LUNA-DIAZ v. HACKENSACK POLICE DEPARTMENT

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CECILIA LUNA-DIAZ et al.,

Civil Action No. 16-cv-3270 (ES) (JAD)

Plaintiffs,

OPINION

v.

HACKENSACK POLICE

DEPARTMENT et al.,

Defendants.

JOSEPH A. DICKSON, U.S.M.J.

This matter comes before the Court on the motion of plaintiffs Cecilia Luna-Diaz,

individually and as administratrix ad prosequendum of the Estate of Elvin Diaz; Kelvi Diaz,

individually; and Julian Diaz, individually, (collectively “Plaintiffs”) for leave to file a Second

Amended Complaint. The undersigned held oral argument on the matter on March 14, 2019, and

directed the parties to submit supplemental briefing on particular issues. After carefully

considering the parties’ submissions,' and for good cause shown, and for the reasons set forth

below, Plaintiffs’ motion is DENIED.

I. RELEVANT BACKGROUND AND PROCEDURAL HISTORY

SR OE BRAINY AND FROCEDURAL HISTORY

As the parties are intimately familiar with the tragic facts surrounding this case, the Court

will incorporate by reference the facts recited in its July 25, 2017 Order granting Plaintiffs’ first

' The Court refers to Plaintiffs’ moving brief as “Pls.’ Br.,” (ECF No. 39-3); to Defendants’

opposition brief as “Defs.’ Opp’n,” (ECF No. 43); to Plaintiffs’ reply brief is referred to as “Pls.”

Reply,” (ECF No. 44); to Plaintiffs’ supplemental brief as “Pls.” Supp. Br.,” (ECF No. 49); and to

Defendants’ supplemental brief as “Defs.’ Supp. Br.,” (ECF No. 50).

motion to amend, (ECF No. 72), and will include here only those facts relevant to deciding the

present motion.

Plaintiffs are the immediate family members of the decedent, Elvin Diaz. They filed their

original Complaint on June 7, 2016, alleging constitutional rights violations against the

Hackensack Police Department and certain of its officers after officers fatally shot Elvin Diaz

during an incident at his home, where Plaintiffs also lived. (See generally Compl., ECF No. 1).

The Court held an initial pretrial conference on September 6, 2016, and entered a Pretrial

Scheduling Order setting preliminary deadlines for discovery and motions to amend. (ECF No.

11). The Court extended those deadlines several times. The deadline for motions to amend the

pleadings was extended through and including April 14, 2017, (ECF No. 17); the deadline for fact

discovery was extended through and including November 19, 2018, (ECF No. 37); and the

deadline for expert discovery was extended through and including May 5, 2019. (ECF No. 42).

On April 13, 2017, within the Court-imposed deadline, Plaintiffs moved for leave to amend

the original Complaint. (ECF No. 18). The Court granted Plaintiffs’ motion, (ECF No. 22), and

the Amended Complaint became the operative amended pleading. (ECF No. 23). Thereafter, the

parties continued to engage in discovery and the Court held periodic case management and

settlement conferences. On December 14, 2018, twenty months after the Court-imposed deadline,

Plaintiffs filed the instant motion for leave to file a Second Amended Complaint. (ECF No. 39).

Plaintiffs seek to amend the operative pleading by naming Sergeant Francesco Tripodi (“Sergeant

Tripodi”) of the Hackensack Police Department as a new defendant and by adding a new count,

Count XV. (See generally Second Am. Compl., ECF No. 46-1). Count XV alleges claims for

constitutional rights violations against Sergeant Tripodi in his individual and official capacities

pursuant to 42 U.S.C. § 1983 (“Section 1983) and its state law counterpart, N.J. Stat. Ann. 10:6-1

et seq. (the “New Jersey Civil Rights Act” or “NJCRA”).? (Id.).

Count XV presents the following factual allegations, assumed to be true for purposes of

this motion. On May 21, 2015, the date of the incident resulting in Elvin Diaz’s death, Sergeant

Tripodi received a call from Officer Manny Tavarez, a relative of Elvin Diaz, offering to meet

Defendants Sergeant Miguel Molina and Officer Ervin Hernandez at Elvin Diaz’s home. (Id. at

24, 49). Elvin Diaz suffered from a schizoaffective disorder, (id. at 5-6, {] 29), and pursuant to the

Hackensack Police Department’s guidelines on interacting with emotionally disturbed persons,

officers were to “make use of friends or relatives who know how to talk to and deal with the person

unless there is friction between them.” (Id. at 23, {1 4-6; Ex. B at II.B.9, Gerson Cert., ECF No.

39-1). Sergeant Tripodi was aware of this policy, was aware that Officer Tavarez was helpful in

a prior situation involving Elvin Diaz, and believed it was a good idea for Officer Tavarez to arrive

on the scene the day of the incident because he “knew how to talk to Elvin Diaz” and because his

presence would be in conformance with the emotionally disturbed persons policy (“EDP Policy”).

(Second Am. Compl. at 23-24, 7-9). Sergeant Tripodi did not inform Defendants Sergeant

Molina or Officer Hernandez that Officer Tavarez would be arriving to assist them in interacting

with Elvin Diaz. (Id. at 24, § 10). Unaware that Officer Tavarez would be arriving, Defendants

Sergeant Molina, Officer Hernandez, and other officers entered Plaintiffs’ home. (Id.). The

? It is Plaintiffs’ position that Count XV also contains a claim for negligence against Sergeant

Tripodi. (See Pls.’ Reply at 5, ECF No. 44). The Court hesitates to read Count XV as such. Count

XV states “[t]he aforesaid conduct constitutes negligence,” (Second Am. Compl. at 24, | 12, ECF

No. 46-1), but Count XV demands damages from Defendants based solely on the alleged

constitutional rights violations under Section 1983 and the NICRA. (Id. at 25).

