Joan Mullin v. Karen Balicki

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 16-2896

__________

JOAN MULLIN, Administratrix of the Estate of Robert

Mullin, deceased and Joan Mullin, individually

v.

ADMINISTRATOR KAREN BALICKI; ROBERT

PATERSON; DIRECTOR MARIE DUNLAP-PRYCE;

JANE BYRD, LPN; ERIN MARUSKY, R.N.; OFFICER

DIMLER; NURSE BEATRICE TEEL; KINTOCK GROUP;

COUNTY OF MERCER; JOHN DOES 4-10 (as yet

identified and unknown governmental, county, or state

officials, supervisors, agents or employees); ABC ENTITIES

1-10 (as yet identified and unknown governmental, county, or

state officials, supervisors, agents or employees)

Joan Mullin,

Appellant

______________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 3-11-cv-00247)

District Judge: The Honorable Mary Little Cooper

______________________

Argued on June 7, 2017

Before: CHAGARES, VANASKIE, and FUENTES, Circuit

Judges

(Opinion Filed: November 6, 2017)

Shelley L. Stangler, Esq. [Argued]

Law Offices of Shelly L. Stangler, P.C.

155 Morris Avenue, Suite 202

Springfield, NJ 07081

Counsel for the Appellant

Gregory R. Bueno, Esq. [Argued]

Daniel M. Vannella, Esq.

Office of Attorney General of New Jersey

25 Market Street, P.O. Box 112

Trenton, NJ 08625

Counsel for the Appellees

__________

OPINION OF THE COURT

__________

FUENTES, Circuit Judge.

A little over two years into the civil-rights suit brought

by Joan Mullin (“Mullin”) over the tragic prison suicide of

her son, Robert Mullin (“Robert”), Mullin’s attorney received

a discovery document with the potential to reshape the case.

A previously undisclosed investigative report about the night

2

Robert died contained statements by fellow New Jersey

inmates about a prison guard who allegedly refused Robert’s

requests for psychiatric assistance—and urged Robert to kill

himself instead. But while Mullin’s attorney received this

report mid-case, it was not reviewed in a timely fashion.

Instead, due to a clerical error, the disc containing the

relevant disclosures was misfiled, and not fully accessed until

about ten months later. By that time, Mullin’s operative

complaint—premised on a less direct knew-or-should-have-

known theory of Robert’s vulnerability to suicide—had

already been dismissed in large part. The District Court

denied Mullin’s request for leave to amend her complaint,

due in part to the delay caused by counsel’s error and, after

additional motion practice, granted summary judgment in

favor of the one remaining defendant, bringing the litigation

to a close.

Mullin’s appeal encompasses both the dismissal of her

operative complaint and the order denying further leave to

amend. The latter is the focus of this opinion. For the

reasons set forth below, we conclude that the decision

denying leave to amend amounted to an impermissible

exercise of discretion. Some of the factors relied upon to

deny leave are not supported by the record or are at odds with

our case law. And while we do not intend to minimize

counsel’s mistake, it does not, standing alone, support

denying leave to amend. Accordingly, we will vacate the

order denying leave to amend and will remand for further

proceedings.

3

I. BACKGROUND 1

A. Robert’s Death and Mullin’s Initial

Investigation

During the early morning hours of January 17, 2009,

New Jersey prisoner Robert Mullin hanged himself with a

bedsheet that he had fashioned into a noose. The twenty-

nine-year-old Robert had been in and out of prison for the

better part of a decade, in part due to his ongoing struggles

with substance abuse. While serving out his latest sentence at

a halfway house, Robert was found in possession of

contraband. As a result, he was transferred to New Jersey’s

Central Reception & Assignment Facility (“Assignment

Facility”), where he was assessed and assigned to an area of

the facility that did not feature extensive or individualized

supervision by staff. It was there, in his Assignment Facility

cell, that he took his own life—less than a day after entering

the Facility.

