The opinion of the court was delivered by: Simandle, District Judge
This matter originated when Plaintiff, Steven J. Monaco ("Plaintiff") filed a complaint alleging that certain defendants (including the City of Camden and several Camden City police officers) violated his constitutional rights through the use of excessive force, unreasonable seizure and unlawful arrest while he was attending a concert at the Tweeter Center in Camden, New Jersey. This matter is before the Court upon Plaintiff's appeal from U.S. Magistrate Judge Ann Marie Donio's March 30, 2007 Order (the "March 2007 Order") denying Plaintiff's motion in which Plaintiff sought to amend his complaint for a second time in order to add seven additional defendants. For the reasons expressed below and finding no clear error, the Court will affirm Magistrate Judge Donio's March 2007 Order.
On the evening of May 31, 2002, Plaintiff was in a parking lot located next to a concert venue (the Tweeter Center) in Camden, New Jersey preparing to attend a concert. (Amended Complaint ¶ 12.) Around 6:00 p.m, a fight broke out approximately thirty feet from Plaintiff to which the Camden City police responded. (Id. ¶ 15-17.) As Plaintiff began walking out of the parking lot at the behest of the police, Plaintiff alleges that he heard an officer shout "I think that is him" followed by several police officers throwing Plaintiff to the ground and striking him with night sticks. (Id. ¶ 19-20.) According to Plaintiff, he was then transported to the Camden Police Station, pushed against a wall, threatened, searched, interrogated and put in a jail cell for two hours where he was verbally harassed by officers. (Id. ¶ 27, 29-31, 33-38.) Plaintiff was then confined for two hours, removed from the cell and interrogated by a police officer. (Id. ¶ 38-45.) Plaintiff was later released and sought medical treatment at Cooper University Hospital. (Id. ¶ 49-50.)
Two years later, on May 25, 2004, Plaintiff filed a Complaint against the City of Camden, the City of Camden Police Department and numerous police officers (including John Does I-X allegedly employed by the City of Camden Police Department) claiming that these defendants violated his constitutional rights through the use of excessive force, unreasonable seizure and unlawful arrest. Almost another year later, on March 9, 2005, this Court entered a Consent Order permitting Plaintiff to amend the Complaint (the "Amended Complaint")*fn1 naming several additional police officer defendants, including Officer Lawrence Norman, Officer Miguel Rodriguez, Sergeant Michael Hall, Officer Richard Verticelli, Officer Luis A. Sanchez, Officer Juan Rodriguez, and Officer Shay Sampson. [Docket Item Nos. 14-15.] The Amended Complaint also retained Plaintiff's claims against individual John Doe Defendants I-X.
During the course of discovery, on July 11, 2006, certain witnesses of the events May 31, 2002 were allowed to review Camden City Police photographs in an effort to identify those officers involved. These eyewitnesses, who Plaintiff contends had a different vantage point from Plaintiff, identified seven additional Camden City police officers: Sergeant Domingo Rivera, Officer John R. Morris, Officer William Reese, Sergeant Gary Emenecker, Officer Jorge Medina, Officer William Frampton, and Officer Rolan Carter.
B. Procedural History and Magistrate Judge Donio's Decision
On August 18, 2006, over two years after Plaintiff filed the Original Complaint in this matter, and more than four years after the event, Plaintiff filed a motion for leave to file a Second Amended Complaint to add seven additional defendants replacing the John Does I - VII named in the Amended Complaint filed on March 9, 2005. Although untimely, Magistrate Judge Donio accepted Defendant City of Camden's opposition (filed on September 15, 2006) and heard oral argument on the motion on November 6, 2006.
By order dated March 30, 2007, Magistrate Judge Donio denied Plaintiff's motion for leave to amend. [Docket Item No. 57.] The March 2007 Order first establishes that the parties agreed that a cause of action for excessive force is governed by a two-year statute of limitation and that, because the incident giving rise to Plaintiff's claims occurred on May 31, 2002, the statute of limitation expired on May 31, 2004. (March 2007 Order at 4.) The March 2007 Order then laid out the issue before the Court upon Plaintiff's motion to amend -- whether New Jersey law (specifically N.J. Court Rules 4:9-3 and 4:26-4) would permit relation back with respect to Plaintiff's motion to amend his complaint.
Addressing first whether relation back is permitted under N.J. Court Rule 4:26-4, the March 2007 Order stated that relation back would be permitted if (1) Plaintiff could demonstrate that he did not know the true identity of the proposed defendants at the time the Complaint was filed; (2) Plaintiff exercised due diligence to ascertain the proposed defendant's true name before and after filing of his complaint; (3) Plaintiff included a fictitious name designation in the complaint that contained a description sufficient to identify the defendant; and (4) the proposed defendant would not be prejudiced by the delay in being named a defendant. (Id. at 7-8.) Noting that Plaintiff failed to identify any efforts made to identify the proposed defendants prior to the expiration of the statute of limitation, Magistrate Judge Donio concluded that Plaintiff failed to meet the second requirement of Rule 4:26-4 because Plaintiff failed to show diligence in seeking the identity of the individuals Plaintiff sought to name prior to the filing of the original Complaint. (Id. at 9-10.) Plaintiff's argument fails, according to the March 2007 Order, because it focuses on the efforts Plaintiff took after the expiration of the statute of limitation.
Next, the March 2007 Order addressed (and rejects) Plaintiff's argument that the New Jersey "discovery rule" (or fictitious name rule) permits the amendment sought in the motion to amend. (Id. at 11.) Magistrate Judge Donio rejected Plaintiff's assertion that the discovery rule tolls the accrual of the statute of limitations in this case or that the discovery rule was even applicable in this matter. (Id.)
Finally, the March 2007 Order addressed whether relation back of the claims was permitted under New Jersey's general relation back rule, Rule 4:9-3. (Id. at 12.) According to the March 2007 Order, Rule 4:9-3 allows relation back if (1) the claim asserted in the amended complaint arises out of the conduct or occurrence alleged in the original complaint; (2) the new defendant(s) must have received notice of the institution of the action before the statute of limitation expired; and (3) the new defendant(s) must have known, or should have known, that but for the misidentification of the proper party, the action would have been brought against him or her. (Id.) Concluding that the first prong of the test was met, the March 2007 Order held that Plaintiff failed to satisfy the second and third prongs of the test. Specifically, Magistrate Judge Donio held that (a) the Plaintiff does not assert that the wrong parties were named in the ...