> The proposed Second Amended Complaint and the parties’ related briefing contain spelling

variations of Officer Manny Tavarez’s surname. For the sake of consistency, the Court uses the

spelling of Officer Tavarez’s surname used in the proposed Second Amended Complaint.

situation escalated and officers fatally shot Elvin Diaz. (Id. at 24, 4] 11). According to Plaintiffs,

Sergeant Tripodi’s conduct constitutes negligence and a violation of Plaintiffs’ constitutional

rights pursuant to Section 1983 and the NICRA.* (Id, at 24, § 12).

Il. LEGAL STANDARD

A. Standard Applicable on Motions for Leave to Amend Under Rule 15

Federal Rule of Civil Procedure 15(a) governs requests for leave to amend pleadings and

states, in pertinent part, that a party may amend its pleading after obtaining the Court’s leave. Fed.

R. Civ. P. 15 (a)(2); see also Rivera v. Valley Hospital, Inc., No. 15-5704 (JLL), 2017 WL 916436,

at *2 (D.N.J. Mar. 8, 2017). The Rule directs that the Court “should freely give leave when justice

so requires.” Fed. R. Civ. P. 15 (a)(2). This standard ensures that claims are decided on their

merits rather than on mere technicalities. See Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir.

1990) (citing Wright, Miller and Kane, Federal Practice and Procedure, Vol. 6 § 1471 at 505 (2d

ed. 1990)).

While District Courts are vested with the broad discretion to grant or deny a motion for

leave to amend under Rule 15(a), Arab African Int’] Bank v. Epstein, 10 F.3d 168, 174 (3d Cir.

1993) (noting “the grant or denial of leave to amend is a matter committed to the sound discretion

of the district court”), they must exercise that discretion in light of “Rule 15(a)’s mandate that

amendments are to be granted freely in the interests of justice.” Voilas et al. v. General Motors

Corp., et al., 173 F.R.D. 389, 396 (D.N.J. 1997) (internal citations and quotations omitted); Foman

v. Davis, 371 U.S. 178, 182 (1962) (finding “outright refusal to grant the leave without any

justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that

discretion”). The United States Court of Appeals for the Third Circuit has interpreted that mandate

* See supra note 2 and accompanying text concerning Plaintiffs’ proposed negligence claim.

as requiring that the District Court grant leave to amend in the absence of unfair prejudice, futility

of amendment, undue delay, bad faith, or dilatory motive. Grayson v. Mayview State Hosp., 293

F.3d 103, 107-8 (3d Cir. 2002); see also Arthur v. Maersk, Inc., 434 F. 3d 196, 204 (3d Cir. 2006)

(stating that, generally, leave to amend should be granted “unless equitable considerations render

it otherwise unjust.”).

B. Implications of Federal Rule of Civil Procedure 16

While, as discussed above, courts typically resolve motions for leave to amend by applying

the liberal “when justice so requires” standard set forth in Federal Rule of Civil Procedure 15(a)(2),

there is one notable exception. When a scheduling order sets a deadline for the amendment of

pleadings and a party seeks amendment after that deadline has passed, that party must first meet

Federal Rule of Civil Procedure 16’s “good cause” standard before the Court will move on to a

Rule 15 analysis, Stallings ex rel. Estate of Stallings v. IBM Corp., No. 08-3121 (RBK) (JS), 2009

WL 2905471, at *16 (D.N.J. Sept. 8, 2009) (citations omitted). This is because motions to amend

that are filed after a scheduling order deadline has passed are treated as motions to amend the

pretrial scheduling order, see id. (citing Assadourian v. Harb, No. 06-896 (JAG), 2008 WL

4056361, at *2 (D.N.J. Aug. 28, 2008), aff'd, 430 F. App’x 79 (3d Cir. 201 1)); see also

Dimensional Comme’ns., Inc. v. OZ Optics, Ltd., 148 F. App’x 82, 85 (3d Cir. 2005) (finding that

a plaintiff must satisfy Rule 16’s “good cause” requirement if seeking to amend the complaint after

the deadline for amending pleadings has passed), and, under Rule 16(b)(4), a scheduling order may

only be modified for good cause. Fed. R. Civ. P. 16(b)(4). In these situations, the Court must

conduct a threshold “good cause” inquiry under Rule 16 because scheduling orders would

otherwise “be nullified if a party could inject amended pleadings upon a showing of less than good

cause after scheduling deadlines have expired.” Harrison Beverage Co. v. Dribeck Imps., Inc.,

133 F.R.D. 463, 469 (D.N.J. 1990); Washington v. Hovensa LLC, 652 F.3d 340 (3d Cir. 201 1)

(noting that a Magistrate Judge acted within his discretion when denying request to extend expert

deadlines where the plaintiff failed to establish good cause to modify the deadlines set out in the

operative pretrial scheduling order). Only after the party seeking a late amendment has established

“good cause” for the timing of the application will the Court evaluate the proposed amendment

under Federal Rule of Civil Procedure 15(a).

A determination of “good cause” under Rule 16 depends on the diligence, or lack thereof,

of the moving party. GlobespanVirata, Inc. v. Texas Instruments Inc., No. 03-2854 (GEB), 2005

WL 1638136, at *3 (D.N.J. July 12, 2005). “When examining a party’s diligence and whether

“good cause’ exists for granting an otherwise untimely motion to amend pleadings, courts typically

ascertain whether the movant possessed, or through the exercise of reasonable diligence should

have possessed, the knowledge necessary to file the motion to amend before the deadline expired.”

Physicians Healthsource, Inc. v. Advanced Data Sys. Int'l, LLC, No. 16-3620 (JMV), 2018 WL

3000175, at *3 (D.N.J. June 15, 2018) (collecting cases). The mere absence of prejudice to the

non-moving party does not, in itself, constitute “good cause” under Rule 16. GlobespanVirata,

2005 WL 1638136, at *3.

III. DISCUSSION

A. Analysis of Plaintiffs’ Motion Under Rule 16

As Plaintiffs sought to amend their pleading after the April 14, 2017 deadline, (see ECF

No. 17), the Court must determine, as a threshold matter, whether Plaintiffs have established “good

cause” for the timing of their amendment.

