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Constantino v. City of Atlantic City

United States District Court, D. New Jersey, Camden Vicinage

November 19, 2014



JOEL SCHNEIDER, Magistrate Judge.

Plaintiff alleges that on July 21, 2012, she was assaulted by security personnel and Atlantic City police officers at Dusk nightclub in Atlantic City, New Jersey. She also alleges the security personnel and at least one police officer conspired to destroy relevant video evidence. This Opinion decides plaintiff's motion to amend and focuses on plaintiff's request to amend her complaint to substitute five (5) individuals for fictitious or John Doe parties named in the complaint. Unless plaintiff's amendment relates back to the filing date of the complaint, the amendment will be denied as futile as it is barred by the statute of limitations. The answer to the relation back question involves the interplay of Fed.R.Civ.P. 15(c)(1)(A) and (C), New Jersey Rules 4:26-4 and 4:9-3, and equitable concepts including equitable estoppel, the discovery rule, and the doctrine of substantial compliance. For the reasons to be discussed, plaintiff's motion will be GRANTED in part and DENIED in part. The Court will grant plaintiff leave to name one additional individual but will deny the request as to the other four individuals.[1]


To put the subsequent legal discussion in context, a detailed discussion of the background facts is necessary. Plaintiff commenced this action on November 1, 2013, asserting claims pursuant to 42 U.S.C. § 1983 and New Jersey tort law against the City of Atlantic City, Police Officer Sterling Wheaten, Police Officer Joseph Garofalo, "unknown Atlantic City Police Officers", Dusk nightclub, Dusk Security Manager Ron Anisette, "unknown Dusk security personnel", Dusk Management Group, Caesar's Hotel and Casino, "unknown Caesar's Casino and Hotel security personnel", Caesar's Entertainment Corporation, AC Nightlife, LLC, Gary Veloric, Red Stripe Plane Group, "John Doe in plaid shirt", and various unknown persons and corporations. See generally Compl. [Doc. No. 1]. Plaintiff claims that on July 21, 2012 she was physically assaulted and falsely arrested by defendants Wheaten, Garofalo, and other unknown defendants as she attempted to videotape, using her cell phone, Wheaten and the other officers/security personnel attack her brother at the Dusk nightclub in and around Caesar's Hotel and Casino. Id . Plaintiff alleges that after she announced she was recording the incident Wheaten seized her cell phone and assaulted her. Compl. ¶¶ 41-46. Plaintiff further alleges Wheaton then handed her cell phone to a "smaller man in a plaid shirt" who agreed to dispose of the phone. Compl. ¶ 47.

On February 18, 2014, Dusk served its Rule 26 disclosures which identified Juan Rodriguez, Matthew Jaffe, Tamron Bryant and Ramon Montero as relevant witnesses. Defs.' Br. at 8. Dusk also attached the relevant incident reports from the nightclub and stated its intention to serve video surveillance from the incident which was eventually received by plaintiff on April 28, 2014, after plaintiff informed the Court of defendant's failure to produce the video. See Bonjean Letters of April 25 and May 5, 2014 [Doc. Nos. 21, 22]. On May 15, 2014, counsel for Dusk identified "John Doe in plaid shirt" in the surveillance video as Joshua Godfrey, and also identified Bryant, Jaffe, and Rodriguez as former and current Dusk security personnel. See Defs.' Br., Ex. B [Doc. No. 39-2].[2] On June 3, 2014, after rejecting a settlement proposal from Dusk, Jennifer Bonjean, Esquire, counsel for plaintiff, asked John Underwood, Esquire, Dusk's counsel, if he would accept service of the summons and complaint for Godfrey. See Email Exchanges, Pl.'s Ex. D [Doc. No. 46-1]. Underwood did not immediately respond to Bonjean's inquiry. On June 9, 2014, Underwood provided Bonjean with Godfrey's contact information so that Bonjean could obtain a witness statement from him. See June 9, 2014 Email from Underwood to Bonjean, Pl.'s Ex. D [Doc. No. 46-1]. Bonjean alleges that on June 9, 2014 she had a 25-minute phone conversation with Godfrey during which he stated that he saw Wheaten "wrestle the phone away from the woman and scroll through it trying to delete photos or video." Pl.'s Supp. Br., Ex. B, Cooper Aff. ¶ 5 [Doc. No. 68-1]; see also Pl.'s Supp. Br., Ex. A, Taettle Aff. ¶ 7 [Doc. No. 68-1] (Underwood confirmed by telephone on June 12, 2014 that Godfrey "would provide a sworn statement admitting that he saw Defendant Officer Sterling Wheaten attempting to delete video or photos from [p]laintiff's phone.").