In the aftermath, Robert’s mother, Joan Mullin, sought

answers. What few were given, however, were incomplete

and at times inaccurate. In one instance, she was told that her

son had died at a completely different facility, the Trenton

Psychiatric Hospital—an error repeated on his death

certificate. Despite some slow progress, she continued to lack

key information about the final days and hours of Robert’s

life and the people and entities to whom his care was

entrusted.

1

The litigation has been unusually confusing, complex,

and—to be frank—frustrating, due in part to the swirling gyre

of overlapping motions practice. We simplify when practical.

4

B. Mullin Files the Original Complaint in

January 2011

Despite this state of affairs, Mullin filed suit in the

District of New Jersey shortly before the two-year mark of

Robert’s death, 2 raising state tort claims and constitutional

vulnerability-to-suicide claims (the latter of which is a

variation on a constitutional claim alleging deliberate

indifference to a serious medical need). The complaint

focused on the defendants’ alleged failure to provide Robert

with the level of care, treatment, and monitoring that he

needed, and that was required by prison policy for someone

with his history of depression, self-harm, and substance

abuse. Mullin alleged that Robert was placed in a cell that

was inadequately supervised and altogether inappropriate for

a person with a history of suicide attempts—a decision made

all the more inexcusable by the medical history and recent

relapse into drug addiction that his custodians failed to

properly review or otherwise heed.

Mullin named a variety of defendants, several of

whom were employed by the State of New Jersey and

represented by the New Jersey Attorney General’s office. We

will refer to these as the “State Defendants.”

C. Mullin Twice Amends Her Complaint

Mullin twice amended her complaint to both flesh out

the facts—in part to account for interim discovery she

2

Although Mullin sued both in her individual capacity and as

the administratrix of Robert’s estate, a dual role reflected in

our caption, the claims now on appeal are those brought in

her representative capacity on behalf of Robert’s estate.

5

received from non-State defendants—and to modify the list of

defendants. In particular, Mullin sought to add Officer

Nicholas Dimler, the Assignment Facility guard who,

according to the medical examiner’s report, was the last

person (who wasn’t a fellow inmate) to see Robert alive—and

the one who later discovered his body.

Mullin’s first attempt to amend, filed in response to the

defendants’ initial Rule 12 motions, was granted in part and

denied in part. Among other things, the Magistrate Judge

determined that the proposed amended complaint lacked

sufficient detail of Dimler’s involvement in Robert’s death

and did not state a plausible claim for relief against him.

Under these constraints, Mullin filed her first amended

complaint (“FAC”) in December 2011.

After obtaining additional discovery, Mullin again

asked to amend in July 2012, arguing in part that she could

now plead a viable claim against Officer Dimler. Mullin

alleged essentially that Officer Dimler knew or should have

known of Robert’s history of suicide and psychiatric illness;

that Dimler failed to review records that would have alerted

him to Robert’s condition; and that Dimler failed to follow

prison policies and reasonable practices pertaining to inmates

with Robert’s vulnerabilities. This time, the Magistrate Judge

allowed Mullin’s amendment to include the revised

allegations against Officer Dimler, finding them to be

“plausible” instead of merely possible. 3 Mullin’s Second

Amended Complaint (“SAC”), the operative complaint for

the remainder of the litigation in the District Court, was then

filed in September 2012. The SAC, like its predecessors, was

met with Rule 12 motions to dismiss.

3

Order at 7, ECF No. 101.

6

D. While the Motions to Dismiss are Pending,

Mullin Receives New Evidence in Discovery

Although Mullin had obtained some discovery by the

time the SAC was filed—almost two years into the

litigation—she had received no disclosures from the State

Defendants and, by extension, from the Department of

Corrections or the State itself. The State Defendants finally

made two separate document disclosures, pursuant to an

amended pretrial scheduling order, while their motion to

dismiss was pending. Both sets bear on Mullin’s later attempt

at amendment, although for very different reasons.

