The opinion of the court was delivered by: Bongiovanni, Magistrate Judge
Currently pending before the Court is Plaintiffs Edena Amentler and Michael Perselay's (collectively, "Plaintiffs") motion seeking leave to file a Second Amended Complaint in order to add a count for premises liability and negligent security, amend existing counts to include additional allegations and add approximately 50 new factual allegations to the Amended Complaint. All Defendants oppose Plaintiffs' motion. The Court has fully reviewed the papers submitted in support of and in opposition to Plaintiffs' motion, including the supplemental briefing requested by the Court on February 14, 2011. The Court considers Plaintiffs' motion without oral argument pursuant to FED.R.CIV.P. 78. For the reasons set forth below, Plaintiffs' motion is DENIED.
I. Background and Procedural History
The parties and the Court are all familiar with the facts underlying this litigation. As such, they are not restated at length herein. This matter arises out of the alleged rape and sexual assault of Plaintiff Edena Amentler ("Amentler") by Defendant Jeffrey J. Krol ("Krol"). The alleged rape and sexual assault occurred while Amentler attended a party being hosted at the residence of Defendants George P. Owen and George A. Donzella, both of whom along with Krol and Defendant Tom J. Stiner are owner-operators of Defendant 69 Main Street, LLC d/b/a Fox and Hound Tavern at the Lebanon Hotel (the "Fox and Hound").
In their Amended Complaint, Plaintiffs bring several claims against Defendants arising out of Krol's alleged rape and sexual assault of Amentler. Specifically, Amentler asserts claims for (1) assault and battery; (2) false imprisonment; and (3) assault and battery with a deadly weapon against Krol. Plaintiffs assert claims for (1) placing one in enhanced risk of developing HIV or AIDS; and (2) intentional infliction of emotional distress. And Plaintiffs assert claims for (1) negligent infliction of emotional distress; (2) New Jersey Law Against Discrimination ("NJ LAD"), sexually hostile work environment; (3) NJ LAD, quid pro quo sexual harassment; (4) NJ LAD, unlawful retaliation; (5) aiding and abetting liability; (6) failure to maintain a safe workplace; (7) Dram Shop Act and failure to maintain a safe environment; (8) Dram Shop Act and serving alcohol to a minor; (9) violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e, et seq.-§704(a); and (10) violations of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. against all Defendants. Plaintiffs now seek to amend their Amended Complaint in order to add a claim for premises liability and negligent security. They also seek to supplement a number of existing counts and to add approximately 50 new factual allegations through their proposed Second Amended Complaint.
Plaintiffs argue that they should be permitted to make the aforementioned amendments pursuant to the liberal standards set forth in FED.R.CIV.P. 15. In this regard, Plaintiffs argue that delay alone is not a sufficient reason to deny their motion and that because their motion was made during the discovery stage of proceedings and before dispositive motions were filed, Defendants will not be prejudiced by the proposed amendments. Plaintiffs further argue that there will be no prejudice to Plaintiffs because their proposed amendments, including "the only entirely new count[,] concerns the same events and little or no new discovery will be required to decide it." (Pls. Br. at 3). In addition, Plaintiffs contend that their amendments, and specifically, their proposed new claim for premises liability and negligent security, are not futile.
Defendants oppose Plaintiffs' motion. Defendants argue that Plaintiffs unduly delayed in filing the instant motion, which seeks to add allegations based on alleged facts known to Plaintiffs prior to the start of discovery. Defendants note that discovery was essentially complete at the time Plaintiffs filed the instant motion and, despite Plaintiffs' claims to the contrary, argue that if Plaintiffs' proposed amendments are allowed significant additional discovery will be required. Defendants contend that this is true because, unlike Plaintiffs' existing claims, Plaintiffs' proposed premises liability and negligent security claim focuses not on individual acts that occurred at the party but on the party as a whole. As such, Defendants will have to inquire into completely unexplored facts relating to Plaintiffs' basis for their claim that the owners of the property where the party was held and the owners of the Fox and Hound should be held liable for the alleged intentional, criminal acts of Krol. Moreover, Defendants assert that not only will Plaintiffs' proposed amendments require additional fact discovery, but instead, they will likely require expert testimony regarding the appropriate safety and security standards to be utilized at parties in locations such as that at issue here. Further, Defendants claim that in light of the need to take the aforementioned discovery, if Plaintiffs are permitted to file their proposed Second Amended Complaint, the dates set for filing dispositive motions will necessarily be adjourned. As a result, Defendants argue that they will be prejudiced by Plaintiffs' proposed amendments.