Here, Plaintiffs represent that they did not obtain a factual basis for their proposed

amendment until after they received both the EDP Policy and Sergeant Tripodi’s deposition

testimony, which, together, allegedly give rise to Plaintiffs’ theory that Sergeant Tripodi failed to

adhere to the EDP Policy and inform the officers at Elvin Diaz’s home that Officer Tavarez would

be arriving to assist them. A timeline of discovery is helpful to illustrate Plaintiffs’ position:

e The Court requires motions to amend the Complaint or add new parties be filed on

or before April 14, 2017. (ECF No. 17).

e Plaintiffs receive the Bergen County Prosecutor’s Office’s video interview of

Sergeant Tripodi in September of 2017, five months after the April 14, 2017

deadline. (Defs.’ Opp’n at 7, ECF No. 43; Pls.’ Reply at 2, ECF No. 44).

e Plaintiffs receive the EDP Policy on June 7, 2018, fourteen months after the April

14, 2017 deadline. (Pls.’ Br. at 1, ECF No. 39-3; Defs.’ Opp’n at 3, ECF No. 43).

e Plaintiffs take the deposition of Sergeant Tripodi on November 12, 2018, nineteen

months after the April 14, 2017 deadline. (Pls.’ Br. at 2, ECF No. 39-3; Ex. C,

Gerson Cert., ECF No. 39-1).

e Plaintiffs receive the deposition transcript on December 6, 2018. (Pls.’ Br. at 2,

ECF No. 39-1).

e Plaintiffs file their motion for leave to file a Second Amended Complaint on

December 14, 2018, twenty months after the April 14, 2017 deadline. (Id.)

In contrast, Defendants contend that Plaintiffs had the relevant information for their

proposed amendment by, at the earliest, September of 2017 when they received the Bergen County

Prosecutor’s Office’s video interview of Sergeant Tripodi. (Defs.’ Opp’n at 3, ECF No. 43).

Defendants claim that the video statement is identical to his deposition testimony concerning

Officer Tavarez. (Id. at 7). Defendants also contend that at the latest, Plaintiffs had the relevant

information for their proposed amendment by June 7, 2018, when Plaintiffs received the EDP

Policy. (Id. at 3).

In reply, Plaintiffs argue that Sergeant Tripodi’s video interview was not identical to his

deposition testimony, and that his deposition testimony revealed new information. (Pls.’ Reply at

3-4, ECF No. 44). For instance, Plaintiffs argue that Sergeant Tripodi’s deposition testimony

revealed, for the first time, that Officer Tavarez was helpful in diffusing a prior interaction between

police and Elvin Diaz; that Sergeant Tripodi was aware of the EDP Policy and mindful of the

Policy when speaking to Office Tavarez on the phone the day of the incident; and that Sergeant

Tripodi did not inform the responding officers to wait for Officer Tavarez before entering Elvin

Diaz’s home because “it was a welfare check” and “there was no urgency.” (Id. (citations to

deposition transcript omitted)).

The Court finds that, viewed as a whole, the record demonstrates that while Plaintiffs may

have had some basis for their proposed amendment when they received the EDP Policy on June 7,

2018, it is not unreasonable to conclude that Sergeant Tripodi’s deposition testimony “crystallized”

Plaintiffs’ theory underlying their proposed amendment. (Tr. of Mot. Hr’g 18:5-18:10, ECF No.

52). This says nothing, however, of whether Plaintiffs were diligent in discovering the necessary

information. Since the parties have more thoroughly addressed Plaintiffs’ diligence, or lack

thereof, in their futility arguments concerning the statute of limitations, and since the Court is most

interested in resolving the instant motion on its merits, the Court will decline to deny Plaintiffs’

motion on Rule 16 grounds and will instead consider whether Plaintiffs’ proposed amendment is

proper under Rule 15.

B. Analysis of Plaintiffs’ Motion Under Rule 15

As discussed above, Third Circuit jurisprudence requires this Court to grant motions for

leave to amend in the absence of unfair prejudice, futility of amendment, undue delay, bad faith,

dilatory motive, or some other equitable consideration that might render the amendment unjust.

Grayson, 293 F.3d at 107-8; Arthur, 434 F.3d at 204. Here, Defendants argue that Plaintiffs unduly

delayed in bringing the instant motion to amend and that Plaintiffs’ proposed amendment would

be futile. The Court will address each argument in turn.

1. Undue Delay

In considering undue delay, the Court notes that “[t]he mere passage of time does not

require that a motion to amend a [pleading] be denied on grounds of delay. In fact, delay alone is

an insufficient ground to deny leave to amend.” Cureton v. Nat'l Collegiate Athletic Ass’n, 252

F.3d 267, 273 (3d Cir. 2001) (internal citations omitted). Only where delay becomes “undue,”

placing an unwarranted burden on the court, or. . . ‘prejudicial,’ placing an unfair burden on the

opposing party,” would delay serve as a proper justification for denying leave to amend. Adams

v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984). The United States Court of Appeals for the Third

Circuit has acknowledged that “[dJelay may become undue when a movant has had previous

opportunities to amend a complaint.” Cureton, 252 F.3d at 273. “Thus, while bearing in mind the

liberal pleading philosophy of the federal rules, the question of undue delay requires that we focus

on the movant’s reasons for not amending sooner.” Id. (internal citation omitted). The Court

must then balance those reasons against the burdens that the movant’s delayed amendment would

impose upon the Court. Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008) (citing

Coventry v. U.S. Steel Corp., 856 F.2d 514, 520 (3d Cir. 1988)).

Here, Defendants’ undue delay argument focuses on the length of Plaintiffs’ delay, arguing

that Plaintiffs “strategically chose to ‘sit on their hands’ instead of bringing forth a timely motion

to amend.” (Defs.’ Opp’n at 11, ECF No. 43) (reiterating Rule 16 argument that Plaintiffs

possessed the relevant knowledge to amend their pleading in September of 2017, when Plaintiffs

received the Bergen County Prosecutor’s Office’s video interview of Sergeant Tripodi).