One set of disclosures, from July 2013 (the “July 2013

disclosures”), contained information on various prison

policies regarding suicide watch, close custody, and screening

procedures employed by the Assignment Facility. For

instance, Mullin received a policy manual on “Special Needs

Inmates,” covering inmates who suffer from certain

psychiatric disorders and are “unable to meet the functional

requirements of incarceration without mental health

treatment.” 4 It appears that the July 2013 disclosures did not

pertain to Robert individually or contain information relating

to the night he died.

More important was a set of disclosures from April

2013 (the “April 2013 disclosures”) that, by contrast,

contained information directly relevant to Robert and his

history in the prison system. Among the new revelations

were statements from fellow inmates about a prison guard

4

JA 1015.

7

who allegedly ignored Robert’s requests for mental health

services and, instead, told him to commit suicide.

These statements were contained in a February 2009

Department of Corrections Administrative Investigation

Report (“the Report”). According to the Report, a previously

unknown guard, Officer X, 5 interacted with Robert over his

only evening at the facility, and may have been the last

person (instead of Officer Dimler) to see Robert alive. The

details of Officer X’s interaction with Robert, as related in the

Report, were very disturbing. Six inmates, who had been

interviewed about Robert hours after his suicide—close in

time to the incident, and potentially before having any

opportunity to get their stories straight—volunteered that they

had heard Robert ask Officer X to see “psych,” and that

Officer X had refused Robert’s request and taken no action.

Three of the inmates went further: Officer X not only refused

assistance, but egged Robert on, telling him that he “might as

well kill [him]self.” 6 The Report therefore suggested Officer

X’s actual awareness of, and indifference to, Robert’s

condition. The Report elsewhere revealed that Robert was in

fact classified as a “special needs” inmate requiring enhanced

levels of care. 7 Thus, although Officer X, interviewed later,

flatly denied both parts of this account, the Report had the

potential to reframe and support Mullin’s case.

5

Because the guard is not currently a party and might not

become one, his name is redacted in this opinion.

6

JA 986.

7

JA 989.

8

E. Counsel’s Error: The April 2013 Discovery is

Misplaced

But this potential would go untapped—at least for the

time being—because Mullin did not initially know that it had

been received. The April 2013 material was subdivided and

Bates stamped as “DOC MULLIN 0001–392” and

“CONFIDENTIAL MULLIN 0001–305.” 8 Due to a clerical

error, Mullin’s attorney failed to review the

CONFIDENTIAL MULLIN material that contained the

Report and other relevant documents. The disclosures had

been provided by the State Defendants on two optical discs,

one for the MULLIN material and the other for the

CONFIDENTIAL MULLIN material. The attorney asked her

staff to print out both discs for review, but one disc was

printed twice and the other was misfiled in the folder of an

unrelated matter. And because Mullin’s attorney was not

aware of the new material, she did not move to further amend

her complaint, even though an earlier scheduling order had

suggested that further amendment for truly “new” discoveries

might be allowed.

F. The District Court Dismisses the SAC

With Mullin unaware of the new discovery, the SAC—

whose allegations were premised on the theory that the

defendants should have known, based on Robert’s answers to

intake questions and his transfer/medical records, that he was

particularly vulnerable to suicide—remained the operative

complaint. Thus, unlike prior motions to dismiss, which had

been interrupted by Mullin’s requests to amend, these Rule 12

8

JA 1098.

9

motions were resolved on the merits, with the District Judge

directly addressing Mullin’s claims for the first time. In a

November 2013 decision, the District Court granted the State

Defendants’ motion to dismiss in its entirety, although the

Court allowed Mullin’s claims against the Assignment

Facility intake nurse to proceed to summary judgment and,

thus, the case remained ongoing. 9

G. Realizing the Mistake, Counsel Moves to

Amend

Despite indications that something was missing,

Mullin’s attorney only realized her mistake in February

2014—ten months after the April 2013 disclosures, and three

months after the District Court had dismissed the SAC in

large part—during a conversation with attorneys for non-state

defendants who were privy to the CONFIDENTIAL

MULLIN material. In the flurry of activity that followed,

Mullin’s attorney advised the District Court of her mistake

and, after being told by the court to delay formally moving to

amend until a pending reconsideration motion was resolved.