On July 4, 2014, Underwood responded to Bonjean's June 3 inquiry stating that he would not accept service for Godfrey as it was still uncertain if he would be representing him. See Email Exchanges, Pl.'s Ex. C [Doc. No. 46-1]. Plaintiff served Godfrey with the original complaint at his residence on July 16, 2014. See Pl.'s Reply, Ex. C (Aff. of Service) [Doc. No. 48-1]. On July 17, 2014, Underwood emailed all counsel proposed deposition dates for the "Dusk Employees." See Pl.'s Br., Ex. C (July 17, 2014 Email from Underwood to Counsel). On July 21, 2014, the two-year statute of limitations expired. On August 1, 2014, Underwood confirmed that Ramon Montero would be available for his deposition but stated he could not produce for deposition Tamron Bryant, Matthew Jaffe, or Juan Rodriguez. See Pl.'s Br., Ex. D (Aug. 1, 2014 Email from Underwood to Bonjean). On August 5, 2014, Bonjean deposed Godfrey. See Godfrey Dep. [Doc. No. 43-9]. At the deposition, Godfrey admitted he was served with the complaint on July 16, 2014 in which he was a "named defendant."[3] See Godfrey Dep. Tr. 65:13-25. However, Godfrey denied he told Bonjean during their June 9, 2014 telephone conversation that he saw Wheaten attempt to delete footage from plaintiff's phone. Id.

Plaintiff filed her motion to amend on August 10, 2014. In her proposed amended complaint plaintiff seeks to: (1) properly identify defendant Joseph Garofalo as a Dusk nightclub security officer and not an Atlantic City police officer; (2) substitute "John Doe in plaid shirt" with defendant's name, Joshua Godfrey; (3) substitute as defendants Tamron Bryant, Matthew Jaffe, Juan Rodriguez and Ramon Montero who were previously identified as John Doe "unknown Dusk security personnel"; and (4) include more specific factual allegations. As a threshold matter, Dusk does not object to plaintiff's request to identify Garofalo as a security officer rather than an Atlantic City police officer. See Defs.' Br. at 2. Dusk also does not object to plaintiff's request to include more specific factual allegations. However, Dusk claims the joinder of the proposed new defendants is barred by the statute of limitations because the claims do not relate back to the filing of the original complaint. The resolution of this issue involves the interplay between the Federal Rules of Civil Procedure and New Jersey's Civil Practice Rules, as well as several equitable doctrines. Plaintiff asks the Court to permit the addition of the five new defendants pursuant to Federal Rules of Civil Procedure 15(c)(1)(A) and (C), New Jersey's fictitious party Rule, N.J.R. 4:26-4, the general New Jersey relation back rule, N.J.R. 4:9-3, the doctrine of equitable estoppel, and the New Jersey discovery rule. As will be discussed, although plaintiff did not comply in all respects with the applicable Federal and New Jersey Rules, her motion will be granted in part. Because of her substantial compliance with New Jersey's fictitious party rule, the Court will grant plaintiff leave to name Godfrey as a defendant. The request to name the four other proposed defendants is denied.


Pursuant to Fed.R.Civ.P. 15(a), leave to amend pleadings "shall be freely given when justice so requires." Leave shall be freely given in the absence of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies in previous amendments, undue prejudice or futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). See also Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). "[A]bsent undue or substantial prejudice, an amendment should be allowed under Rule 15(a) unless denial [can] be grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment." Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (quoting Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1196 (3d Cir. 1994)). An amendment sought pursuant to Rule 15(a) shall be permitted unless it would be inequitable or futile. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002). Here, Dusk does not contend that plaintiff's amendment would cause undue delay, is made in bad faith, is based on a dilatory motive, or is repetitive of previous denials. Rather, Dusk argues plaintiff's amendment is futile because it is barred by the statute of limitations.

In determining the futility of an amendment the Court "applies the same standard of legal sufficiency as applies under Rule 12(b)(6)." Medpointe Healthcare, Inc. v. Hi-Tech Pharm. Co., 380 F.Supp.2d 457, 462 (D.N.J. 2005) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). The Court must accept as true all factual allegations contained in the proposed amended complaint and any reasonable inferences that can be drawn from them. Brown v. Phillip Morris, Inc., 250 F.3d 789, 796 (3d Cir. 2001) (citing Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993)). The factual allegations must be enough, when taken as true, to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). As will be discussed, the Court finds that plaintiff's claim as to Godfrey relates back and is therefore not barred by the statute of limitations. However, the claims against the other four individuals do not relate back and are therefore futile because they are barred by the statute of limitations.

A. The Relation Back Rules

As a preliminary matter, the Court must determine when the statute of limitations expired on plaintiff's claims. In this regard, Dusk erroneously assumes that plaintiff is asserting a § 1983 claim against it and the proposed new defendants. See Defs.' Br. at 2. However, a close analysis of the complaint reveals that plaintiff is only asserting state tort law claims against Dusk.[5] The applicable statute of limitations for these state law tort claims under New Jersey law is two years. N.J. Stat. § 2A:14-2.

The statute of limitations for an action begins to run "from the moment of the wrong." Lopez v. Swyer, 62 N.J. 267, 274 (1973). Thus, the statute of limitations on plaintiff's tort claims ran two years after the date of the incident in question on July 21, 2012, or until July 21, 2014. Plaintiff filed her motion to amend to add the new defendants on August 10, 2014, which was after the statute of limitations expired. Because the statute of limitations bars plaintiff's proposed claims, plaintiff cannot amend her complaint to add the proposed defendants unless the amended complaint "relates back" to the date the original complaint was filed.

Fed. R. Civ. P. 15(c) addresses when an amended pleading relates back to the date of a timely filed original pleading. Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 193 (3d Cir. 2001). Rule 15(c)(1) provides that an amendment to a ...

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