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Fortney v. Rutgers, State University of New Jersey

United States District Court, D. New Jersey

April 24, 2015



JAMES B. CLARK, III, Magistrate Judge.

THIS MATTER comes before the Court by way of motion of Plaintiff Asmar Fortney ("Plaintiff" or "Fortney") for Leave to Amend his Complaint to add new facts, join three defendants, add a new claim, and join a new Plaintiff. (Dkt. No. 24). Defendants Rutgers, The State University of New Jersey ("University"), Chief Carmelo Huertas and Captain Michael Rein (collectively "Defendants") oppose the motion. (Dkt. No. 30). The Court has considered Plaintiff's Motion without oral argument pursuant to Federal Rule of Civil Procedure 78. Having considered the parties' written submissions, for good cause shown, and for the reasons set forth herein, Plaintiff's Motion to Amend is GRANTED in part and DENIED in part.


Prior to the termination of his employment on or about April 3, 2014, Plaintiff was employed by the University as a police officer assigned to the Newark Division of the Rutgers University Police Department. (Dkt. No. 1, Original Complaint, Ex. A., ¶¶ 1, 41). Plaintiff alleges that Defendants terminated his employment as a Rutgers University police officer for various departmental violations without affording him an opportunity to review the evidence against him and without a hearing where Plaintiff would confront and cross-examine his accuser(s). ( Id., at ¶ 39).

On May 19, 2014, Plaintiff filed the original Complaint in the New Jersey Superior Court, Law Division, Essex County. (Dkt. No. 1, Ex. A). The action was removed to this Court on May 28, 2014. (Dkt. No. 1). Plaintiff alleges Defendants violated the Fourteenth Amendment, the Federal Civil Rights Act, 42 U.S.C. § 1983, as well as the New Jersey Constitution, the New Jersey Civil Rights Act, N.J.S.A. §§ 10:6-1, -2, the New Jersey Conscientious Employee Protection Act, N.J.S.A §§ 34:19-1, -14, the New Jersey Attorney General Guidelines on Internal Affairs, and common law. ( Id., at Ex. A).

On January 10, 2015, Plaintiff filed a motion for leave to amend his complaint seeking to (1) add new factual allegations to his federal constitutional claims; (2) join three new defendants- the University's Executive Director of Police Services Kenneth Cop ("Chief Cop"); the University's former Vice President for Administration & Public Safety James Kohl ("Vice President Kohl"); and Chief Michael Lattimore ("Chief Lattimore"), the former Chief of Newark Division of the Rutgers University Police Department; (3) join former University police officer Edward Ruff ("Ruff") as a party plaintiff, and assert various claims on his behalf; and (4) add a sixth count alleging racial discrimination under the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1, et. seq. based on information adduced during discovery. Defendants filed an opposition to this motion on February 17, 2015. (Dkt. No. 30). Plaintiff did not file a reply.


Rule 15(a)(2) of the Federal Rules of Civil Procedure provides, in pertinent part, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." FED. R. CIV. P. 15(a)(2). A general presumption exists in favor of allowing a party to amend its pleadings. Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir. 1984) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The Court may deny a motion to amend the pleadings only where there is: (1) undue delay, (2) bad faith or dilatory motive, (3) undue prejudice, (4) repeated failures to cure deficiencies, or (5) futility of amendment. Foman, 371 U.S. at 182; Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) ("We have held that motions to amend pleadings [under Rule 15(a)] should be liberally granted.") (citations omitted); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) ("Under Rule 15(a), if a plaintiff requests leave to amend a complaint... such leave must be granted in the absence of undue delay, bad faith, dilatory motive, unfair prejudice, or futility of amendment.").

Plaintiff contends that there has been no undue delay, that Defendants will not be prejudiced by the amendment, and that the amendments are not futile. Defendants, on the other hand, contend that Plaintiff's motion for leave to amend should be denied because the proposed amendments are futile.

An amendment to a complaint is considered futile if it would not survive a motion to dismiss under Rule 12(b)(6). Johnson v. Samuels, No. 06-2233, 2007 WL 1575076, at *3 (D.N.J. May 30, 2007); County of Hudson v. Janiszewski, 351 F.Appx. 662, 666 (3d Cir. 2009); In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d Cir. 2002) ("An amendment would be futile when the complaint, as amended, would fail to state a claim upon which relief could be granted.'") (internal citation omitted). 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 Pharmacal 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)); Marjam Supply Co. v. Firestone Bldg. Prods. Co., LLC, No. 11-7119 (WJM), 2014 U.S. Dist. LEXIS 46572, *9-10 (D.N.J. Apr. 4, 2014) ("The futility analysis on a motion to amend is essentially the same as a Rule 12(b)(6)."). Under this standard, the question before the Court is not whether the movant will ultimately prevail, but whether the complaint sets forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (establishing that a "court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations"); Harrison Beverage Co. v. Dribeck Importers, 133 F.R.D. 463, 468 (D.N.J. 1990) ("Futility of amendment is shown when the claim or defense is not accompanied by a showing of plausibility sufficient to present a triable issue."). A two-part analysis determines whether this standard is met. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 669 (2009)).

First, a court separates the factual and legal elements of a claim. Fowler, 578 F.3d at 210. All well-pleaded facts set forth in the pleading, and the contents of the documents incorporated therein, must be accepted as true, but the Court may disregard legal conclusions. See Iqbal, 556 U.S. at 678 (noting that a complaint is insufficient if it offers "labels and conclusions, " a "formulaic recitation of the elements of a cause of action, " or "naked assertions" devoid of "further factual enhancement").

Second, as stated above, a court determines whether a plaintiff's facts are sufficient "to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; accord Fowler, 578 F.3d at 211. As the Supreme Court instructed in Iqbal, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 556 U.S. at 678. The plausibility standard is not a "probability requirement, " but the well-pleaded facts must do more than demonstrate that the conduct is "merely consistent" with liability so as to "permit the court to infer more than the mere possibility of misconduct." Id. at 678-79 (citations and internal quotation marks omitted). This "context-specific task... requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

A court conducting a futility analysis may consider a limited record. Specifically, a court may consider only the proposed pleading, exhibits attached to that pleading, matters of public record, and undisputedly authentic documents, provided the claims are based on those documents. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); accord W. Penn Allegheny Health Sys. v. UPMC, 627 F.3d 85, 97 n.6 (3d Cir. Pa. 2010) (reiterating the rule and its limited exception for documents that ...

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