The opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
COUNTRY CLUB DRIVE ASSOCIATES,
LLC,
Plaintiff,
v.
CLINTON TOWNSHIP SEWERAGE Before: Leo M. Gordon, Judge
AUTHORITY; TOWNSHIP OF CLINTON;
GREGORY WATTS, ESQ; WATTS, TICE &
Court No. 3:19-cv-20525
SKOWRONEK; NORTH HUNTERDON-
VOORHEES REGIONAL HIGH SCHOOL
DISTRICT; NORTH HUNTERDON-
VOORHEES REGIONAL HIGH SCHOOL
DISTRICT BOARD OF EDUCATION; MOTT
MACDONALD, INC.,
Defendants.
OPINION and ORDER
[Motion to file Second Amended Complaint granted in part and denied in part.]
Dated: October 30, 2024
Daniel B. Tune, Tune Law Group, LLC, of Whitehouse Station, N.J. for Plaintiff Country
Club Drive Associates, LLC.
Alan S. Pralgever and Gary L. Koenigsberg, Greenbaum, Rowe, Smith, and Davis LLP,
of Roseland, N.J. for Defendant Clinton Township Sewerage Authority.
Paul M. Bishop, Mason, Griffin & Pierson, PC, of Newark, N.J. for Defendant Clinton
Township.
Court No. 3:19-cv-20525 Page 2
Gordon, Judge1: In this action, Plaintiff Country Club Drive Associates, LLC
(“CCD”) brings claims against the township of Clinton (“Clinton”), its municipal sewer
authority (“CTSA”), and various third parties allegedly involved with or having benefitted
from the taking of Plaintiff’s rights to send 250,000 gallons per day (“GPD”) of wastewater
to a treatment facility located in the neighboring town. See Am. Compl., ECF No. 43.
Plaintiff now moves for permission to amend its complaint and file a Second Amended
Complaint including a new Count XVII for a “Fifth Amendment Taking Directly Grounded
Upon Fifth Amendment Takings Clause.” See Plaintiff’s Revised Motion to File Second
Amended Complaint, ECF No. 1142 (“Pl.’s Mot.”). Defendants CTSA and Clinton oppose.
See CTSA Resp. in Opp’n to Pl.’s Motion to Amend, ECF No. 119 (“CTSA’s Resp.”);
Clinton Township Letter Joining CTSA Opposition, ECF No. 120 (“Clinton Letter”).
Additionally, Plaintiff seeks to amend its complaint to assert tort claims against the North
Hunterdon-Voorhees Regional School High School District Board of Education (the
“Board of Education”). See Pl.’s Mot. at 10–11. For the following reasons, Plaintiff’s
motion to file a Second Amended Complaint is denied in part as to the proposed
Count XVII, but granted in part as to bringing tort claims against the Board of Education.
1 The Honorable Leo M. Gordon, Judge of the United States Court of International Trade,
sitting by designation.
2 Plaintiff’s motion is styled as a “revised” motion to amend but is largely identical to
Plaintiff’s initial motion to amend, ECF No. 113. Plaintiff explained that certain “confusion”
in the parties’ discussions and the filing process had resulted in error requiring the refiling
of the motion to amend. See Plaintiff’s Letter re: Error, ECF No. 115 (explaining basis for
filing of “amended” motion). The court views the revised motion, ECF No. 114, as
superseding and mooting the original motion, ECF No. 113. Therefore, this opinion will
dispose of the only live motion, ECF No. 114.
Court No. 3:19-cv-20525 Page 3
I. Standard of Review
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings and
provides that the “court should freely give leave when justice so requires.” Fed. R. Civ.
P. 15(a)(2). 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) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
II. Discussion
A. Proposed Count XVII
Plaintiff commenced this action with the filing of its original complaint on
November 20, 2019. See Compl., ECF No. 1. After a lengthy discovery period, Plaintiff
moved to amend its complaint to refine its claims and add new parties. See First Mot. to
Amend, ECF No. 38 (Dec. 7, 2022). After Defendants failed to file any opposition, the
court granted Plaintiff’s motion and allowed the filing of the First Amended Complaint.
See Minute Order Granting Mot. to Amend, ECF No. 42 (Feb. 8, 2023).
