United States District Court, D. New Jersey, Camden Vicinage Division
Decided: September 10, 2014.
For JAMIE DEE WORSTER-SIMS, ASHLEE SIMS, Plaintiffs: JONATHAN M. COHEN, LEAD ATTORNEY, PHILADELPHIA, PA; JOSEPH M. MARRONE, JR., MICHAEL DANIEL POMERANTZ, Marrone Law Firm, LLC, PHILADELPHIA, PA.
For TROPICANA ENTERTAINMENT, INC., TROPICANA ENTERTAINMENT HOLDINGS, LLC, TROPICANA ENTERTAINMENT INTERMEDIATE HOLDINGS, LLC, TROPICANA ENTERTAINMENT, LLC, TROPICANA ATLANTIC CITY CORP., TROPICANA AC SUB CORP., Defendants: AMY ELIZABETH RUDLEY, JEFFREY RYAN LINDSAY, LEAD ATTORNEYS, COOPER, LEVENSON, APRIL, NIEDELMAN & WAGENHEIM, PA, ATLANTIC CITY, NJ; RUSSELL L. LICHTENSTEIN, LEAD ATTORNEY, COOPER, LEVENSON, PA, ATLANTIC CITY, NJ.
For PROVIDENCE AC, INC., METRONOME HOSPITALITY GROUP, Defendants, Cross Defendants: CHRISTOPHER C. MAURO, CAMACHO MAURO MULHOLLAND, LLP, NEW YORK, NY.
For MICHAEL JONES, Defendant, Cross Claimant, Cross Defendant: BRIAN D. HEUN, LEAD ATTORNEY, RIDGWAY & RIDGWAY, LINWOOD, NJ.
For TROPICANA ATLANTIC CITY CORP., TROPICANA ENTERTAINMENT, LLC, TROPICANA ENTERTAINMENT, INC., PROVIDENCE AC, INC., TROPICANA AC SUB CORP., TROPICANA ENTERTAINMENT HOLDINGS, LLC, TROPICANA ENTERTAINMENT INTERMEDIATE HOLDINGS, LLC, Cross Defendants, Cross Claimants: AMY ELIZABETH RUDLEY, JEFFREY RYAN LINDSAY, LEAD ATTORNEY, COOPER, LEVENSON, APRIL, NIEDELMAN & WAGENHEIM, PA, ATLANTIC CITY, NJ; RUSSELL L. LICHTENSTEIN, LEAD ATTORNEY, COOPER, LEVENSON, PA, ATLANTIC CITY, NJ.
For MICHAEL JONES, Counter Claimant: BRIAN D. HEUN, LEAD ATTORNEY, RIDGWAY & RIDGWAY, LINWOOD, NJ.
For ASHLEE SIMS, JAMIE DEE WORSTER-SIMS, Counter Defendants: JONATHAN M. COHEN, LEAD ATTORNEY, PHILADELPHIA, PA; JOSEPH M. MARRONE, JR., Marrone Law Firm, LLC, PHILADELPHIA, PA; MICHAEL DANIEL POMERANTZ, Marrone Law Firm, LLC, PHILADELPHIA, PHILADELPHIA, PA.
MEMORANDUM OPINION AND ORDER
Joel Schneider, United States Magistrate Judge.
This matter is before the Court on the " Motion for Leave to Amend Answer to Include Third-Party Complaint Against Beau Cantera" filed by defendant City of Atlantic City (" Atlantic City" ) [Doc. No. 74]. The Court is in receipt of plaintiffs' opposition [Doc. No. 79] and Atlantic City's reply [Doc. No 81]. The Court recently held oral argument.
Atlantic City seeks to amend its answer to include a third-party complaint against plaintiff's cousin, Beau Cantera. On June 2, 2014, the Court denied defendants' first attempt to join Cantera. See June 2, 2014 Memorandum Opinion and Order [Doc. No. 59]. The Court noted that in order to join Cantera defendants had to show that Cantera owed plaintiff a duty of care. Id. at 10. After analyzing the proposed third-party complaint in light of the applicable case law, the Court held that no such duty existed. Id. at 18. Atlantic City's subsequent motion for reconsideration was also denied [Doc. No. 71]. Atlantic City now argues that the " rescue doctrine" salvages its claim against Cantera. The Court disagrees and will deny Atlantic City's motion. Atlantic City also repeats its standing defense which will also be denied.