Mullin moved in August 2014 to amend her complaint to

include information from the April and July 2013 disclosures.

In addition to repleading claims against Dimler and other

previously dismissed defendants, Mullin’s proposed Third

Amended Complaint (“TAC”) incorporated the material from

9

See Mullin v. Balicki, No. 11-247, 2013 WL 5935998, at *6

(D.N.J. Nov. 1, 2013). The halfway house itself, which had

been named as a defendant but did not file a Rule 12 motion,

also remained in the case through November 2015, when it

entered into a stipulation of dismissal.

10

the April and July 2013 disclosures and added Officer X, a

fellow guard, and four supervisors as defendants.

H. Leave to Amend is Denied

The presiding Magistrate Judge denied leave to amend,

finding that Mullin’s delay was undue and that the defendants

would suffer prejudice if amendment were allowed. The

Judge also suggested in passing that claims against new

parties would not “relate back” for limitations purposes under

Rule 15(c). The Magistrate Judge did not directly address the

futility of the proposed amendment, which had not been

raised by the State Defendants. After Mullin objected to the

Magistrate Judge’s order, the District Court affirmed it in a

short decision. 10 Mullin timely appealed.

10

See JA 80–85, 2015 U.S. Dist. LEXIS 90384.

11

II. DISCUSSION 11

11

We have jurisdiction under 28 U.S.C. § 1291. Mullin’s

appeal challenges the dismissal of the SAC (per Officer

Dimler only) and the subsequent denial of reconsideration, in

addition to the order denying further leave to amend. The last

of these, which was the only topic addressed at oral argument,

is discussed at length above the margin; the first two are

summarily resolved in this note.

With regard to the order dismissing the SAC, we have

reviewed the District Court’s dismissal decision against the

backdrop of Palakovic v. Wetzel, 854 F.3d 209 (3d Cir. 2017),

which clarified our vulnerability-to-suicide precedent but was

decided after the District Court issued its opinion in this case.

Having the benefit of the parties’ supplemental briefing, we

are satisfied that the District Court correctly dismissed the

constitutional and state-tort claims against Officer Dimler for

substantially the reasons set forth in that Court’s opinion. We

particularly agree that, when pleading a vulnerability-to-

suicide claim, an allegation that a defendant “knew or should

have known” of a prisoner’s vulnerability is a conclusory

recitation of the knowledge element of the underlying cause

of action, and cannot meet the plaintiff’s pleading burden

without additional facts showing (or allowing the reasonable

inference of) knowledge or the responsibility to know. See

Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (per

curiam).

In light of our leave-to-amend disposition, we need not reach

the order denying reconsideration, which was premised

largely on the new discovery evidence probative of the

12

A. Rule 15 and Standard of Review

Leave to amend is governed by Rule 15, “Amended

and Supplemental Pleadings,” which generally conditions

amendment on the court’s leave or the opposing party’s

written consent. 12 Lacking a time limit or an outer bound on

when amendment is permissible, the Rule instructs courts to

“freely give leave [to amend] when justice so requires.” 13

This liberal amendment regime helps effectuate the “general

policy embodied in the Federal Rules favoring resolution of

cases on their merits.” 14

In determining whether leave to amend might

reasonably be denied, courts are guided by the Foman factors,

named for the Supreme Court’s decision in Foman v. Davis,

371 U.S. 178 (1962). Denial of leave to amend can be based

on undue delay, bad faith or dilatory motive on the part of the

movant; repeated failure to cure deficiencies by amendments

previously allowed; prejudice to the opposing party; and

futility. 15 The Foman factors are not exhaustive, allowing a

court to ground its decision, within reason, on consideration

request for amendment. Accordingly, both the order

dismissing the SAC and the order denying reconsideration

will be affirmed.

