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The Estate of Mariano Vargas v. County of Bayonne

United States District Court, D. New Jersey

February 27, 2018

CITY OF BAYONNE, et al., Defendants.


          JAMES B. CLARK, III United States Magistrate Judge.

         THIS MATTER comes before the Court on a motion by Defendants City of Bayonne, Bayonne Police Department, Police Chief Robert Kubert, Officer David McCrae, Officer Carrey, Officer Ralph Scianni, Officer Anthony Larwa, Sergeant Paul Jamolawicz, Officer John Arndt, Captain Drew Sisk, Police Director O'Donell, and Lt. Robert Desczynski (collectively “Defendants”) to amend Defendants' Answer to include a counterclaim against Plaintiff Linda G. Vargas (“Plaintiff” or “Mrs. Vargas”) [ECF No. 103].[1] Plaintiffs oppose Defendants' motion to amend [ECF No. 106]. For the reasons set forth below, Defendants' motion to amend [ECF. No. 103] is GRANTED.

         I. BACKGROUND

         This matter arises from the death of Mariano Vargas (“Mr. Vargas”) who was killed during a confrontation with the police while he was allegedly having a psychotic episode. Plaintiffs Mrs. Vargas and Lisa Russell, executor of the Estate of Mariano Vargas, (collectively “Plaintiffs”) filed this action on February 18, 2014, both individually and on behalf of the Estate alleging, inter alia, that Defendants acted in concert and conspiracy with one another, using excessive force to enter the Vargas home where they shot and killed Mr. Vargas. Am. Compl. ¶ 4. In their answer, Defendants pled twenty-four affirmative defenses, and two counterclaims denying the allegations made in Plaintiffs' Complaint, seeking contribution from Plaintiffs, and further alleging that Plaintiffs' lawsuit is frivolous. See Def.s' Answer, ECF No. 26.

         Plaintiffs' Amended Complaint alleges that Mariano Vargas started exhibiting signs of depression and mental illness approximately fifteen years ago. Am. Compl. ¶ 51. In June of 2003, Mr. Vargas was treated for mental illness after a confrontation with officers from the Bayonne and Jersey City police departments. Id. ¶ 52. Apparently, Mr. Vargas barricaded himself in his house, took his wife as hostage and threatened to harm himself with a knife. Id. ¶¶ 53, 57; see also ECF No. 107 at 2. After hours of unsuccessfully trying to persuade Mr. Vargas to surrender his knife and peacefully come outside, the police forcibly entered the Vargas' home and arrested Mr. Vargas. Am. Compl. ¶ 58-60. Subsequently, Mr. Vargas was transported to the hospital for an evaluation and treatment for mental illness. Id. ¶ 60. Thereafter, Mr. Vargas was diagnosed with paranoid schizophrenia and depression. ECF No. 103-4 at 3 (T51:16-T52:9).

         On March 21, 2012, Mrs. Vargas contacted her sister and requested that she check in on Mr. Vargas. Am. Compl. ¶ 30. Mrs. Vargas was visiting her daughter and grandchildren in North Carolina while Mr. Vargas remained home alone without any supervision. Id. Although Mrs. Vargas monitored her husband's medication, she left Mr. Vargas home “secure in the knowledge that his health, particularly his medication regimen, would continue as usual.” See ECF No. 106 at 2. However, after being unable to reach Mr. Vargas by phone, Mrs. Vargas suspected that he was not taking his psychiatric medications. Am. Compl. ¶ 30. Shortly thereafter, Bayonne police officers were dispatched to the Vargas home to perform a “welfare check.” Id. ¶ 33-36.

         According to Plaintiffs, when the Bayonne police arrived at the scene, Chief Kubert ordered at least six officers to “suit up” and put on their combat gear. Id. ¶ 39. Thereafter, several police officers entered the Vargas home through the back door. Id. ¶ 43. Within moments, shots were fired and Mr. Vargas was dead. These events give rise to the current matter.

         Presently before the Court is Defendants' Motion to Amend their Answer pursuant to Rule 15(a). Defendants seek to amend their answer to assert a counterclaim against Plaintiff Linda Vargas [ECF No. 103]. Defendants contend that Mrs. Vargas contributed to her husband's death by failing to establish an appropriate mechanism to ensure that Mr. Vargas complied with his medication regimen while she was away in North Carolina. ECF No. 107 at 1-2. Specifically, Defendants contend that Mrs. Vargas assumed the duty of ensuring that her husband adhered to his pharmaceutical regimen, and she breached that duty when she failed to prevent or warn others that her husband was engaging in behavior that was likely to endanger the safety of another.