The background for this motion summarized in the Court's previous Opinion has not changed. Plaintiff alleges that in May of 2011, plaintiff and his cousin, Beau Cantera (" Cantera" ), were forcibly removed from the Providence nightclub by Atlantic City Police Officer Jones and security personnel and/or employees of Tropicana. Compl. at ¶ ¶ 29-31. Plaintiff alleges that while he was being pushed out of the nightclub, his shoe fell off. Id. at ¶ 33. Plaintiff alleges that while he " attempted to return to the interior of the nightclub . . . to retrieve his missing shoe . . . he was struck in the head with a closed fist by [d]efendant, [Officer] Michael Jones." Id. at ¶ ¶ 34-35. Plaintiff claims that Officer Jones acted without justification and was not provoked by him. Id. at ¶ 38. Plaintiff also alleges that defendants acted with deliberate indifference to his " obvious need for medical assistance" and that as a result of the attack he suffered serious and permanent injuries, including traumatic brain injuries. Id. at ¶ ¶ 41, 45.
As noted, this is defendant's " third bite at the apple." In its previous Opinion denying defendants' motions, the Court initially found that because there was no undue delay, bad faith or dilatory motives on the part of the defendants, and an absence of substantial prejudice to the plaintiffs, all within the meaning of Fed.R.Civ.P. 15, only the futility of the proposed
amendment need be considered. See June 2, 2014 Order, at 5-6. Nonetheless, the Court denied the motions, finding that defendants' proposed amended third-party claims for contribution and/or indemnification were futile because Cantera and Officer Jones were not joint tortfeasors and Cantera owed no duty to plaintiff to anticipate the actions of Officer Jones. See id., at 18-22. Atlantic City subsequently filed a motion for reconsideration [Doc. No. 60]. In that motion Atlantic City argued the Court erred in part by failing to consider plaintiff's cause of action against Cantera under New Jersey's " rescue doctrine."
Although the Court denied the motion for reconsideration, it granted Atlantic City leave to file a renewed motion to amend its pleading. See July 11, 2014 Order [Doc. 71]. The Court wanted to be confident that Atlantic City had a full and fair opportunity to brief and argue the " rescue doctrine" in view of its claim that this did not occur. Atlantic City can certainly not make the same claim now.
As stated supra, the Court now only considers the futility of the amendment. Courts deem an amendment futile if it fails to state a cause of action.
Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001). Thus, " [w]hen determining whether the amended complaint is futile, a district court uses the same standards that it considers in the context of a motion to dismiss under Fed.R.Civ.P. 12(b)(6)."
Badger v. City of Philadelphia Office of Prop. Assessment, 563 F.App'x 152, 154 (3d Cir. 2014) (citing Burtch v. Milberg Factors, Inc ., 662 F.3d 212, 231 (3d Cir. 2011)). In deciding a 12(b)(6) motion, " a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." Id. at *5 (citing Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010)).
Atlantic City contends that: (1) plaintiff does not have standing to contest the joinder of Cantera and (2) the rescue doctrine salvages its claim against Cantera. Each argument is considered in turn.
As a threshold matter, Atlantic City argues that plaintiff lacks standing to contest the futility of the proposed amendment. See Reply at 3 (citing Custom Pak Brokerage, LLC v. Dandrea Produce, Inc., C.A. 13-5592, 2014 WL 988829, at *2 (D.N.J. Feb. 27, 2014)). Atlantic City seems to argue, therefore, that if plaintiff cannot raise a futility defense, its motion must be granted. However, the Court previously stated in its June 2, 2014 Order, to procure the " just, speedy and inexpensive determination of every action and proceeding" (Fed.R.Civ.P. 1) courts may consider whether an amendment fails as a matter of law to warrant any relief. This is precisely what the Court is doing. This is consistent with Third Circuit authority that provides that if an amendment fails to state a claim upon which relief may be granted, leave to amend may be denied as futile. See In re Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). Additionally, Atlantic City neglects to recognize that the Court has discretion under Fed.R.Civ.P. 14 to determine whether joinder of a third-party defendant is appropriate. ...