# K.M. v. ASBURY PARK BOARD OF EDUCATION

> District Court, D. New Jersey · November 6, 2019

URL: https://www.frixlaw.com/law-library/cases/10267004

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** November 6, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

K.M., AS PARENT AND GUARDIAN AD Civil Action No.
LITEM FORN.J., MINOR PLAINTIFF, 3:18-cv-10171 (PGS) (TJB)
Plaintiff, MEMORANDUM
AND ORDER

ASBURY PARK BOARD OF EDUCATION,
etal,
Defendants.

SHERIDAN, U.S.D.J.
This 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 plaintiff’s (“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.
I.
Plaintiff 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).

On July 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 No. 17).
In the 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).
Il.
Pursuant 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.” Jd. 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).
Here, the Court in its discretion refuses to strike Plaintiff's 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.
(Pl. 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.
Moreover, 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 Plaintiffs 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 182.

ORDER
Having carefully reviewed and taken into consideration the submissions of the parties; for
the foregoing reasons; and for good cause shown,
IT IS on this 6" day of November, 2019,
ORDERED that Defendants’ motion to strike the amended complaint (ECF No. is
DENIED, and it is further
ORDERED that Defendants’ shall respond to the amended complaint within thirty (30)
days of this Order.

(az Mauna
PETER G. SHERIDAN, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10267004. Public record. Not legal advice.