12

See Fed. R. Civ. P. 15(a)(2).

13

Id.

14

Island Creek Coal Co. v. Lake Shore, Inc., 832 F.2d 274,

279 (4th Cir. 1987) (internal quotation marks and citation

omitted).

15

Foman, 371 U.S at 182; see also United States ex rel.

Schumann v. AstraZeneca Pharm. L.P., 769 F.3d 837, 849

(3d Cir. 2014).

13

of additional equities, such as judicial economy/burden on the

court 16 and the prejudice denying leave to amend would cause

to the plaintiff. 17 All factors are not created equal, however,

16

See USX Corp. v. Barnhart, 395 F.3d 161, 167–68 (3d Cir.

2004).

17

See Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th

Cir. 1998).

As they did before the District Court, the State Defendants

suggest that the liberal amendment standard should not apply

with its ordinary force because Mullin did not seek leave until

after “judgment” had been entered—meaning, in this case, the

order granting the pending motions to dismiss in large part.

State Defs. Br. 26. They refer to a line of cases in which we

explained that “[w]hen a party seeks leave to amend a

complaint after judgment has been entered, it must also move

to set aside the judgment pursuant to Federal Rule of Civil

Procedure 59(e) or 60(b), because the complaint cannot be

amended while the judgment stands.” Jang v. Boston Sci.

Scimed, Inc., 729 F.3d 357, 367–68 (3d Cir. 2013); see also

Ahmed v. Dragovich, 297 F.3d 201, 207–08 (3d Cir. 2002).

The “judgment” in that line of cases, however, meant a final

or appealable order. See Cureton v. Nat’l Collegiate Athletic

Ass’n, 252 F.3d 267, 272–73 (3d Cir. 2001). But here,

judgment had not been entered at the time Mullin moved to

amend, as the case was still ongoing against the intake nurse

and the District Court had not otherwise solemnized its Rule

12 decision into a judgment by using Rule 54(b). Jang,

Cureton, Ahmed, and other decisions in this line are thus

distinguishable from this case, and no formal post-judgment

standard applies (although these concerns can of course still

be considered).

14

as “prejudice to the non-moving party is the touchstone for

the denial of an amendment.” 18

A decision on whether to permit amendment of the

pleadings generally falls within the District Court’s

discretion. It follows that we review for abuse of that

discretion, except where amendment is denied for legal

reasons drawing de novo review (such as when the proposed

amendment would fail to state a claim). 19 If we find an error

in the District Court’s reasoning, we exercise our own

discretion in determining whether we will nevertheless affirm

“if . . . the District Court’s [remaining] findings would

support denial of leave to amend.” 20

While abuse of discretion is ordinarily a deferential

standard of review, it has bite in this context; the District

Court’s discretion, circumscribed by the Rule 15’s directive

in favor of amendment, must be “exercised within the context

of liberal pleading rules.” 21 Moreover, leave to amend is not

an all-or-nothing proposition. Relying on the Foman factors,

courts can choose instead to impose reasonable conditions on

the right to amend in lieu of a pure grant or denial.

18

Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006)

(internal quotation marks and citation omitted).

19

See Schumann, 769 F.3d at 849.

20

Maersk, 434 F.3d at 204.

21

Berkshire Fashions, Inc. v. The M.V. Hakusan II, 954 F.2d

874, 886 (3d Cir. 1992); see also Martin’s Herend Imports,

Inc. v. Diamond & Gem Trading United States of Am. Co.,

195 F.3d 765, 770 (5th Cir. 1999) (explaining that

“discretion” is misleading because of the “bias in favor of

granting leave to amend” (internal quotation marks and

citation omitted)).