Defendants do not argue that Plaintiffs’ delay will result in any additional burden on the Court or

on the parties, nor is any such burden obvious from the Court’s review of the record. At the March

14, 2019 hearing on this motion, the undersigned confirmed with Defendants’ counsel that if the

Court were to grant Plaintiffs’ motion, there was no prejudice to Defendants because the parties

would not need to take additional discovery and there is no present concern about missing or dying

witnesses. (Tr. of Mot. Hr’g 40:21-40:45, ECF No. 52). Defendants’ counsel responded that while

the parties may need to supplement their expert reports, he did not believe further discovery would

be necessary, but that the proposed amendment would “just add[] another theory” to the case. (Id.

41:1-41:14). As mere delay is not an adequate basis for denying leave to amend, Cureton, 252

F.3d at 273, and as Defendants have acknowledged that any delay in filing the instant motion does

not prejudice the parties, the Court will not deny leave to amend on undue delay grounds.

2. Futility

A proposed amendment “‘is futile if the amended complaint would not survive a motion to

dismiss.” County of Hudson v. Janiszewski, 351 F. App’x 662, 666 (3d Cir. 2009) (quoting Alvin

y. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000)); In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332

(3d Cir. 2002) (“An amendment would be futile when ‘the complaint, as amended, would fail to

state a claim upon which relief could be granted.’”) (internal citation omitted). Therefore, “(t]he

futility analysis on a motion to amend is essentially the same as a Rule 12(b)(6) motion.” Marjam

Supply Co. v. Firestone Bldg. Prods. Co., LLC, No. 11-7119 (WJM), 2014 U.S. Dist. LEXIS

46572, *9-10 (D.N.J. Apr. 4, 2014); In re Burlington Coat Factory Sec. Litig., 114 F. 3d 1410,

1434 (3d Cir. 1997); Allah v. Bartkowski, No. 11-3153 (MAS), 2017 U.S. Dist. LEXIS 74826, *6

(D.N.J. May 17, 2017). When evaluating proposed amended claims, the Court therefore typically

evaluates whether they “contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’”” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544 (2007)). The Court notes that Defendants bear the burden of

establishing that Plaintiffs’ proposed amendments are futile, and, “given the liberal standard

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applied to the amendment of pleadings,” that burden is a “heavy” one. Pharmaceutical Sales &

Consulting Corp. v. J.W.S. Delavau Co., 106 F. Supp. 2d 761, 764 (D.N.J. 2000); accord Marjam,

2014 USS. Dist. LEXIS 46572 at *10. “Therefore, ‘[i]f a proposed amendment is not clearly futile,

then denial of leave to amend is improper.’”” Schiano v. MBNA, No. 05-1771 (JLL), 2013 U.S.

Dist. LEXIS 81440, at *45 (D.N.J. Feb. 11, 2013). The Court stresses that, in reaching this

preliminary determination, it is not making any findings regarding the merits of Plaintiffs’ claims

or Defendants’ defenses thereto.

Here, Defendants argue that Plaintiffs’ proposed amendment is futile because it is barred

by the statute of limitations and does not relate back to the original Complaint and because the

proposed amendment fails to set forth a cognizable legal claim against Sergeant Tripodi. The

Court will consider each futility argument in turn.

i. Statute of Limitations

Defendants argue that Plaintiffs’ proposed amendment would be futile, as the claims in

proposed Count XV are time-barred and are not safeguarded by Federal Rule of Civil Procedure

15(c)(3)’s relation back doctrine. (Defs.’ Opp’n at 15-17, ECF No. 43; Defs.’ Supp. Br. at 3-11,

ECF No. 50). This Court agrees.

Proposed Count XV seeks relief under Section 1983 and the NJCRA for Sergeant Tripodi’s

alleged conduct and violation of Plaintiffs’ federal and state constitutional rights. While Section

1983 “provides a federal cause of action for the violation of a federal right,” state law governs the

applicable statute of limitations to a Section 1983 claim. Dique v. N.J. State Police, 603 F.3d 181,

185 (3d Cir. 2010). “A section 1983 claim is characterized as a personal-injury claim and thus is

governed by the applicable state's statute of limitations for personal-injury claims.” Id. (citing Cito

v. Bridgewater Twp. Police Dep’t, 892 F.2d 23, 25 (3d Cir. 1989)). In New Jersey, the statute of

1]

limitations for personal injury claims is two years. Id. (citing N.J. Stat. Ann. § 2A:14-2).

Therefore, Section 1983 claims which arise in New Jersey must be brought “within two years of

the accrual of the cause of action.” Williams v. Trenton Police Dep’t, 591 Fed. App’x 56, 57 (3d

Cir. 2015) (internal citation and quotations omitted). This is also true of New Jersey state

constitutional claims asserted under the NJCRA.° Waselik v. Twp. of Sparta, No. 16-4969 (KM)

(JBC), 2017 WL 2213148, at *6 (D.N.J. May 18, 2017) (“NJCRA, like § 1983, is subject to [New

Jersey’s] general two-year personal injury statute of limitations.”) (collecting cases). While state

law governs the applicable statute of limitations to a Section 1983 claim, federal law governs when

a Section 1983 claim accrues. Dique, 603 F.3d at 185. Federal law provides that “a cause of action

accrues, and the state of limitations begins to run, when the plaintiff knew or should have known

of the injury upon which its action is based.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009)

(internal citations and quotations omitted). Rather, “a cause of action accrues at the time of the

last event necessary to complete the tort, usually at the time the plaintiff suffers an injury.” Id.

