United States District Court, D. New Jersey
OPINION AND ORDER
B. CLARK, III United States Magistrate Judge.
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]. Plaintiffs oppose
Defendants' motion to amend [ECF No. 106]. For the
reasons set forth below, Defendants' motion to amend
[ECF. No. 103] is GRANTED.
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.
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
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.
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.
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.
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.
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.
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).
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,
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 ...