Now, nearly 20 months after the filing of its First Amended Complaint, “Plaintiff
seeks to amend to include a ‘gap filler’ claim directly based on the Fifth Amendment
Takings Clause.” Pl.’s Mot. at 3. Specifically, Plaintiff’s moves to add “Count XVII: Fifth
Amendment Taking Directly Grounded Upon Fifth Amendment Takings Clause,” along
with the following allegations:
Court No. 3:19-cv-20525 Page 4
215. Plaintiff CCD incorporates the allegations contained in all
prior paragraphs as if set forth at length herein.
216. Defendants took Plaintiff's property rights.
217. Defendants failed to provide Plaintiff with just
compensation for the Plaintiff’s property rights taken.
218. As a result of said failure, Plaintiff has suffered damages.
Pl.’s Proposed Second Am. Compl., ECF No. 114-1. Beyond the addition of this new
count, the remaining changes Plaintiff proposes to its First Amended Complaint are
largely technical, non-substantive edits. See generally id. (correcting caption and
defendant’s name, and adding pincites). It is clear that the “proposed amendment does
not add new parties and does not rely on events and transactions beyond which already
give rise to this lawsuit.” Pl.’s Mot. at 3.
Nevertheless, CTSA and Clinton oppose Plaintiff’s motion, arguing that Plaintiff’s
proposed amendment to add Count XVII provides nothing more than an “unnecessary
duplication of counts for ‘taking.’” See CTSA Resp. at 4–5. These Defendants further
maintain that Plaintiff’s request is unreasonable given how many years have passed since
the commencement of this action, and that this untimely and unjustified new request to
amend will generate needless expense by Defendants in responding. Id.; see also
Clinton Letter at 1–2 (“Here, the filing of an unnecessary Second Amended Complaint will
unduly delay this matter and prejudice the Township. Moreover, the Second Amended
Complaint it is futile because it provides redundant, immaterial, and impertinent
information and claims to this matter that will unduly protract this litigation.”). Specifically,
these Defendants emphasize that Plaintiff has already pled a takings claim under the Fifth
Court No. 3:19-cv-20525 Page 5
Amendment of the Constitution in Count I of its original (and First Amended) complaint.3
See CTSA Resp. at 4–5; Clinton Letter at 2; see also First Am. Compl. ¶¶ 151–155, ECF
No. 43. Defendants also contend that Plaintiff’s Count XVI for Inverse Condemnation “is
essentially a similar claim, which further amplifies precisely why a third count on the same
subject matter is not really required.” CTSA Resp. at 5; Clinton Letter at 2.
Plaintiff explains that it seeks to add this “new” claim so that Plaintiff may bring a
takings claim directly under the Fifth Amendment, rather than through the procedural
vehicle of 42 U.S.C. § 1983 (which Plaintiff acknowledges it has already alleged in Count I
of its complaint). See Pl.’s Mot. at 6–10. Plaintiff further asserts that by bringing this new
“direct” takings claim, it can avoid the obstacles presented by a variety of affirmative
3 Compare Count XVII (allegations listed supra) with Count I, which consists of the
following allegations:
151. Plaintiff CCD incorporates the allegations contained in all
prior paragraphs as if set forth at length.
152. The Fifth Amendment to the United States Constitution
provides that private property shall not be taken for public use,
without just compensation.
153. The rights of CCD with respect to the sewerage capacity
that is the subject of this action constitute a property right
under New Jersey state law, inasmuch as said rights are,
under currently enforceable agreements and applicable law,
exclusive to CCD and freely transferable on the open market.
154. The actions of the Defendants alleged hereinabove
constitute a taking of CCD’s property without just
compensation, in violation of plaintiff’s rights under the Fifth
Amendment, enforceable pursuant to 42 U.S.C. § 1983.
155. As a result of the Defendants’ actions, CCD suffered
substantial economic harm from deprivation of a valuable
property interest.
Am. Compl. ¶¶151–55, ECF No. 43.
Court No. 3:19-cv-20525 Page 6
defenses raised by the Defendants in response to Plaintiff’s takings claim under
section 1983. Id. at 9–10 (listing laches, statutes of limitations, and absolute and qualified
immunities as potential defenses inapplicable to proposed new “direct” takings claims
under Fifth Amendment). Thus, Plaintiff concludes that the court should permit the filing
of a Second Amended Complaint so that Plaintiff can “cover gaps in the unconditional
right to compensation if the court were to apply all the section 1983 exceptions to liability.”
Id. at 10.
