United States District Court, D. New Jersey
K.M., AS PARENT AND GUARDIAN AD LITEM FOR N.J., MINOR PLAINTIFF, Plaintiff,
ASBURY PARK BOARD OF EDUCATION, et al., Defendants.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on a motion filed by Defendants
Asbury Park Board of Education and Barry
Ellenwood (collectively, "Defendants") to
strike Plaintiff K.M., as parent and guardian ad
litem for N.J., a minor plaintiffs ("Plaintiff)
amended complaint filed on June 10, 2019. (ECF No. 20). The
Court has decided this motion based upon the written
submissions of the parties pursuant to Local Civil Rule
78.1(b). For the reasons stated herein, Defendants'
motion is denied.
commenced this action on April 9, 2018 by filing a complaint
in the Superior Court of New Jersey, Monmouth County alleging
negligence and disability discrimination in violation of the
Rehabilitation Act, 29 U.S.C. § 794. On June 5, 2018,
Defendants removed this action to federal court on the
grounds that Plaintiff asserted a claim arising under federal
law. (ECF No. 1).
10, 2018, Defendants filed a motion to dismiss the complaint
for failure to state a claim upon which relief can be granted
pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 7). The Court
granted that motion without prejudice and granted Plaintiff
ninety days, or until November 20, 2018, to file an amended
complaint. (ECF No. 14). After Plaintiff failed to file an
amended complaint within ninety days, on April 17, 2019,
Defendants submitted a letter to the Court seeking dismissal
of the complaint with prejudice. (ECF No. 15). In response to
Defendants' letter, on May 29, 2019, the Court directed
"any party who oppos[ed] dismissal of this action [to]
submit such opposition by June 10, 2019." (ECF No. 16).
On June 10, 2019, Plaintiff filed the amended complaint. (ECF
present motion, Defendants submit that the Court should
strike the amended complaint, arguing that the amended
pleading was filed without leave of court contrary to
Fed.R.Civ.P. 15. Specifically, Defendants contend that the
amended complaint should be stricken because: (i) Plaintiff
failed to file the amended complaint within the time period
prescribed by the Court's November 20, 2018 Order
dismissing the initial complaint (ECF No. 14); and (ii) the
Court's May 29, 2019 Order did not permit Plaintiff to
file an amended complaint but rather an opposition to
dismissal only (ECF No. 16).
to Fed.R.Civ.P. 15(a), once a response to a party's
pleading is served, that pleading may be amended only by
leave of court or by written consent of the adverse party.
Fed.R.Civ.P. 15(a)(2) provides that leave to amend a pleading
shall be freely given when "justice so requires."
Id. Indeed, a general presumption exists in favor of
allowing a party to amend its pleadings. See Boileau v.
Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir. 1984)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
Leave to amend a complaint should be granted freely in the
absence of undue delay or bad faith on the part of the movant
as long as the amendment would not be futile and the opposing
party would not suffer undue prejudice. See Foman,
371 U.S. at 182; Adams v. Gould Inc., 739 F.2d 858,
864 (3d Cir. 1984).
the Court in its discretion refuses to strike Plaintiffs
amended complaint and will permit the amendment. In
opposition to Defendants' motion to strike, counsel
submits that the amended complaint was not timely filed due
to the passing of his spouse on December 26, 2018. (PI. Opp.
Br. at 2-3, ECF No. 24). Understanding the magnitude of such
a loss, the Court does not find that the counsel acted in bad
faith by failing to file the Amended Complaint within the
time period allowed.
in reviewing the Amended Complaint, the Court does not find
the amendments to be futile. For example, the Amended
Complaint includes additional allegations in support of
Plaintiff s claim arising under the Rehabilitation Act (Count
V) and asserts new causes of action, including Counts I and
IV purportedly arising under 42 U.S.C. § 1983. Finally,
Plaintiff alleges that the causes of action arise "out
of an assault, malicious beating and excessive force
perpetrated" against a seven-year-old minor. (Amended
Complaint ¶ 1). In light of these grievous allegations,
"justice so requires" that Plaintiff have an
"opportunity to test [these] claim[s] on the
merits." Fed.R.Civ.P. 15(a); Foman, 371 U.S. at
carefully reviewed and taken into consideration the
submissions of the parties; for the foregoing reasons; and
for good cause shown,
on this 6th day of November, 2019,
that Defendants' motion to strike the amended complaint
(ECF No. 20) ...