The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
ASHLEY BROWN, :
:
Plaintiff, : Civ. No. 22-3739 (RBK) (EAP)
:
v. :
:
COUNTY OF SALEM, et al., : OPINION
:
Defendants. :
____________________________________:
ROBERT B. KUGLER, U.S.D.J.
I. INTRODUCTION
Plaintiff, Ashley Brown (“Plaintiff” or “Brown”), is proceeding through counsel with a
civil complaint against the County of Salem and John S. Cuzzepe (collectively the “Defendants”)
based on incidents occurring while she was housed at the Salem County Jail. Presently pending
before this Court is Defendants’ motion to dismiss Plaintiff’s original complaint based on a lack
of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (See ECF 3).
Plaintiff has filed a motion to file an amended complaint. (See ECF 6). For the following
reasons, Plaintiff’s motion to amend is granted and Defendants’ motion to dismiss is denied.
II. FACTUAL BACKGROUND
Plaintiff’s factual allegations arise from strip searches to her person when she was housed
at the Salem County Jail. Plaintiff names the County of Salem and John S. Cuzzepe as the most
senior person to make policy for the Salem County Jail as Defendants. She brought a federal
original complaint expressly raising counts under the New Jersey Constitution, New Jersey
Statutory Law and Due Process. (See ECF 1 at 4-5). Plaintiff also alluded to Fourth Amendment
violations under the United States Constitution. (See ECF 1 at 4).
Defendants have moved to dismiss the original complaint. (See ECF 3). Defendants make
two arguments in their motion; more specifically; (1) this Court lacks subject matter jurisdiction
over the original complaint; and (2) the complaint should be dismissed based on forum non
conveniens grounds. Plaintiff then filed a motion to file an amended complaint. (See ECF 6).
Defendants oppose the motion to amend claiming this Court continues to lack subject matter
jurisdiction. (See ECF 10 at 1). Additionally, Defendants assert any amendment would be futile
because Plaintiff’s counsel recently filed a class action arising from strip searches at Salem
County Jail during the same period as Plaintiff’s purported incidents. (See id. at 1-2). Plaintiff
filed a reply in support of her motion to amend noting the federal constitutional provisions
included and alluded to in the original and now proposed amended complaint. (See ECF 12). As
to Defendants’ futility argument, Plaintiff states that “[t]he real issue Salem County raises is
whether this case should or must be stayed pending denial of class certification or on the basis of
an opt-out. [¶] Plaintiff will file a motion to consolidate/intervene so the Court may timely decide
this issue.” (See id. at 2-3). However, to date, Plaintiff has done neither.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack
of subject matter jurisdiction. A Rule 12(b)(1) motion may challenge jurisdiction based on the
face of the complaint - a facial attack - or its existence in fact - a factual attack. See Helton v.
United States, No. 22-1815, 2022 WL 17496016, at *1 (3d Cir. Dec. 8, 2022) (citing Davis v.
Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016)). A facial attack contests the sufficiency of the
pleading and the court must view the factual allegations in the complaint in the light most
favorable to plaintiff. See Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014).
“[A] facial attack calls for a district court to apply the same standard of review it would use in
considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of
the nonmoving party.” Id. Defendants’ motion to dismiss in this case involves a facial attack to
Plaintiff’s original complaint.
The standard to amend one’s complaint is liberal. Indeed, Federal Rule of Civil
Procedure 15(a)(2) states that “the court should freely give leave when justice so requires.”
However, “the decision to grant leave remains within the discretion of the District Court.” See
257 Elizabeth Ave., LLC. v. Cont'l Cas. Co., No. 12-4091, 2016 WL 452311 (D.N.J. Feb. 5,
2016) (quoting Arab African Int'l Bank v. Epstein, 10 F.3d 168, 174 (3d Cir. 1993) (internal
quotations omitted))). Where “it is apparent from the record that (1) the moving party has
demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or
(3) the amendment would prejudice the other party[,]” the Court retains the discretion to deny a
request to amend. See Fraser v. Nationwide Mutual Ins. Co., 352 F.3d 107, 116 (3d Cir. 2003).
In this case, Defendants assert that any amendment to the original complaint would be
futile. “‘Futility’ means that the complaint, as amended, would fail to state a claim upon which
relief could be granted.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citation omitted).
