The opinion of the court was delivered by: Irenas, Senior District Judge
Presently before the Court are Defendant Officer David Fortenberry's Motion for Permission to File a Motion and Cross-Motion for Summary Judgment Motion Out of Time (Docket No. 73) and his Motion and Cross-Motion for Summary Judgment (Docket No. 71). The Court decided the Motions for Summary Judgment by Fortenberry's co-defendants in an Opinion and Order issued on September 23, 2008. Apata v. Howard, No. 05-3204, 2008 WL 4372917 (Sep. 23, 2008).
Plaintiff Mosimable Apata initiated this action pursuant to 42 U.S.C. §§ 1983, 1985, and 1986. His Complaint raises a series of claims under both federal and state law against Fortenberry and his co-defendants. Plaintiff's allegations pertain to an investigatory stop and two arrests, all of which occurred during a two day span in June of 2003. As to Fortenberry specifically, the Complaint alleges false arrest and malicious prosecution in violation of federal law (Counts IV and VI) and malicious prosecution in violation of New Jersey law (Count VII).*fn1 In addition, Defendant Officer James Howard asserts cross-claims for indemnification and contribution against his co-defendants, Fortenberry and Troy Davis.
For the reasons stated below, the Court will grant Fortenberry's motions and dismiss Howard's cross-claims.*fn2
The Court will first address Fortenberry's Motion for Permission to File his Summary Judgment Motion and Cross-Motion Out of Time Pursuant to Local Civil Rule 83.2(b). As mandated by the Order of Magistrate Judge Ann Marie Donio, dispositive motions in this matter were to be filed no later than December 31, 2007. (Dkt. No. 49.) On September 23, 2008, the Court issued an Opinion and Order disposing of the summary judgment motions filed by Fortenberry's co-defendants. See Apata, 2008 WL 4372917, at *1.
Fortenberry submitted his summary judgment motion on October 3, 2008, followed by this motion seeking permission to file his dispositive motion. (Dkt. Nos. 71 & 73.) In support of the motion seeking permission to file, Fortenberry's attorney certified that the delinquent filing is attributable to her medical circumstances and staffing issues experienced by her firm. (See Certification of Paulette Pitt, Esq. ¶¶ 3-5.) Citing Local Civil Rule 83.2(b), Fortenberry's attorney contends that injustice to her client would result if the Court refused to consider the delinquent dispositive motion. (See Def.'s Ltr. Br., Nov. 10, 2008, at 1-2.) Plaintiff has not submitted an opposition to Fortenberry's pending motions.
Pursuant to Local Rule 83.2(b), "[u]nless otherwise stated, any Rule may be relaxed or dispensed with by the Court if adherence would result in surprise or injustice." Any relaxation of the Court's deadlines under Local Rule 83.2(b) is a matter of judicial discretion, not one of right. See Oberti v. Bd. of Educ. of Borough of Clementon Sch. Dist., No. 91-2818, 1995 WL 428635, at *3 (D.N.J. Jul. 17, 1995). The relief contemplated by Local Rule 83.2(b) "means more than relief from a party's unexcused negligence." Id.
The Court does not doubt the veracity of counsel's representation that she and her firm have experienced certain difficulties over the past year. That said, the disregard by counsel and her firm for the December 31, 2007 dispositive motions deadline is not easily excused. At a minimum, counsel or her colleagues should have contacted the Court by that date to seek an extension of the filing deadline. See Gear v. Constantinescu, 741 F.Supp. 525, 526 (D.N.J. 1990) ("[D]efendant could have asked the court for an extension of time to file jurisdictional motions to preserve his right to do so."). Failing that, counsel should have contacted the Court in early 2008 to explain why the dispositive motion was delayed and to request an amended filing deadline. Instead, all indications are that counsel simply awaited the Court's Opinion as to Fortenberry's co-defendants' motions, and then replicated aspects of that Opinion into the brief submitted in support of Fortenberry's dispositive motion.
The particular circumstances of this case are such that the claims against Fortenberry are essentially identical to those already resolved favorably to his co-defendants. As such, declining to consider Fortenberry's motion could result in injustice. Therefore, the Court will grant Fortenberry's Motion for permission to file his dispositive motion.
The Court's Opinion of September 23, 2008 included a thorough recitation of the facts pertinent to Plaintiff's claims, including a description of the relevant conduct by Fortenberry. See Apata, 2008 WL 4372917, at *1-*5. The Court hereby incorporates Part I of that Opinion as if fully set forth herein.
In addition to those facts, the Court notes that Fortenberry is a Newark, New Jersey police officer who was wearing his police uniform and carrying his service firearm during the June 26, 2003 verbal confrontation with Plaintiff outside of Willingboro High School. (See Def.'s 56.1 Stmt. ¶¶ 4, 7, 11, 13.) Fortenberry remained in uniform when he spoke to Officer Howard at ...