collectively, the "Plainsboro defendants"). As set forth more fully below, the Amended Complaint relays three incidents that transpired between the Plainsboro police and CEW following Plaintiffs' institution of this action, including one incident in which Plaintiffs contend that the Plainsboro defendants worked together with the Middlesex defendants allegedly to harass CEW.

Plaintiffs state that on November 2, 1999, a customer visited the CEW store in Plainsboro, New Jersey, and attempted to return merchandise purchased several months earlier. Upon being informed that CEW policy only permits returns through seven days after purchase, the customer called the Plainsboro Police Department. (Am.Compl. ¶ 36.)

Defendant Judith Henderson, a Plainsboro police officer, responded to the call. (Am.Compl. ¶ 37.) CEW had previously filed an Internal Affairs complaint against Henderson in connection with her conduct and her harassment of CEW employees. (Am.Compl. ¶ 40.) Henderson questioned the customer in the center of the sales floor. (Am.Compl. ¶ 37.) The manager on duty asked Henderson to interview the customer in a less trafficked area of the store. Henderson refused. (Id.) Although store employees advised Henderson that the dispute was a civil matter and that no criminal conduct was involved, Henderson persisted in questioning the customer. (Id.)

Henderson then ordered the manager to step outside. Once outside, without provocation, Henderson sprayed the manager's eyes, face, and mouth with pepper spray. Other Plainsboro police officers who had responded to the scene tackled the manager and knocked him to the ground. When other CEW employees urged the officers to give the manager water to help him breathe, Henderson and the other officers threatened to arrest anyone who intervened. The manager was then arrested and taken to the Plainsboro police station. (Am.Compl. ¶ 38.) At the station, officers taunted the manager and denied him medical assistance. (Am.Compl. ¶ 39.) Before the manager was transferred to the jail, Henderson handed her business card to the manager, laughing that he and the store might want to file another complaint against her. (Am.Compl. ¶ 40.)

Minutes later, twelve to fourteen Plainsboro police officers arrived, surrounding the store with at least six police vehicles.*fn6 (Am.Compl. ¶ 45.) The officers entered the store and threatened to arrest any employee who refused to allow the inspectors to proceed as they had requested. (Am. Compl. ¶ 45, 47.) While in the store, the Plainsboro police officers blocked the entrances, threatened employees, frightened and intimidated customers, and turned away stock shipments arriving from suppliers. (Am.Compl. ¶ 46.)

CEW employees were forced to open sealed boxes of computer products. (Am. Compl ¶ 47.) The police officers and OCA inspectors taunted CEW employees, daring them to attempt to sell the unsealed goods as new. (Am.Compl. ¶ 48.) Although the incident lasted several hours and numerous police officers were present, no police report was generated concerning the incident. (Am. Compl. ¶ 49, 50.)

Many months later, on May 23, 2000, a customer arrived at the Plainsboro CEW store seeking to return an item, claiming that he had purchased it at CEW a week earlier. CEW employees inspected the product and determined that it was missing certain serial numbers that would indicate whether the item had been purchased at CEW. When the manager refused to accept the item for return and informed the customer that he suspected fraud, the customer showed a store employee a Plainsboro Police Department business card, stated that he was "friends" with the Plainsboro Police, and suggested that the store do what he asked. The manager refused. (Am.Compl. ¶ 51, 52.)

The customer left the store and returned less than a half hour later with two Plainsboro police officers, while a third officer waited outside. The officers demanded that the store accept the item "for exchange." When the employees refused, the officers demanded that they be permitted to compare the customer's item with a new item. The CEW employees felt compelled to comply. (Am. Compl. ¶ 53.) Upon inspection, it became apparent that the item sought to be returned had been tampered with, and the officers did not pursue the matter further. (Am. Compl. ¶ 54.) As the police were departing, CEW employees requested a copy of the police report. They were told that there would be no report. When the employees queried about filing fraud charges against the customer, the police scoffed and left the store. (Id.)

I. Governing Standards

A. Motion to Amend

After opposing Defendants' motions for judgment on the pleadings, Plaintiffs filed the present motion seeking leave to amend the complaint, pursuant to Federal Rule of Civil Procedure 15(a). The proposed Amended Complaint leaves intact all of Plaintiffs' original allegations against the Middlesex defendants and seeks to add a federal claim of "discrimination under color of law" (Count Five), and claims under state law for conspiracy (Count Six) and intentional infliction of emotional distress (Count Nine) against them. The proposed Amended Complaint also sets forth a § 1983 claim and state law claims for conspiracy and intentional infliction of emotional distress against the Plainsboro defendants.

Although similar, the standards governing the two subsections of Rule 15 are not identical. Therefore, this Court will treat Plaintiffs' proposed allegations related to events that preceded the filing of the initial complaint — proposed Count Five, ¶ 76(a) of proposed Count Six, and proposed Count Nine, insofar as it concerns the Middlesex defendants — as a motion to amend under Rule 15(a). Plaintiffs' proposed allegations concerning the Plainsboro defendants (and any alleged conspiracy among Plainsboro defendants and Middlesex defendants subsequent to the filing of this action in December 1998) will be evaluated under the standards governing proposed supplemental pleadings under Rule 15(d).

Federal Rule of Civil Procedure 15(a) instructs that leave to amend "shall be freely given when justice so requires." The Middlesex defendants contend, however, that amendment would be futile in this case because Plaintiffs' proposed amendments fail to state a claim or are made in bad faith. In assessing Defendants' argument that the proposed amendments would be futile, the Court applies the same standard of legal sufficiency as it would under Rule 12(b)(6) or 12(c). See In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997) ("`Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted."). [The Court will therefore grant the amendment, and shall consider below whether Plaintiffs have stated a claim on the original and new counts against the Middlesex defendants.]

Although Rule 15(d) does not include the same express mandate as Rule 15(a), courts construe it to require a similarly liberal approach. See Thomas v. Ford Motor Co., 111 F. Supp.2d 529, 532 (N.J. 2000). But see Nanavati v. Burdette Tomlin Memorial Hosp., 645 F. Supp. 1217, 1247 (N.J. 1986) (noting that Rule 15(d) "does not so freely permit the amendment [of] pleadings" as does Rule 15(a)). Rule 15(d) serves judicial economy, avoids multiplicity of litigation, and promotes "as complete an adjudication of the dispute between the parties as possible by allowing the addition of claims which arise after the initial pleadings are filed." Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1118, 1134 (N.J. 1991) (citations omitted); see also Planned Parenthood of Southern Arizona v. Neely, 130 F.3d 400, 402 (9th Cir. 1997); 6A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 1506 (2d ed. 1990).

The decision of whether to permit a supplemental pleading is within this Court's discretion. See Owens-Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185, 1188-89 (3d Cir. 1979); see also Burns v. Exxon Corp., 158 F.3d 336, 344 (5th Cir. 1998) (holding that district court did not abuse its discretion in denying leave to file supplemental complaint). Leave to file a supplemental complaint should be freely permitted in the absence of undue delay, bad faith, dilatory tactics, undue prejudice to defendants, or futility, and when the supplemental facts are connected to the original pleading. Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995).

B. Federal Rule of Civil Procedure 12(c)

As Defendants have answered the Complaint, they properly have brought their motions to dismiss as motions for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). Motions to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), must be made before further pleading if further pleading is permitted; that is, they must be brought before, and in lieu of, filing Answers. By contrast, a Rule 12(c) motion may be made "[a]fter the pleadings are closed but within such time as not to delay the trial. . . ." Fed.R.Civ.P. 12(c). A ...

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