United States District Court, D. New Jersey
April 11, 2005.
Nilda GUTIERREZ, Linda MORGAN, Wayne BROWN and Krista MARSHALL, Plaintiffs,
JOHNSON & JOHNSON, Defendant.
The opinion of the court was delivered by: WILLIAM H. WALLS, District Judge
Defendant Johnson & Johnson ("J&J") appeals Special Master
Politan's ("Judge Politan") December 8, 2004 decision granting
plaintiffs leave to amend their complaint to extend the proposed
class period back two years to November 15, 1997. The Court heard
oral arguments on this appeal on April 11, 2005. Defendant's
motion is denied.
Facts and Procedural History
Plaintiffs filed this class action in November 2001, seeking to
certify a class of approximately 8,000 current and former
African-American and Hispanic employees of J&J who allegedly
suffered discrimination in compensation and promotion. The
original putative class was defined as:
all persons of African and/or Hispanic descent
employed by Defendant J&J in permanent salaried
positions (exempt and non-exempt) in the United
States at any time from November 15, 1999[.] In August 2004, plaintiffs sought leave to amend their
complaint. Among other things, plaintiffs sought to expand the
putative class period by two years to begin from November 15,
1997 for all its 42 U.S.C. § 1981 claims based on the Supreme
Court's decision in Jones v. R.R. Donnelley & Sons, Co.,
541 U.S. 369 (2004), which extended the statute of limitations for
certain § 1981 claims to four years. When plaintiffs filed this
suit in 2001, the accepted period of limitations for § 1981
claims in the Third Circuit was two years. See Zubi v. AT&T
Corp., 219 F.3d 220 (3d Cir. 2000). Based on Jones, Judge
Politan allowed plaintiffs to expand the putative class period by
two years. Although claims arising from 1997 to 1999 would not be
timely today even under the 4-year statute of limitation, Judge
Politan found that these claims "related back" to the original
claims under Fed.R.Civ.P. 15(c)(2).
The parties have engaged in substantial discovery since 2001
based on the understanding that plaintiffs' claims only extend to
actions taken after November 1999. However, because plaintiffs
seek to prove a "pattern and practice" of discrimination at J&J,
many of their discovery requests sought documents relevant to
periods before the beginning of the proposed class period.
The Federal Magistrates Act provides two separate standards of
judicial review: (1) "de novo" for magistrate resolution of
dispositive matters, see 28 U.S.C. § 636(b)(1)(B)-(C), and (2)
"clearly erroneous or contrary to law" for magistrate resolution
of nondispositive matters. 28 U.S.C. § 636(b)(1)(A); Fed.R. Civ.
P. 72(a); Rule 72.1(a) of the Local Rules of the United States
District Court for the District of New Jersey; Cipollone v.
Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986). "Motions to
amend are usually considered non-dispositive motions" are and
reversed if the magistrate's decision is "clearly erroneous or contrary to
the law." Thomas v. Ford Motor Co., 137 F.Supp.2d 575, 579
A finding is contrary to law if the magistrate judge has
misinterpreted or misapplied applicable law. "A finding is
`clearly erroneous' when, although there is evidence to support
it, the reviewing court on consideration of the entire evidence
is left with the definite and firm conviction that a mistake has
been committed." Lo Bosco v. Kure Engineering Ltd.,
891 F.Supp. 1035, 1037 (D.N.J. 1995) (quoting United States v. Gypsum Co.,
333 U.S. 364, 395 (1948)).
The Third Circuit has interpreted this to mean that the
appellate court must accept the factual determination of the fact
finder unless that determination "either (1) is completely devoid
of minimum evidentiary support displaying some hue of
credibility, or (2) bears no rational relationship to the
supportive evidentiary data." Haines v. Liggett Group Inc.,
975 F.2d 81, 92 (3d Cir. 1992) (quoting Krasnov v. Dinan,
465 F.2d 1298, 1302 (3d Cir. 1972)).
Pursuant to a consent order dated July 19, 2002, Special Master
Politan has the "authority equivalent to that of a magistrate
Under Rule 15, an amendment "relates back" if "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, . . ." Fed.R.Civ.P. 15(c)(2).
In the Third Circuit, the "critical element" is whether the
defendant was on notice of the possibility of subsequent
amendments at the time of the original filing. See Pickens v.
Intercommunity Agency, Inc., 1997 WL 727604, *8 (E.D.Pa. Nov.
21, 1997). J&J argues that it was not on notice that plaintiffs' claims
could extend back to 1997, and based on the Third Circuit law at
the time, it is entitled to repose regarding any earlier claims.
Plaintiffs argue that potential class members should not be
punished by the Third Circuit's erroneous interpretation of the
law, and that J&J will not be unduly burdened by the amendment
because much of the discovery done so far already encompasses the
1997-1999 time period, the trial is still several years away, and
adding additional plaintiffs to this already large class action
will not significantly alter the course of the litigation.