Critically, Plaintiff suggests that it should be permitted to amend its complaint again
to include this “direct” takings claim in light of the Supreme Court’s recent decision in
Devillier v. Texas, 601 U.S. 285. Id. at 6–8. It appears that Plaintiff’s rationale is based
on the view that it could not reasonably have been aware of a “direct” takings claim when
it first filed its original and first amended complaints, and that Devillier has now opened
the door to such a claim. Devillier, however, is unavailing, as Plaintiff expressly admits
that:
Due to the circumstances of the case, because the question
presented was ‘what would happen if a property owner had
no cause of action to vindicate his rights under the Takings
Clause,’ and because the Supreme Court found that plaintiffs
had available a state cause of action for inverse
condemnation, the Supreme Court did not decide whether or
not a Takings Clause claim may be brought directly from the
Takings Clause itself without section 1983.
Id. at 8 (emphasis added and internal footnote omitted). Thus, Plaintiff cannot reasonably
suggest that the Devillier decision awakened it to some change in the law that justifies
such a late amendment of the complaint to add a novel “direct” takings claim. Plaintiff
Court No. 3:19-cv-20525 Page 7
argues that it “filed this case as a section 1983 action because [the Supreme Court
decision in Knick v. Township of Scott, 588 U.S. 180 (2019)] expressly allowed a
section 1983 takings action in federal court. However, there was no guidance how the
courts would handle limitations in section 1983 as it applied to the unconditional nature
of takings claims.” Id. at 6. Plaintiff simply describes recent developments in the case
law of takings under the Fifth Amendment, but ultimately provides no explanation for why
it could not have alleged its “direct” takings claim with its original or first amended
complaints. See Pl.’s Mot. at 6–8. Clinton and the CTSA, on the other hand, maintain
that they would suffer prejudice from the cost of having to respond yet again to a new
count in the complaint, several years after the commencement of the litigation. See CTSA
Resp. at 5; Clinton Letter at 2. The court agrees.
Despite the liberal standard for allowing Plaintiff to amend its complaint under
Rule 15(a), the court nevertheless concludes here that Plaintiff has failed to demonstrate
that it should be permitted to file its proposed Second Amended Complaint. The Third
Circuit has cautioned that “[t]he passage of time, without more, does not require that a
motion to amend a complaint be denied.” Adams v. Gould Inc., 739 F.2d 858, 868 (3d
Cir. 1984). Here, however, Plaintiff’s proposed amendment is prejudicial because it is not
only unduly delayed, but also appears to be futile as it seeks to add a redundant claim.
See CTSA Resp. at 3–5 (describing authority for courts striking redundantly pled claims);
Clinton Letter at 2 (same). Plaintiff’s arguments in support of its motion thus fail to
persuade the court to permit amendment even under the liberal standard of the rule.
Court No. 3:19-cv-20525 Page 8
B. Tort Claims Against the Board of Education
Plaintiff’s motion to amend to file a Second Amended Complaint contains an
independent second basis. See Pl.’s Mot. at 10–11 (seeking “Amendment to Assert Tort
Claims against the Board of Education Defendant”). Specifically, Plaintiff wishes to direct
against the Board of Education the tort claims already alleged as to the other Defendants.
Plaintiff seeks amendment to bring those previously pled claims into compliance with the
New Jersey Torts Claims Act with respect to the Board of Education. See id. (citing the
Torts Claims Act and specifically N.J.S.A. 59:8-8). Given that Defendant Board of
Education has filed no opposition, and in light of the liberal standard of Rule 15(a), the
court will grant Plaintiff’s motion in part to allow Plaintiff’s tort claims to proceed against
the Board of Education.
III. Conclusion
For the foregoing reasons, the court denies Plaintiff’s motion to amend the
complaint to add a new Count XVII, but grants the remainder of the motion. Accordingly,
it is hereby
ORDERED that Plaintiff’s motion, ECF No. 114, is GRANTED in part and DENIED
in part; it is further
ORDERED that Plaintiff shall file and serve its Second Amended Complaint
without Count XVII on or before Thursday November 17, 2024; it is further
ORDERED that Defendant Board of Education shall file an answer or otherwise
respond to Plaintiff’s Second Amended Complaint on or before Wednesday December 4,
2024; and it is further
Court No. 3:19-cv-20525 Page 9
ORDERED that the parties shall meet with the court via videoconference at a date
and time to be determined during the week of December 9, 2024 to discuss next steps in
the litigation.
/s/ Leo M. Gordon
Leo M. Gordon, Judge
U.S. Court of International Trade
(sitting by designation in the District of New Jersey)
Dated: October 30, 2024
Newark, New Jersey