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Cincerella v. Egg Harbor Township Police Dep't

September 6, 2007


The opinion of the court was delivered by: Joel Schneider United State Magistrate Judge

[Doc. No. 15]


This matter is before the Court on plaintiff's "Motion to Amend Complaint" [Doc. No. 15] to name five additional individuals as defendants: Gary Rzemyk, Charles Davenport, Edward Bertino, Paul Roden and Casey Simerson. Defendants oppose the motion. The Court exercised its discretion to decide plaintiff's motion without oral argument. See Fed. R. Civ. P. 78 and L. Civ. R. 7.1(b)(4) and 78.1. For the reasons to be discussed, plaintiff's motion is GRANTED.


On March 13, 2004, plaintiff was a passenger in a vehicle when it was pulled over by Egg Harbor Township Police Department ("EHTPD") Detective Gary Rzemyk. (Rzemyk Aff. 1). Plaintiff alleges that after the vehicle stop the EHTPD improperly and unlawfully ran his information in an NCIC search. (Compl. 2). Plaintiff was subsequently arrested on March 14, 2004 by proposed defendants, EHTPD Patrolmen Charles Davenport, Paul Roden and Edward Bertino, for purportedly failing to make child support payments and for hindering apprehension. Id. In addition, plaintiff alleges that Casey Simerson was the dispatcher who performed the NCIC search leading to his alleged unlawful arrest. Plaintiff alleges that his arrest was wrongful and unlawful because his child support payments were current on the date of his arrest and because the Patrolmen illegally and improperly entered his residence by climbing onto an enclosed patio deck and entering through a sliding glass door. Id. at Count I, ¶¶3-4. Plaintiff further alleges that defendants acted willfully and maliciously to deprive him of his liberty, to physically and psychologically injure him, and to publicly humiliate and disparage him. Id. at Count I, ¶8. Plaintiff claims that the Egg Harbor Township Chief of Police and Police Department failed to adequately control and discipline the proposed new individual defendants and directly or indirectly approved of their behavior. Id. at Count III, ¶7. Additionally, plaintiff claims that the State of New Jersey, as Supervisor of the Atlantic County Probation Department Child Support Unit, improperly issued a warrant for child support payments that he did not owe. Id. at Count IV, ¶3.

Plaintiff filed this wrongful arrest action on March 14, 2006. In plaintiff's original complaint he named as Defendants the EHTPD, the State of New Jersey, the Chief of Police John J. Coyle, and John Doe Probation Officers (1-10). Id. at 1. Defendants answered plaintiff's complaint on May 31, 2007. It appears that all of the proposed individual defendants have already been deposed by plaintiffs.


Plaintiff's motion is governed by Fed. R. Civ. P. 15(a), which states:

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise, a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

Leave to amend a pleading is "within the discretion of the District Court," but denying a motion to amend without any justifying reason "is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules." Foman v. Davis, 371 U.S. 178, 182 (1962); Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 654 (3d Cir. 1998), abrogated on other grounds, Forbes v. Eagleson, 228 F.3d 471 (3d Cir. 2000). Unless 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 amendment," leave to amend should be "freely given." Foman, 371 U.S. at 182; Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002).

Leave to amend a complaint should only be denied because of undue delay if the delay causes the non-moving party to be prejudiced. "It is well-settled that prejudice to the non-moving party is the touchstone for the denial of an amendment." Cornell & Co., Inc. v. Occupational Safety and Health Review Commission, 573 F.2d 820, 823 (3d Cir. 1978); accord Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 (1971); Kerrigan's Estate v. Joseph E. Seagram & Sons, 199 F.2d 694, 696 (3d Cir. 1952). Even if the moving party does not explain the reason for delay, "such delay itself will not serve as a basis for denying [the] motion unless the defendant is prejudiced." Jenn-Air Products Co. v. Penn Ventilator, Inc., 283 F.Supp. 591, 594 (D.C. Pa. 1968); accord Leased Optical Departments-Montgomery Ward, Inc. v. Opti-Center, Inc., 120 F.R.D. 476, 479 (D.N.J. 1988). For example, in Boileau v. Bethlehem Steel Corp., the Third Circuit found that the District Court was wrong to deny a motion to amend that was filed ten years after the complaint was filed because there was no evidence of prejudice to the non-moving party. Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 939 (3d Cir. 1984)("discretionary procedural measures should be cautiously employed when denying a litigant her day in court").

A non-moving party is found to be prejudiced when it faces an undue burden or difficulty in proceeding with the litigation. In order to claim prejudice, a party "must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the . . . amendments been timely." Leased Optical, 120 F.R.D. at 479 (citing Heyl & Patterson Int'l v F.D. Rich Housing, 663 F.2d 419, 426 (3d Cir. 1981)). Additionally, the Third Circuit has stated that "[p]rejudice under the rule means undue difficulty in prosecuting a lawsuit as a result of a change of facts or theories on the part of the other party." Deakyne v. Commissioners of Lewes, 416 F.2d 290, 300 (3d Cir. 1969). In Coventry v. U.S. Steel Corp., the Third Circuit did not find any evidence of prejudice because the "nature of the claim that [the plaintiff] sought to add by his amendment indicate[d] that no additional discovery would have been necessary" and that even if additional discovery had been required it "would not have been unduly burdensome since it would have concerned the same subject matter as an issue already in the case ... and about which discovery had previously occurred." Coventry v. U.S. Steel Corp., 856 F.2d 514, 519 (3d Cir. 1988).

In addition to prejudice to the non-moving party, a court may deny a motion to amend if the amendment is futile. As interpreted by the Third Circuit, "[f]utility means that the complaint, as amended, would fail to state a claim upon which relief could be granted." In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997) (internal quotations omitted). In determining whether an amendment is futile, "the district court applies the same standard of legal sufficiency as applies under Rule 12(b)(6)." Burlington, 114 F.3d at 1434 (citing 3 Moore's Federal Practice, ¶ 15.08[4], at 15-81 (3d ed. 2000)); accord Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000); Boerger v. Commerce Ins. Services, No. Civ. 04-1337 (JHR), 2005 WL 3235009, at *3 (D.N.J. Nov. 28, 2005). The standard of review for a Rule 12 (b)(6) motion "requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989); accord Taliaferro v. Darby Tp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006); Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005).

Federal Rule of Civil Procedure 20(a) is also relevant to plaintiff's motion since it allows for the permissive joinder of parties. Rule 20(a) states that "[a]ll persons . . . may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." As stated in Rule 20, for there to be a proper joinder, the claims must arise out of the same transaction and also involve a question of law and fact common to both claims. Philadelphia Dressed Beef Co. v. Wilson & Co., 19 F.R.D. 198, 200 (E.D. Pa. 1956). The purpose of Rule 20 is to "promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits." 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d ยง1652, p. 395. Additionally, "Rule 20(a) is permissive in character" and "the court has discretion to deny joinder if it determines that the addition of the party under Rule 20 will not foster the objectives of the rule, but will result in prejudice, expense or delay." Id. Whether common transactions and questions of law and fact ...

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