“In assessing ‘futility,’ the District Court applies the same standard of legal sufficiency as
applies under Rule 12(b)(6).” Id. (citations omitted).
IV. DISCUSSION
A. Motion to Amend
This Court will analyze Plaintiff’s motion to amend first as it somewhat impacts how this
Court analyzes Defendants’ motion to dismiss.
Defendants first argue this Court should deny the motion to amend because the Court
lacks subject matter jurisdiction. However, this Court has subject matter jurisdiction in this case.
Plaintiff’s proposed amended complaint clearly brings this action at least in part arguing that her
federal constitutional rights were violated (as did her original complaint) by referring to Fourth
Amendment and Due Process violations. This is sufficient to raise a federal question for
jurisdiction. See Smith v. Levine, No. 22-6391, 2022 WL 18399612, at *1 (D.N.J. Dec. 15, 2022)
(citiaton omitted) (“Federal question jurisdiction exists if the claims arise from a “right or
immunity created by the Constitution or laws of the United States.”); see also 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”).
Defendants next argue that the proposed amended complaint is futile because Plaintiff’s
counsel filed a class action complaint in this Court related to strip searches at Salem County Jail
occurring at the same time as Plaintiff’s allegations. (See ECF 10 at 2). Thus, Defendants argue
Plaintiff should proceed with her individual complaint there. (See ECF 10 at 2). However, this
argument does not show that Plaintiff’s proposed amended complaint is futile. As detailed above,
that standard requires Defendants to show that Plaintiff’s proposed amended complaint fails to
state a claim upon which relief may be granted. Furthermore, Plaintiff’s counsel indicated he
intends to file a motion to intervene/consolidate in the class action in any event. This Court
therefore rejects this additional futility argument by Defendants. Accordingly, in accordance
with Local Civil Rule 15.1(a), Plaintiff shall be ordered to file the amended complaint within
seven (7) days as her Motion to Amend will be granted.
B. Motion to Dismiss
Defendants moved to dismiss Plaintiff’s original complaint. (See ECF 3). However, an
amended complaint generally moots a motion to dismiss an original complaint. See Caredx, Inc.
v. Natera, Inc., No. 19-567, 2020 WL 8186462, at *1 (D. Del. Mar. 13, 2020) (citing Pippett v.
Waterford Dev., LLC, 166 F. Supp. 2d 233, 236 (E.D. Pa. 2001)). Nevertheless, for purposes of
completeness, this Court will briefly discuss the issues raised by Defendants in their motion to
dismiss the original complaint.
First, Defendants argue that this Court lacks subject matter jurisdiction because there is
no federal question presented. As noted above, however, Plaintiff has adequately raised a federal
question by bringing claims under the United States Constitution.
Next, Defendants assert the doctrine of forum non conveniens. They claim a more
convenient forum would be the New Jersey Superior Court in Salem County because that is
where a previous settlement agreement related to strip searches from the jail occurred. Forum
non conveniens grants relief to a defendant “when an alternative forum has jurisdiction to hear
the case, and when trial in the chosen forum would establish . . . oppressiveness and vexation to a
defendant . . . out of all proportion to the plaintiff's convenience.” Delta Air Lines, Inc. v.
Chimet, S.p.A., 619 F.3d 288, 294–95 (3d Cir. 2010) (citation omitted).
Dismissal of this case based on forum non conveniens is not appropriate. Indeed, Salem
County is close to this federal court vicinage in Camden County. See, e.g., Kenny v. Denbo, No.
16-8578, 2017 WL 65540, at *3 (D.N.J. Jan. 5, 2017) (rejecting forum non conveniens
arguments where federal court is in the same county as federal court); see also Roman-Huertas v.
Hosp. Episcopal San Lucas Guayama (D.P.R. Mar. 3, 2020) (“It is difficult, if not impossible, to
envision a case where application of forum non conveniens analysis would lead to the conclusion
that a State court is a more convenient forum for the parties than a Federal court located in the
same State or territory of the United States.”). Accordingly, for the foregoing reasons,
Defendants’ motion to dismiss the original complaint will be denied.
V. CONCLUSION
For the foregoing reasons, Plaintiff’s motion to amend is granted and Defendant’s motion
to dismiss is denied. An appropriate order will be entered.
DATED: March 1, 2023 s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge