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Tosado v. Borough of Spotswood

January 31, 2007


The opinion of the court was delivered by: Honorable Esther Salas, United States Magistrate Judge


This matter having been opened to the Court upon Motion by Maria D. Noto, Esq., of the Law Office of Maria D. Noto, P.C., attorneys for Plaintiffs, seeking leave to file a Second Amended Complaint pursuant to FED.R.CIV.P. 15(a); and considering Defendants, CFG Health Systems' ("CFG") opposition; for the reasons set forth below the motion is hereby granted in part and denied in part


The allegations in this case are well known to the parties and will not be repeated here at length. The injury in question which was alleged to have been sustained by Plaintiff, Nestor Tosado, occurred on January 21, 2003. A Complaint was filed in the Superior Court of New Jersey, Law Division, Middlesex County and was later removed to this Court on October 25, 2005. When this matter was removed, the Third-Party Complaint against CFG by Warden Abode and the Middlesex County Department of Adult Corrections (hereinafter collectively referred to as "MCDAC") was inadvertently omitted from the federal docket but was added by Court Order on March 23, 2006. At the time the state court matter was filed and subsequently removed to this Court, Plaintiffs were represented by Kenneth Weiner. At some point during his representation of Plaintiffs, Mr. Weiner was charged with a criminal offense and disbarred. Ms. Noto, new counsel for Plaintiffs, who appeared in this case on March 15, 2006, has indicated that she attempted to retrieve Plaintiffs' file from Mr. Weiner but was unsuccessful for quite some time.

The importance of locating Plaintiffs' file is two fold. First, the file is necessary to carry on the litigation in the best interests of Plaintiffs. Second, and most critical, there is indication on the record that MCDAC are impermissibly Defendants in this matter as no Tort Claims Notice was filed pursuant to the Federal Rules. Counsel for Plaintiffs has indicated that should a review of the file indicate that there was not, in fact, a Tort Claims Notice filed, MCDAC would be voluntarily dismissed from the suit. Accordingly, the Third-Party claims against CFG would be dismissed. It appears from Plaintiffs' submissions to this Court that they did not previously amend their Complaint to include a direct count against CFG because they were already in the suit.

In June, 2006, Magistrate Judge Wigenton, by way of an Amended Scheduling Order, permitted the parties to make amendments to the pleadings until October 15, 2006. Plaintiffs did not seek to amend the Complaint before this time. Hence, Plaintiffs are seeking to amend the Complaint to add CFG, as well as "John Does", individual employees of CFG, as Defendants.


Although leave to amend the pleadings under Fed.R.Civ.P. 15(a) is generally given freely, the Court may deny a motion to amend where there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment". Foman v. Davis, 371 U.S. 178, 182 (1962). The Court must also determine that a proposed amendment would be futile if the complaint, as amended, would not survive a motion to dismiss for failure to state a claim. Id. Finally, in determining a motion to amend a complaint the Court looks only at the pleadings. Pharmaceutical Sales and Consulting Corp. v. J.W.S. Delavau, Co., Inc., 106 F.Supp. 2d 761, 765 (D.N.J. 2000).

Plaintiffs argue that because CFG and certain employees' inclusion as Third-Party Defendants in this action already subjected them to liability based on the same claims and have been a party to this action since the filing of the Third-Party Complaint they would not face any prejudice if required to remain in the suit. Additionally, Plaintiffs argue that an unexpected disbarrment of their previous attorney and problems resulting therefrom caused a delay that could not otherwise be prevented. Defendants respond that Plaintiffs engaged in undue delay and that the statute of limitations has run as to the individual Defendants. Moreover, Defendants assert that while CFG is a state actor for purposes of § 1983, CFG cannot be held vicariously liable for their employees' actions absent proof of a policy or custom that caused the alleged violation of 42 U.S.C. § 1983

A. CFG Health Systems

Plaintiffs' Motion to Amend as to CFG Health Systems is not clearly futile, nor is it the result of undue delay, bad faith or dilatory motive on the part of Plaintiffs. Plaintiffs' previous counsel was unexpectedly and abruptly removed from the case due to a disbarrment. This is not something Plaintiffs could have contemplated. Generally under such circumstances this Court would offer Plaintiffs more time to obtain new counsel and to have that new counsel become acquainted with the Court file. In this case, there was unfortunately, even more delay due to the fact that new counsel could not obtain the Court file to no fault of her own.

To complicate matters further, Plaintiffs believed that a Tort Claims Notice had been filed against MCDAC, by their original attorney, and therefore believed MCDAC would be a valid party to this cause of action. Flowing from that, Plaintiffs would have had no reason to believe that MCDAC would be released from the suit and in turn would justifiably believe that CFG would not be released from the suit. Notably, Ms. Noto has been counsel of record in this case since March 15, 2006. Presumably, on or near the time of her entry of appearance she read all of the pleadings including MCDAC's Answer which included an affirmative defense based on lack of Tort Claims Notice. It would have been wise at that stage in the litigation to undergo due diligence to determine whether or not a Tort Claims Notice had been properly filed. This may have lead to an earlier conclusion that there was potential for CFG to be dismissed as a party in this action and perhaps Plaintiffs would have sought to amend the Complaint to include a direct count against CFG at an earlier stage in the litigation.

While Plaintiffs could have sought an earlier amendment to the Complaint, this Court does not find that Plaintiffs' Motion is the result of undue delay, bad faith or dilatory motive. This Court is aware of CFG's argument that the Third-Party Complaint should have immediately put Plaintiffs on notice of possible direct claims against CFG. However, as previously noted, there was a changing of attorneys and a difficulty of obtaining the Plaintiffs' file that was of no fault of the Plaintiffs. Additionally, it appears as though Plaintiffs' previous counsel may have made serious errors in this matter including the failure to file a Tort Claims Notice or at least the failure to maintain proof of filing of same. This Court cannot hold Plaintiffs to the inefficiencies of Mr. Weiner and under the liberal standard governing the amendment of complaints cannot find that Plaintiffs Motion to Amend was the result of undue delay, bad faith or dilatory motive.

Plaintiffs' Motion to Amend also falls within the statute of limitations."Where plaintiff [is] amending her complaint to assert a claim directly against third-party defendant and where that claim arose out of the same occurrence as that brought by third-party plaintiff, the amendment relate[s] back to the original complaint, and plaintiff's claim against third-party defendant was not barred by the statute of limitations. ...

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