15

Specifically, a court “may use its discretion to impose

conditions on the allowance of a proposed amendment as an

appropriate means of balancing the interests of the party

seeking the amendment and those of the party objecting to it,”

such as by “narrow[ing] the scope of the amendment if it

considers the request too broad.” 22

One additional background consideration applies in

civil rights cases like this one. In our Circuit, “district courts

must offer amendment [in civil rights cases]—irrespective of

whether it is requested—when dismissing a case for failure to

state a claim unless doing so would be inequitable or futile.”23

By contrast, plaintiffs in “ordinary” civil litigation—

commercial disputes, for instance—must take affirmative

steps to obtain amendment in the face of dismissal. 24

B. Analysis

Although the District Court gave reasons of its own

when declining to set aside the Magistrate Judge’s order, we

are really reviewing the Magistrate Judge’s exercise of

discretion in entering the order, and not the District Court’s

deferential review of the same. Accordingly, we will focus

22

Wright & Miller § 1486; see also Garfield v. NDC Health

Corp., 466 F.3d 1255, 1271 (11th Cir. 2006) (“[T]he granting

of leave to amend can be conditioned in order to avoid

prejudice to the opposing party.” (internal quotation marks

and citation omitted)).

23

Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc.,

482 F.3d 247, 251 (3d Cir. 2007); see also Estate of Lagano

v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 861 (3d

Cir. 2014).

24

See Fletcher-Harlee, 482 F.3d at 252–53.

16

our review on the Magistrate Judge’s analysis of the Foman

factors.

1. Undue Delay

The “undue delay” factor recognizes that a gap

between when amendment becomes possible and when it is

actually sought can, in certain circumstances, be grounds to

deny leave to amend. While simple delay cannot justify

denying leave to amend by itself, delay that is “undue”—a

delay that is protracted and unjustified—can place a burden

on the court or counterparty, or can indicate a lack of

diligence sufficient to justify a discretionary denial of leave. 25

As there is “no presumptive period in which . . . delay

becomes ‘undue,’” 26 the “question of undue delay requires

that we focus on the movant’s reasons for not amending

sooner” while “bearing in mind the liberal pleading

philosophy of the federal rules.” 27 “Following this principle,

we have refused to overturn denials of motions for leave to

25

See Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266

(3d Cir. 2008); Cureton v. Nat’l Collegiate Athletic Ass’n,

252 F.3d 267, 273 (3d Cir. 2001).

26

Maersk, 434 F.3d at 205. In Maersk, we suggested that an

eleven-month delay, as measured from “commencement of an

action,” would not generally be “undue” by itself. See

Maersk, 434 F.3d at 205. As discussed more fully below,

there are two periods of delay here, the longer of which can

be measured to run ten months. Although neither period of

delay would be presumptively undue if measured from the

beginning of a lawsuit, the reasoning of Maersk may not

apply with equal force to delays measured from a different

point in an already long-running lawsuit.

27

Cureton, 252 F.3d at 273.

17

amend where the moving party offered no cogent reason for

the delay in seeking the amendment.” 28

The Magistrate Judge broke down the delay in this

case into two discrete periods. First, the Judge assessed the

delay arising from the July 2013 “policy” discovery, which

Mullin’s counsel consciously chose not to use in an earlier

amendment. Second, the Judge assessed the more-significant

delay arising from the misplaced April 2013 discovery, which

counsel was not aware of until February 2014.

i) July 2013 Discovery

Mullin’s attorney argued that her reasons for declining

to amend immediately upon receiving the July 2013

discovery were reasonable, and that the delay before she first

brought the material to the Court’s attention was thus not

undue. 29 She explained that she received the discovery after

the return date for the motions to dismiss, assumed the period

for requesting amendment was closed, and further assumed

that the Court would not reopen the record. Counsel also

argued that amending was unnecessary. She believed that the

SAC’s description of various policies and procedures was

enough to survive the motions to dismiss, and that the

meaning of the various policies of procedures would become

clearer after she had received additional discovery.