(citing United States v. Kubrick, 444 U.S. 111, 120 (1979)); see Waselik, 2017 WL 2213148, at

*4 (“For example, a Fourth Amendment claim will accrue at the time of the allegedly wrongful

search or seizure. .. . [A] § 1983 false arrest claim accrues at the time of the arrest.”). “Accrual

does not depend on whether the potential claimant knew or should have known the injury

constitutes a legal wrong.” Bayette v. Vanamburgh, No. 19-13424 (BRM), 2019 WL 6888408, at

> To the extent Plaintiffs’ proposed Count XV constitutes a claim for negligence, (See supra note

2 and accompanying text), negligence claims are also subject to a two-year statute of limitations,

N.J. Stat. Ann. § 2A:14-2 (“Every action at law for an injury to the person caused by the wrongful

act, neglect or default of any person within this State shall be commenced within [two] years next

after the cause of any such action shall have accrued.”), which generally starts to run at the time

of the alleged injury. Yarchak v. Trek Bicycle Corp., 208 F. Supp. 2d 470, 479 (D.N.J. 2002).

12

*2 (D.N.J. Dec. 17, 2019) (citing Giles v. City of Philadelphia, 542 F. App’x 121, 123 (3d Cir.

2013)).

Here, officers shot and killed Elvin Diaz inside his and Plaintiffs’ home on May 21, 2015.

(Second Am. Compl. at 4-5, 4] 20, 27 ECF No. 46-1). Plaintiffs moved to amend their First

Amended Complaint to name Sergeant Tripodi as a defendant on December 14, 2018. (See ECF

No. 39). Plaintiffs’ proposed amendment asserts Section 1983 and NJCRA claims against

Sergeant Tripodi for his alleged conduct on the day Elvin Diaz was shot—specifically, Sergeant

Tripodi’s alleged failure to act in accordance with the EDP Policy. Thus, the statute of limitations

on Plaintiffs’ claims ran two years after the date of the incident on May 21, 2015, or until May 21,

2017. As Defendants correctly argue, by the time Plaintiffs moved to amend their First Amended

Complaint on December 14, 2018, more than three years had elapsed since the May 21, 2015

incident, thereby placing Plaintiffs’ claims against Sergeant Tripodi outside the two-year statute

of limitations. (Defs.’ Opp’n at 16, ECF No. 43). Because the statute of limitations bars Plaintiffs’

proposed claims against Sergeant Tripodi, Plaintiffs’ cannot amend their complaint to add Sergeant

Tripodi as a defendant unless the proposed Second Amended Complaint relates back to June 7,

2016, the date Plaintiffs filed their original Complaint.

ii. Relation Back Under New Jersey’s Fictitious Party Rule and

Discovery Rule

Federal Rule of Civil Procedure 15(c) governs relation back of amendments and provides

that an amended pleading relates back to the date of the original pleading if relation back is allowed

under the law that provides the applicable statute of limitations. Fed. R. Civ. P. 15(c)(1)(A). As

noted above, New Jersey law provides the two-year statute of limitations on Plaintiffs’ proposed

claims. The Court must therefore look to New Jersey law to determine whether Plaintiffs’

proposed amendment relates back to the date of the original pleading. Plaintiffs invoke two

13

theories under New Jersey law—the fictitious party rule and the discovery rule—to support their

argument that the proposed amendment relates back to the date of the original Complaint. (Pls.’

Reply at 7-8, ECF No. 44; Pis.’ Supp. Br. at 1-9, ECF No. 49).

New Jersey’s fictitious party rule provides, in relevant part, that “[i]n any action . . . if the

defendant’s true name is unknown to the plaintiff, process may issue against the defendant under

a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for

identification.” N.J. Ct. R. 4:26-4. Thus, the rule “allows a plaintiff to initially name a ‘fictitious

defendant’ in place of an actual person . . . and subsequently amend the complaint to add a newly

identified party even after the statute of limitations has expired.” Carroll v. SetCon Indus., No.

10-4737, 2011 WL 736478, at *3 (D.N.J. Feb. 22, 2011) (citing N.J. Ct. R. 4:26-4). Three elements

must be met for Plaintiffs to invoke the fictitious party rule: “1) the complaint must contain a

description sufficient to identify the defendant; 2) the plaintiff must have exercised due diligence

to ascertain the defendant's true name before and after filing the complaint; and 3) application of

the fictitious party [rule] must not prejudice the defendant.” Estate of Lowther v. City of Newark,

No. 13-7244 (KM) (MAH), 2015 WL 13236826, at *2 (D.N.J. Nov. 6, 2015) (citing Ortiz ex rel.

Rivera v. City of Camden, No. 11-2300, 2013 WL 1811895, at *3 (D.N.J. Apr. 2, 2013)).

Here, both Plaintiffs’ original Complaint and Amended Complaint plead a cause of action

against fictitious defendants that reads:

[D]efendants John and Jane Does 1-10 (said names being fictitious)

were police officers and other unknown persons who were involved

in the illegal entry of the decedent’s premises, the illegal detention

of the plaintiffs, Cecilia Luna-Diaz and Kelvi Diaz, and excessive

force, i.e. shooting and killing the decedent, Elvin Diaz, and the

deprivation of each plaintiff's civil rights. .. . Defendants John and

Jane Does 1-10 (said names being fictitious) have violated

plaintiffs’ civil rights and due process rights pursuant to the New

Jersey and the United States Constitution.

14

(Compl. at 20-21, ff] 2-3, ECF No. 1; Am. Compl. at 22-23, 9 2-3, ECF No. 23). Plaintiffs contend

that this Count puts “[a]ll police officers who entered the home and had any involvement with the

decedent, Elvin Diaz... on notice of the claim.” (Pls.’ Supp. Br. at 8, ECF No. 49). These specific

acts, however—illegal entry, illegal detention, excessive force—are not the basis of the claims

against Sergeant Tripodi, and Plaintiffs acknowledge as much. (Id. at 9). Rather, Plaintiffs argue

that the Complaint should have put Sergeant Tripodi on notice of the claims against him because

he was part of the “category” of fictitious defendants that entered Plaintiffs’ home. (Id. at 8-9

(citing Lewis v. Brown, No. 04-6063 (NLH) (AMD), 2010 WL 1371939, at *5 (D.N.J. Mar. 30,

2010) (“New Jersey Civil Procedure Rule 4:26-4 permits a plaintiff to amend his complaint to

identify the proper party, as long as a John Doe fictitious designation was included for that specific

category of defendant.”))). To support this proposition, Plaintiffs rely on Sergeant Tripodi’s

November 12, 2018 deposition testimony, in which he testifies that he arrived and entered

Plaintiffs’ home on the date of the incident after hearing over the police radio that shots were fired.