         Plaintiffs vehemently oppose Defendants' motion for leave to amend for two reasons. First, Plaintiffs argue that Defendants' proposed amendment is futile. Plaintiffs claim that “the cause of action Defendants seek to add does not exist in New Jersey's jurisprudence.” ECF No. 106 at 1. Plaintiffs posit that “[n]either the New Jersey Legislature nor the New Jersey court have created a duty of care as Defendants allege.” Id. Finally, Plaintiffs contend that “Defendants do not and [cannot] proffer to this Court any legal, medical or other factual basis for the cause of action they seek to assert against [Plaintiff].” Id. at 7. Based on these arguments, Plaintiffs submit that Defendants' proposed amendment is futile.

         Plaintiffs also argue that the proposed amendment would prejudice Plaintiffs. According to Plaintiffs, “Defendants are attempting to impose a duty of care on Linda Vargas that is nonexistent in [Mr. Vargas'] medical and hospital records.” See ECF No. 106 at 9. Therefore, Plaintiffs contend that Mrs. Vargas would be compelled to contact Mr. Vargas' former doctors and pharmacists to collect relevant information. Lastly, Plaintiffs argue that they would have to obtain supplemental expert reports because “this bizarre duty of care is one that unquestionably merits expert legal analysis.” See Id. at 10.


         Pursuant to Federal Rule of Civil Procedure 15(a), “a party may amend its pleading only with the opposing party's written consent or the court's leave” and “[t]he court should freely give leave when justice so requires.” The decision to grant leave to amend rests within the sound discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 330 (1970). In determining a motion for leave to amend, courts consider the following factors: (1) undue delay on the part of the party seeking to amend; (2) bad faith or dilatory motive behind the amendment; (3) repeated failure to cure deficiencies through multiple prior amendments; (4) undue prejudice on the opposing party; and/or (5) futility of the amendment. See Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). In addition, “[t]he Third Circuit has consistently emphasized the liberal approach to pleading embodied by Rule 15.Endo Pharm. Inc. v. Mylan Techs. Inc., No. CIV.A. 11-220-GMS, 2013 WL 936452, at *2 (D. Del. Mar. 11, 2013). The Court should only deny leave when these factors “suggest that amendment would be ‘unjust'. . . .” Arthur v. Maersk, Inc., 434 F.3d 196, 203 (3d Cir. 2006).

         Plaintiffs do not assert that Defendants' proposed amendment is a product of bad faith, or undue delay. Rather, as noted, Plaintiffs assert that Defendants' proposed amendment is futile and that allowing the proposed amendment would be prejudicial to Plaintiffs. Initially, the Court addresses Plaintiffs' assertion that Defendants' proposed amendment is futile. A proposed amendment is considered futile if it “is frivolous or advances a claim or defense that is legally insufficient on its face.” Harrison Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D. 463, 468 (D.N.J. 1990) (citations omitted). In determining whether an amendment is insufficient on its face, the Court employs the same standard as in a Rule 12(b)(6) motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (citation omitted). Under a Rule 12(b)(6) analysis, the question is not whether the movant will ultimately prevail and detailed factual allegations are not necessary to survive such a motion. Antoine v. KPMG Corp., 2010 WL 147928, at *6 (D.N.J. Jan. 6, 2010). Nonetheless, “a pleader's obligation to provide the grounds of his entitle[ment] to relief requires more than labels [, ] . . . conclusions, and a formulaic recitation of the elements of a cause of action” and requires that the “[f]actual allegations . . . be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (citations omitted). If a proposed amendment is not clearly futile, then denial of leave to amend is improper. Meadows v. Hudson County Bd. of Elections, 2006 WL 2482956, at *3 (D.N.J. Aug. 24, 2006).

         With respect to Defendants' proposed amendment seeking to add a counterclaim against Plaintiff Linda Vargas, Plaintiffs assert that Defendants' amendment is futile because “[t]he cause of action [that] Defendants seek to add does not exist in New Jersey jurisprudence.” ECF No. 106 at 1. Plaintiffs further assert that “[n]o New Jersey statute has legislatively created a legal obligation by a spouse [wife] or third party to ensure the other ...

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