Judge Politan found that the amendment did relate back because
J&J was on notice, from the time the original complaint was
filed, that its conduct dating back to 1997 was at issue in this
suit. Plaintiffs alleged a "pattern and practice" of
discrimination at J&J, and although they could only bring claims
for conduct occurring within the 2-year statute of limitations at
the time, they sought discovery regarding conduct from the
earlier period in order to prove a pattern. Plaintiffs' original
pleadings contain several allegations of discriminatory conduct
that occurred in 1997. See Plaintiffs' Brief at p. 12. Judge
Politan found that J&J was on notice that its conduct from this
period was at issue, and that plaintiffs' proposed amendment only
expands the class to include J&J employment practices in a
broader time frame.
J&J had relied on Nelson v. County of Allegheny, 60 F.3d 1010
(3d Cir. 1995), where the Third Circuit denied plaintiffs' motion
to amend a complaint to add new plaintiffs after the statute of
limitations had run. However, Nelson focused on the fact that
those plaintiffs had no excuse for waiting so long to file their
amendment. In this case, plaintiffs did not sit on their rights.
The Supreme Court's decision in Jones effected a major change
of law and plaintiffs filed their motion to amend within a few months of this change. Judge
Politan found this situation more in line with the Third
Circuit's decision in EEOC v. Westinghouse Corp., 869 F.2d 696
(3d Cir. 1989), rev'd on other grounds, where it held that
amended pleadings did relate back where they "raised no
additional substantive claims."
J&J also argues that plaintiffs' proposed amendment violates
Rule 15(c)(3), which sets forth the requirements for amendments
that add new parties to a litigation. Rule 15(c)(3) states that
new parties may be added only if the defendant (a) has received
such notice of the institution of the action that the party will
not be prejudiced in maintaining a defense on the merits, and (b)
knew or should have known that, but for a mistake concerning the
identity of the proper party, the action would have been brought
against the party.
Judge Politan had already found that J&J was on notice that its
actions from 1997 to 1999 were at issue in the case. Judge
Politan then ruled that the "mistake" in this case was in the
law. Since the Supreme Court found in Jones that the Third
Circuit had erroneously limited the statute of limitations on
some § 1981 claims to two years, the plaintiffs "acted with due
diligence" with respect to the addition of new plaintiffs.
A plain reading of Rule 15(c)(3) does permit the joinder of
additional parties due to a mistake of law. However, Third
Circuit case law has "adjusted" the role of Rule 15(c)(3) in a
number of ways. First, the rule refers only to the joinder or
substitution of defendants, but in Nelson, 60 F.3d at 1014,
the Third Circuit held that the rule would apply to the
substitution of plaintiffs as well. The Nelson court noted,
however, that joinder of plaintiffs was not usually as
problematic as the joinder of defendants. The Nelson court also
dropped "concerning the identity" from the "mistake concerning the identify" prong of
Rule 15(c)(3) and focused on whether the failure to include the
new plaintiffs was due to mistake generally. In Nelson, the
Circuit found that the plaintiffs had "sat on their rights" and
cited an Advisory Committee Note on the substitution of parties
stating that substitution was reserved for situations where an
"understandable mistake has been made." It does appear that the
holding in Nelson was based on a determination that those
plaintiffs had no good faith explanation for their failure to
amend their pleading earlier.
Other courts that have allowed amendments to class definitions
after the statute of limitations has run have either ignored Rule
15(c)(3) or found it inapplicable. See Westinghouse,
869 F.2d 696 (3d Cir. 1989) (allowing amendment that expanded class size
because it arose out of the same factual scenario); Immigrant
Assistance Project of the L.A. Cty. Fed of Labor v. INS,
306 F.3d 842 (9th Cir. 2002) (amendment of class to add new
claimants with similar claims allowed because of similarity of
claims and no prejudice to defendants). Plaintiffs have not cited
any case where Rule 15(c)(3) barred amendment of a claim that
otherwise "related back" to the original claim. In In re Bausch
& Lomb Securities Lit., 941 F.Supp. 1352 (W.D.N.Y. 1996), the
court held that an amendment expanding the class period was in
effect an amendment to add new plaintiffs, but ultimately denied
the amendment because those plaintiffs' claims arose from
different factual circumstances.
Although there is no clear case law establishing Judge
Politan's ruling that Rule 15(c)(3) is satisfied as long as
failure to include the new plaintiffs initially was due to a
"mistake" of any kind, his ruling was not clearly erroneous. The
Third Circuit has taken a general fairness approach to the application of Rule 15(c), and Judge Politan made
a reasonable application of Third Circuit case law to the facts
of this case.
The Court finds that Judge Politan's ruling that plaintiffs'
proposed amendments relate back to their original filing was not
It is on this 11th day of April, 2005:
ORDERED that Special Master Politan's decision granting
plaintiffs leave to amend their complaint is AFFIRMED.
© 1992-2005 VersusLaw Inc.