(Id. at 8; Ex. C, Gerson Supp. Cert., ECF No. 49-1). Thus, Plaintiffs argue that since Officer

Tripodi was present at Plaintiffs’ home, he should have been aware that Plaintiffs would potentially

bring claims against him. (Pls.’ Supp. Br. at 9, ECF No. 49).

In opposition, Defendants argue that the “John Doe” Count for illegal entry, illegal

detention, and excessive force claims do not put Sergeant Tripodi on notice of the particular claim

against him now—the claim that he violated Plaintiffs’ constitutional rights when he allegedly

failed to act in accordance with the EDP Policy. (Defs.’ Supp. Br. at 12, ECF No. 50). Defendants

also argue that by January 19, 2017, Plaintiffs were in possession of related Hackensack Police

Department Investigation Reports connecting Sergeant Tripodi to the incident and indicating that

he had provided the Bergen County Prosecutor’s Office with a recorded video interview. (Id. at

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12). Plaintiffs received the video interview in discovery in September of 2017, three months after

the statute of limitations expired on the proposed claims against Sergeant Tripodi.

The Court is not persuaded that the fictitious party rule safeguards Plaintiffs’ proposed

amendment. The link between the described claims in the Complaint’s “John Doe” Count and

Plaintiffs’ proposed claim against Sergeant Tripodi is nebulous. Plaintiffs’ proposed claim against

Sergeant Tripodi is not that he contributed to or participated in the illegal entry of Plaintiffs’ home,

or the illegal detention of Plaintiffs, or the excessive force used against Plaintiffs. Plaintiffs’

proposed claim is that Sergeant Tripodi failed to act in accordance with the EDP Policy when he

did not notify the officers at Plaintiffs’ home that Officer Tavarez was on the way to assist. That

claim did not exist in the Complaint’s “John Doe” Count because the claim only revealed itself

further along in discovery. The fictitious party rule is not a rule that vitiates the statute of

limitations for new claims. It is a rule to protect the plaintiff when the plaintiff cannot identify the

actors in the claims originally plead. Plaintiffs repeatedly argue that the specific claim against

Sergeant Tripodi did not emerge until November of 2018, when Plaintiffs had both the EDP Policy

and Sergeant Tripodi’s deposition testimony. This is precisely why the fictitious party rule,

contemplated at the drafting of Plaintiffs’ original Complaint, does not help Plaintiffs here. The

Court will next consider whether Plaintiffs’ argument supports the application of the discovery

rule.

New Jersey’s discovery rule may toll the statute of limitations on a claim “when injured

parties reasonably are unaware that they have been injured or, although aware of an injury, do not

know that the injury is attributable to the fault of another.” Fuqua v. Bristol-Myers Squibb Co.,

926 F. Supp. 2d 538, 545 (D.N.J. Feb. 15, 2013) (quoting Baird v. American Med. Optics, 713

A.2d 1019, 1025 (N.J. 1998)). In such a scenario, “the statute of limitations begins to run when

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the plaintiff is aware, or reasonably should be aware, of facts indicating that she has been injured

through the fault of another, not when a lawyer advises her that the facts give rise to a legal cause

of action.” Baird, 713 A.2d at 1026; see also Cruz v. City of Camden, 898 F. Supp. 1100, 1113-

14 (D.N.J. 1995). This rule is “essentially a rule of equity,” and ‘“[d]etermining whether it applies

requires identification, evaluation, and weighing of the equitable claims of the parties.” Lewis,

2010 WL 1371939, at *5 (quoting Abboud v. Viscomi, 543 A.2d 29, 32 (N.J. 1988)) (internal

quotations omitted).

Plaintiffs’ discovery rule argument is similar to their Rule 16 argument. As noted above,

the deadline for Plaintiffs to amend their Complaint was April 14, 2017. The two-year statute of

limitations on Plaintiffs’ claims expired approximately one month later on May 21, 2017. While

Plaintiffs’ injury arose on May 21, 2015, the date of the incident, Plaintiffs argue that they were

not aware of the facts—specifically, the existence of the EDP Policy—supporting their theory that

Sergeant Tripodi was at fault until they received the EDP Policy on June 7, 2018. (Pls.’ Supp. Br.

at 3-4, ECF No. 49). Plaintiffs stress that it is Sergeant Tripodi’s violation of the EDP Policy that

forms the basis of the proposed claims against him. (Id. at 3). Plaintiffs’ receipt and review of the

EDP Policy then triggered Plaintiffs’ need to depose Sergeant Tripodi. (Tr. of Mot. Hr’g 29:8-

29:10, ECF No. 52).

It appears from Plaintiffs’ argument that despite propounding a notice to produce on

October 11, 2016, requesting “[a]ny and all written policies and procedures of the Hackensack

Police department in place as of May 2015,” it was not until Plaintiffs received certain deposition

testimony in February of 2018 that they were prompted to specifically request the EDP Policy in

discovery. (Pls.’ Supp. Br. at 5-6 and n.1, ECF No. 49). For instance, at the February 8, 2018

deposition of the Hackensack Police Department’s officer in charge, Plaintiffs’ counsel asked the

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officer, among other things, whether the policy on interacting with emotionally disturbed persons

is a written policy. (Id. at 5; Ex. A at 31:4-31:10, Gerson Supp. Cert., ECF No. 49-1). The officer

answered affirmatively, and Plaintiffs’ counsel responded: “I’ll ask for a copy of that policy. I

don’t believe I have it.” (Pls.’ Supp. Br. at 5-6, ECF No. 49; Ex. A at 31:12-31:18, Gerson Supp.

