The opinion of the court was delivered by: Honorable Joseph E. Irenas
IRENAS, Senior District Judge:
Plaintiffs Gilbert and Tonya Badillo (collectively "Plaintiffs") initiated this action pursuant to 42 U.S.C. § 1983 to recover for alleged constitutional and state law violations stemming from an undercover investigation of a large scale narcotics distribution conspiracy.*fn1 Pending before the Court is Plaintiffs' Motion for Leave to File an Amended Complaint pursuant to Fed. R. Civ. P. 15(a).*fn2
On May 2, 2012, this Court granted Defendants' Motion to Dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(6). See Badillo v. Stopko, No. 11-4815, 2012 WL 1565303, *7 (D.N.J. May 2, 2012). Plaintiffs' Complaint alleged constitutional violations under the Fourth and Fourteenth Amendments for unlawful search and seizure, false arrest, false imprisonment, malicious prosecution, supervisory liability, and failure to intervene.*fn3 For a more detailed account of the facts underlying this action see Badillo, 2012 WL 1565303 at *1-3.
In granting Defendants' Motion to Dismiss, this Court found that Plaintiffs failed to proffer sufficient facts to support the alleged absence of probable cause underlying the search and arrest warrants. Id. at *5. Based on the evidence included in the Affidavit of Application (hereinafter "Affidavit"), this Court found that Defendants had probable cause to believe that Plaintiff Gilbert was the person known as Tino who was found to be connected to Real Deal suspects. Id. at *6. In support of this conclusion this Court relied on the fact that (1) Defendants had no evidence to suggest that incriminating phone conversations made from a phone registered to Gilbert were not made by Gilbert himself; (2) the new cell phone number registered to Antinohel Centeno (hereinafter "Antinohel") was traced back to Gilbert's cell phone plan; (3) the Affidavit contained details about Gilbert's prior arrests for drug related offenses; and (4) Plaintiffs made no specific factual allegations of deliberate falsehoods or omissions in the Affidavit other than one misidentification.*fn4 Id. at *5.
Furthermore, this Court also noted that "the force of Plaintiffs' allegations are not that the Affidavit contained inaccuracies or omissions, but rather that Defendants should have been able to conclude from their investigation that Tino was Antinohel Centeno and not Gilbert Badillo." Id.
This Court also dismissed Plaintiffs' state law claims for intentional infliction of emotional distress, trespass, and loss of consortium. Id. at *6-7. This Court found that (1) with respect to intentional infliction of emotional distress, Plaintiffs presented no factual allegations that Defendants engaged in the requisite intentional, outrageous conduct; (2) with respect to trespass, the presence of a valid search warrant negates such a claim; and (3) in the absence of a viable claim by Gilbert, his wife's claim for loss of consortium must also fail. Id. at *7. Pursuant to this Court's Order and Opinion dated May 2, 2012, Plaintiffs now seek leave to file an Amended Complaint. (Decl. Of Pls.' Counsel ¶ 5.)
In their Proposed Amended Complaint, Plaintiffs allege specific falsehoods in the Affidavit, which they claim were material in establishing probable cause, including the allegations that: (1) Defendant Stopko recognized Gilbert's voice on the intercepted phone calls, even though he had no independent basis to make such an identification; (2) Gilbert drives the black Honda Accord which is registered to Antinohel's address; and (3) Gilbert was observed meeting with Real Deal suspects. (Proposed Am. Compl. ¶¶ 30, 46, May 16, 2012.)
In addition to these alleged falsehoods, Plaintiffs also identify several omissions that they claim were material in establishing probable cause. These include: (1) the absence of direct surveillance of drug activity occurring at Plaintiffs' residence despite substantial observation of the premises; (2) the absence of direct surveillance of Gilbert engaged in illegal activity such as drug buys or delivery of paraphernalia; (3) the absence of evidence of Gilbert meeting with Real Deal suspects; (4) the absence of proof that the intercepted phone calls were made from Gilbert's home; and (5) failure to investigate whether Antinohel drove the black Honda Accord, or engaged in illegal activity at his own residence.*fn5 (Id. ¶¶ 30, 37, 44.)
Finally, based on the testimony of a retired Major from the New Jersey State Police, Plaintiffs assert that Defendants' investigation was flawed and does not support a finding of probable cause because: (1) Defendants never positively identified Gilbert as Tino; (2) Defendants never confirmed that Gilbert ever used the cell phone used in the monitored conversations; (3) Defendants never used basic police investigation techniques, such as a pretext traffic stop, to ascertain whether Gilbert was in fact Tino; (4) Defendants never cross checked Gilbert's criminal history for identifying characteristics; and (5) Defendants failed to submit and review surveillance and other reports to supervisors. (Id. ¶ 34.)
Federal Rule of Civil Procedure 15(a)(2) states that a party may amend its pleading with the opposing party's consent or the court's leave. The rule provides a liberal standard for courts stating that "leave to amend shall be freely given when justice so requires." Forman v. Davis, 371 U.S. 178, 182 (1962)(citing Fed. R. Civ. P. 15(a)(2)). Within the Third Circuit, "a court must grant leave to amend before dismissing a claim that is merely deficient." Boone v. Pa. Office of Vocational Rehab., 373 F. Supp. 2d 484, 490 (M.D. Pa. 2005). However, the grant or denial of leave is within the discretion of the District Court, and a court may deny leave to amend in the presence of "undue delay, bad faith, dilatory motive, prejudice, [or] futility." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)(internal citations omitted).
In many jurisdictions, "it is well recognized that futility is an appropriate ground for denying leave to amend a complaint." Fishbein Family P'ship v. PPG Indus. Inc., 871 F. Supp. 764, 768 (D.N.J. 1994)(internal citation omitted). The standard for denying leave based on futility is whether the complaint as amended would survive a motion to dismiss. See Burlington Coat Factory Sec. Litig., 114 F.3d at 1434. As a result, when assessing the futility of a proposed amendment, courts are to ...