28

CMR D.N. Corp. v. City of Phila., 703 F.3d 612, 629 (3d

Cir. 2013).

29

We assume, as the Magistrate Judge appears to have

decided, that the relevant delay is from July to November,

which is when Mullin brought the July 2013 discovery to the

Court’s attention via her motion for reconsideration

18

The Magistrate Judge found these reasons to be

unconvincing, explaining that the closing-of-the-record point

was “difficult to understand,” as “[Mullin] has not refrained

from seeking leave from the Court for various reasons.” 30 The

Magistrate Judge also thought that counsel’s delay was

impermissibly “tactical,” resulting in “waiting until the

Motions to Dismiss were largely granted, and then asking for

a ‘do-over.’” 31 Deciding that this delay was not supported by

a cogent reason, the Magistrate Judge deemed it “clearly

undue.” 32

We disagree in part with the Magistrate Judge’s

reasoning, and in particular with suggestion that counsel’s

“tactical” decision transformed the delay into one that was

undue. While we have disdained a wait-and-see approach to

amendment, our major cases doing so fall in the post-

judgment posture discussed above. 33 More recently, we have

cautioned against overreading the scope of some of those

earlier cases. 34 Further, the decisions spurning a wait-and-see

approach are “standard” civil disputes. 35 This, by contrast, is

30

JA 73.

31

JA 74.

32

JA 74.

33

See supra note 17; see, e.g., Jang, 729 F.3d at 368; In re

Adams Golf, Inc. Sec. Litig., 381 F.3d 267, 280 (3d Cir. 2004)

(addressing unjustified two-and-a-half-year delay).

34

See United States ex rel. Customs Fraud Investigations,

LLC. v. Victaulic Co., 839 F.3d 242, 252 (3d Cir. 2016)

(distinguishing, among other things, Jang and Adams).

35

Jang is a contract case, see 729 F.3d at 359; Adams is a

securities case, see 381 F.3d at 270; and California Public

Employees’ Retirement System v. Chubb Corp., 394 F.3d 126

19

a civil rights case, with the attendant requirement in our case

law that an opportunity to amend be presumed. In the

ordinary course, a civil rights plaintiff would not expect a

modest wait-and-see approach to constitute undue delay by

itself—unless egregious or excessive, or if some other factor

rendered the delay undue.

Our normal civil rights rule is put to the test in this

matter, however, given the sheer complexity of the

proceedings, as well as the fact that Mullin was previously

granted leave to amend. 36 It is certainly reasonable to think

that there may be some situations where a civil rights

plaintiff’s pre-dismissal actions, or a court’s informal testing

of the merits of the pleading, might count against granting

amendment. But this case does not present such a situation.

For one, although Mullin amended twice before, the second

amendment (leading to the SAC) can be viewed as a

perfection of the first, partially unsuccessful amendment. 37

For another, her pleadings had never actually been formally

evaluated by the District Court, and “the mere fact that a

defendant files a motion to dismiss is not necessarily

(3d Cir. 2004), is a “securities class action lawsuit,” id. at

134.

36

See Customs Fraud, 839 F.3d at 252 (“In none of the cases

the District Court relied upon did we uphold a dismissal with

prejudice where the plaintiff had been given no opportunity to

amend its complaint and would not be given an opportunity to

amend in the future.” (emphasis added)).

37

Cf. Bower v. Jones, 978 F.2d 1004, 1010 (7th Cir. 1992)

(favoring amendment despite prior amendments when party

acquired newly discovered documents and did not delay in

seeking amendment).