Defendants further argue that Plaintiffs' proposed amendments are futile. In this regard, Defendants argue that Plaintiffs' proposed new premises liability and negligent security claim, which is premised on Plaintiffs being Defendants' business invitees, is futile because the facts alleged in the proposed Second Amended Complaint establish that Plaintiffs were not Defendants' business invitees, but instead were social guests. Moreover, Defendants contend that even if Plaintiffs have alleged sufficient facts to establish that Plaintiffs were business invitees, their proposed Second Amended Complaint is devoid of any facts establishing that Defendants breached their duty of care to Plaintiffs. As such, Defendants argue that Plaintiffs' motion should be denied.
According to FED.R.CIV.P. 15(a), leave to amend the pleadings is generally given freely. See Foman v. Davis, 371 U.S. 178, 182(1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). Nevertheless, 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." Id. However, where there is an absence of undue delay, bad faith, prejudice or futility, a motion for leave to amend a pleading should be liberally granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004).
In deciding whether to grant leave to amend, "prejudice to the non-moving party is the touchstone for the denial of the amendment." Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (quoting Cornell & Co., Inc. v. Occupational Health and Safety Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978)). To establish prejudice, the non-moving party must make a showing that allowing the amended pleading would (1) require the non-moving party to expend significant additional resources to conduct discovery and prepare for trial, (2) significantly delay the resolution of the dispute or (3) prevent a party from bringing a timely action in another jurisdiction. See Long, 393 F.3d at 400. Delay alone, however, does not justify denying a motion to amend. See Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001). Rather, it is only where delay becomes "'undue,' placing an unwarranted burden on the court, or . . . 'prejudicial,' placing an unfair burden on the opposing party" that denial of a motion to amend is appropriate. Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984). Moreover, unless the delay at issue will prejudice the non-moving party, a movant does not need to establish a compelling reason for its delay. See Heyl & Patterson Int'l, Inc. v. F. D. Rich Housing of Virgin Islands, Inc., 663 F.2d 419, 426 (3d Cir. 1981). Further, in examining bad faith, like undue delay, the Court looks at the moving party's reasons for not amending sooner. Lyon v. Goldstein, Civil Action No. 04-3458 (MLC), 2006 WL 2352595, at *4 (D.N.J. Aug. 15, 2006.
A motion to amend is also properly denied where the proposed amendment is futile. An amendment is futile if it "is frivolous or advances a claim or defense that is legally insufficient on its face." Harrison Beverage Co. v. Dribeck Imp., Inc.,, 133 F.R.D. 463, 468 (D.N.J. 1990) (internal quotation marks and citations omitted). In determining whether an amendment is "insufficient on its face," the Court employs the Rule 12(b)(6) motion to dismiss standard (see Alvin, 227 F.3d at 121) and considers only the pleading, exhibits attached to the pleading, matters of public record and undisputedly authentic documents if the party's claims are based upon same. See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). When considering whether a pleading would survive a Rule 12(b)(6) motion, the Court must accept all facts alleged in the pleading as true and draw all reasonable inferences in favor of the party asserting them. Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004). "[D]ismissal is appropriate only if, accepting all of the facts alleged in the [pleading] as true, the p[arty] has failed to plead 'enough facts to state a claim to relief that is plausible on its face[.]'" Duran v. Equifirst Corp., Civil Action No. 2:09-cv-03856, 2010 WL 918444, *2 (D.N.J. March 12, ...