Cert., ECF No. 49-1).

Defendants argue, however, that “[i]f Plaintiff[s] were certain that such a policy existed for

dealing with emotionally disturbed persons, then plaintiffs’ Notice to Produce should not have

been so overbroad” with its “written policies and procedures” request, and, alternatively, Plaintiffs

could have subpoenaed or made an Open Public Records Act request for the EDP Policy earlier

than February of 2018. (Defs.’ Supp. Br. at 5, 7-8, ECF No. 50). Defendants also argue that

Plaintiffs received a report on the Bergen County Prosecutor’s Office’s video interview of Sergeant

Tripodi on January 19, 2017, which indicated that:

(1) Sergeant Tripodi had received a cell phone call from Officer

Tavera asking if he could respond to [Plaintiffs’ home address]; (2)

Sergeant Tripodi had authorized Officer Tavera to respond. . . ; (3)

Sergeant Tripodi had authorized Officer Tavera to respond since he

knew that Tavera was related to Decedent Elvin Diaz, and since

Officer Tavera had responded previously to a Suspicious Person call

concerning Elvin Diaz; and (4) that Sergeant Tripodi had informed

radio dispatch that Officer Tavera was responding to [Plaintiffs’

home address].

(Id. at 6-7). Plaintiffs subsequently received the actual video interview in September of 2017.

(Defs.’ Opp’n at 7, ECF No. 43; Pls.’ Reply at 2, ECF No. 44). Plaintiffs previously argued,

however, as part of their Rule 16 argument, that it was not until the November 12, 2018 deposition

of Sergeant Tripodi that they learned certain information for the first time that “crystallized” the

proposed claims against him—i.e., that Officer Tavarez was helpful in diffusing a prior interaction

between police and Elvin Diaz; that Sergeant Tripodi was aware of the EDP Policy and mindful

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of the Policy when speaking to Office Tavarez on the phone the day of incident; and that Sergeant

Tripodi did not inform officers to wait for Officer Tavarez before entering Elvin Diaz’s home

because “it was a welfare check” and “there was no urgency.” (See Pls.’ Reply at 3-4, ECF No.

44).

Neither party presents a particularly compelling argument on the applicability of the

discovery rule, nor does Plaintiff offer caselaw demonstrating how Courts have applied the

discovery rule in similar factual circumstances. Plaintiffs were, without question, aware of the

extent of their injuries on May 21, 2015, the date of the incident. Nonetheless, Defendants did not

produce the EDP Policy to Plaintiffs pursuant to Plaintiffs’ request for “[a]ny and all written

policies and procedures of the Hackensack Police Department in place as of May 2015” until June

7, 2018, after Plaintiffs specifically asked for it. At the same time, it took nearly two years to

investigate whether Sergeant Tripodi was at fault in some way, particularly since Plaintiffs

received the Bergen County Prosecutor’s Office’s report on Sergeant Tripodi’s video interview in

January of 2017. The Court hesitates to apply the discovery rule here where Plaintiffs could be

certain of the date of their injuries and where Plaintiffs knew of a certain level of Sergeant

Tripodi’s involvement by early 2017, prior to the expiration of the statute of limitations on May

21, 2017.

As neither the fictitious party rule nor the discovery rule is applicable to Plaintiffs’

proposed amendment, Plaintiffs’ proposed amendment is time-barred under New Jersey’s two-

year statute of limitations. The proposed amendment is also futile for the reasons set forth in the

following subsection.

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iii. Failure to State a Cognizable Legal Claim

Defendants argue that Plaintiffs’ proposed amendment would be futile because it does not

plead a cognizable claim against Sergeant Tripodi under Section 1983 or the NJCRA.®° (Defs.’

Opp’n at 13, ECF No. 43). Defendants posit two theories in support of their argument: first, that

Sergeant Tripodi’s inaction (i.e., his alleged failure to notify Defendants Sergeant Molina and

Officer Hernandez that Officer Tavarez would be arriving at Plaintiffs’ home) cannot constitute a

violation of Plaintiffs’ constitutional rights, and second, that Sergeant Tripodi’s alleged failure to

act in accordance with the EDP Policy cannot form the basis of liability for a constitutional rights

violation under Section 1983. (Id. at 13-15).

Section 1983 “provides a cause of action for any person who has been deprived of rights

secured by the Constitution or laws of the United States by a person acting under color of law.”

Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002) (citations omitted). “Thus, police officers who,

acting under color of state law, violate an individual's federal constitutional or statutory rights are

subject to liability under § 1983.” Id. ‘“[T]o state a valid claim for relief under § 1983, a plaintiff

6 Defendants do not argue that Plaintiffs’ proposed amendment fails to plead a cognizable claim

for negligence against Sergeant Tripodi. Plaintiffs take this to mean that the proposed negligence

claim survives Defendants’ futility arguments. (See Pls.’ Reply at 5, ECF No. 44). To the extent

Count XV can be read as a negligence claim, (see supra note 2 and accompanying text), the Court

has already found in the preceding section that it is barred by New Jersey’s two-year statute of

limitations, N.J. Stat. Ann. § 2A:14-2. Additionally, neither party raises whether Plaintiffs timely

served Sergeant Tripodi with a notice of a state law tort claim as required by the New Jersey Tort

Claims Act (“NJTCA”), N.J. Stat. Ann. § 59:1-1 et seq. The NJTCA “requires notice of a claim

of injury against a public entity or public employee to be presented within ninety days of the

accrual of a cause of action.” Brown v. City of Atlantic City, No. 15-6711 (RMB) (AMD), 2019

WL 4126753, at *7 (D.N.J. Aug. 30, 2019) (citing N.J. Stat. Ann. § 59:8-3) (“No action shall be

brought against a public entity or public employee under this act unless the claim upon which it is

based shall have been presented in accordance with the procedure set forth in this chapter.”). If

Plaintiffs did not file a notice of claim within ninety days of the claim’s accrual, Plaintiffs are

forever barred from recovering damages from Sergeant Tripodi on the state law tort claim. N.J.

Stat. Ann. § 59:8-8.

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must allege ‘the violation of a right secured by the Constitution and laws of the United States, and

... that the alleged deprivation was committed by a person acting under color of state law.’”

Craven v. Leach, No. 14-1860 (ES), 2015 WL 12698442, at *3 (D.N.J. Oct. 1, 2015) (quoting

West v. Atkins, 487 U.S. 42, 48 (1988)). Likewise, Section 1983’s state law counterpart, the

NJCRA, provides, in pertinent part, a private cause of action to

[a]ny person who has been deprived of any substantive due process

or equal protection rights, privileges or immunities secured by the

Constitution or laws of the United States, or any substantive rights,

privileges or immunities secured by the Constitution or laws of this

State, ... by a person acting under color of law.

N.J. Stat. Ann. § 10:6-2(c). “The NJCRA is... generally interpreted nearly identically to § 1983

and claims under the NJCRA are generally contemporaneous with and subject to the same defenses

and immunities as those brought under § 1983.” O’Neal v. Middletown Twp., No. 18-5269 (BRM)

(LHG), 2019 WL 77066, at *8 (D.N.J. Jan. 2, 2019) (citing Trafton v. City of Woodbury, 799 F.

Supp. 2d 417, 443-44 (D.N.J. 2011)). “Therefore, the Court will analyze Plaintiffs’ NJCRA claims

through the same lens of § 1983.” Id. (quoting Trafton, 799 F. Supp. 2d at 443-44) (internal

quotations omitted).

Plaintiffs do not state a cognizable claim for relief under Section 1983 or, by analogy, under

the NJCRA. Plaintiffs repeatedly argue that the basis of their proposed Section 1983 and NJCRA

claims against Sergeant Tripodi is that he failed to act in accordance with the EDP Policy, thereby

violating Plaintiffs’ constitutional rights. But the proposed amendment does not identify what

constitutional rights Sergeant Tripodi violated, nor does it establish any link between Sergeant

Tripodi’s conduct and a constitutional right. Even accepting Plaintiffs’ factual averments as true,

that Sergeant Tripodi did in fact violate the EDP Policy on the day of the incident, this is not the

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equivalent of alleging a constitutional or statutory rights violation for which Section 1983 and the

NJCRA exist to provide a cause of action.

Plaintiffs’ allegations against Sergeant Tripodi are not based on Sergeant Tripodi’s

affirmative actions, but rather on his inaction, that he did not contact Defendants Sergeant Molina

and Officer Hernandez and direct them to wait for Officer Tavarez before interacting with Elvin

Diaz. Plaintiffs contend that inaction can equate to a violation of constitutional rights when certain

“special relationship” factors exist between the state and an individual. (Pls.’ Reply at 5-7, ECF

No. 44). Though Plaintiffs do not expressly use the term state-created danger, it appears that by

citing to Van Order v. Borough of Woodstown, 5 F. Supp. 3d 676, 680-81 (D.N.J. 2014), Plaintiffs

are referring to the four factors that must be met for a state actor to be held liable for a constitutional

violation under the state-created danger doctrine. In Van Orden, the plaintiffs expressly pleaded

a state-created danger claim under Section 1983 for a violation of their Fifth and Fourteenth

Amendment rights. Id.

“The Supreme Court has long recognized that the Constitution generally confers no

affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty,

or property interests of which the government itself may not deprive the individual.” Johnson v.

Bilotta, No. 16-8879 (ES), 2018 WL 534157, at *6 (D.N.J. Jan. 23, 2018) (quoting Ye v. United

States, 484 F.3d 634, 636 (3d Cir. 2007)) (internal quotations omitted). However, there are two

exceptions to the rule that the government’s inaction cannot violate an individual’s constitutional

rights: the special relationship exception and the state-created danger doctrine. Johnson, 2018 WL

534157, at *6. For a state actor to be held liable under the state-created danger doctrine, four

elements must be met:

(1) the harm ultimately caused was foreseeable and fairly direct; (2)

a state actor acted with a degree of culpability that shocks the

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conscience; (3) a relationship between the state and plaintiff existed

such that the plaintiff was a foreseeable victim of the defendant’s

acts, or a member of a discrete class of persons subjected to the

potential harm brought by the state’s actions, as opposed to a

member of the public in general; and (4) a state actor affirmatively

used his or her authority in a way that created a danger to the citizen

or that had rendered a citizen more vulnerable to danger than had

the state not acted at all.

Van Orden, 5 F. Supp. 3d at 680-81 (quoting Henry v. City of Erie, 728 F.3d 275, 281-82 (3d Cir.

2013)); Johnson, 2018 WL 534157, at *7 (quoting Bright v. Westmoreland Cty., 443 F.3d 276,

281 (3d Cir. 2006)).

At the March 14, 2019 hearing on the instant motion to amend, the Court explored the

applicability of the state-created danger doctrine to Plaintiffs’ proposed amendment and directed

the parties to file supplemental briefing on the issue. (See generally Pls.’ Supp. Br., ECF No. 49;

Defs.’ Supp. Br., ECF No. 50). Having considered the parties’ supplemental arguments, the Court

finds that its inquiry on the issue begins and ends with whether Plaintiffs’ proposed amendment

alleges a constitutional or statutory violation pursuant to Section 1983 at all. The Court has already

found that it does not. It follows then that the state-created danger doctrine cannot save Plaintiffs’

proposed amendment here. Accordingly, Plaintiffs’ proposed amendment is futile insofar as it

fails to state a plausible legal claim under Section 1983 and the NJCRA.

IV. CONCLUSION

For the reasons stated herein, Plaintiffs’ motion for leave to file a Second Amended

Complaint, (ECF No. 39), is DENIED.

SO ORDERED

Ch. A. fade U.S.MLJ.

Hon. Esther Salas, U.S.D.J.

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