20

sufficient to put a plaintiff on notice that the court will find

his complaint to be deficient.” 38

Perhaps most important is that the SAC was informally

tested on the merits before the motion to dismiss was

resolved—and received a clean bill of health from the same

Magistrate Judge, who opined that it passed muster under

Twombly/Iqbal. 39 The Magistrate Judge’s decision was, of

course, not binding on the District Court, let alone on us. But

it does suggest that Mullin’s “tactical” approach to the

dismissal cannot be fairly called dilatory or contumacious, in

light of the solicitude given in civil rights cases and the prior

suggestion from the Magistrate Judge that the motion to

dismiss would fail.

ii) April 2013 Discovery

The April 2013 discovery—the disclosures containing

the Report—presents a thornier problem. About ten months

passed between the time the State Defendants sent Mullin’s

attorney the April 2013 disclosures and the time the attorney

realized that she had misplaced and failed to review them.

Certainly, Mullin had a “reason” for not amending sooner:

she was unaware of the evidence that she had been

provided. 40 The issue is whether this can suffice as a reason at

all. We will, for the moment, disregard the issue of prejudice

and instead look to whether, prejudice notwithstanding, the

delay was “undue.”

38

Customs Fraud, 839 F.3d at 249.

39

Order at 7, ECF No. 101.

40

See Langbord v. U.S. Dep’t of Treasury, 832 F.3d 170, 188

(3d Cir. 2016) (en banc), cert. denied, 137 S. Ct. 1578 (2017).

21

In addressing counsel’s error, the Magistrate Judge

focused on the “many opportunities plaintiff had to realize

that the disc was missing and to follow up or at least make

inquiry,” stating further that “no inquiry was made until

counsel for defendants made Plaintiff’s counsel aware of the

oversight during a conversation in February 2014.” 41 Several

“clues” should have alerted counsel to the missing discovery:

(1) the initial April 2013 cover letter, which referred to the

production of confidential materials; (2) the subsequent

production in July 2013 of additional CONFIDENTIAL

documents with bates numbers following the “missing”

range, which should have indicated that the “missing” range

had already been provided 42; and (3) an October 2013

interrogatory response that pointed to the Report but did not

separately provide it. The Magistrate Judge concluded that

counsel’s “lack of diligence” was to blame, given the

“repeated opportunities and repeated clues” that “should have

made a diligent attorney aware that something was missing”;

that there was “no inquiry made . . . leads to the inescapable

conclusion that the [April 2013 discovery] delay was in fact

undue.” 43

Beginning with this last point, the record does not

entirely support the Judge’s conclusion that Mullin’s attorney

failed to make “inquiries.” To the contrary, she continued to

ask the Attorney General’s office for relevant discovery; the

41

JA 75.

42

The April 2013 production of confidential materials had a

Bates stamp range of 0001-0305, and the July 2013

production of confidential material had a bates stamp range of

0306-0918. JA 887, 889

43

JA 76.

22

record contains, for instance, a June 2013 email to the

Attorney General where counsel complains that nothing

relevant to her constitutional claims has been obtained from

the State Defendants. 44

However, the central question is whether this is the

sort of error by an attorney that can be excused. The

Magistrate Judge indicated only that the error “should not be

excused,” 45 but, as explained below, something more is

required.

It is well established that “clients must be held

accountable for the acts and omissions of their attorneys.”46

In some circumstances, the Federal Rules allow for a court to

relieve a party from adverse consequences arising out of

“mistakes” or “excusable neglect,” which are often not the

party’s but the attorney’s. 47 In that context, we have

conducted an “equitable” inquiry into the circumstances

44

See JA 689. We note that, if the October 2013 interrogatory

response referring to the Report is the point where a

reasonable attorney should have been alerted to the missing

discovery, it may have been appropriate to measure the delay

from the time of reasonable discovery as opposed to the

moment when the initial error occurred, depending on

whether the error was in fact excusable.

45

JA 76.

46

Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507

U.S. 380, 396 (1993).

47

See, e.g., Fed. R. Civ. P. 60(b)(1) (allowing for relief from

a final judgment on the basis of “mistake, inadvertence,

surprise, or excusable neglect”); Fed. R. App. P. 4(a)(5)

(allowing for extension of time to appeal a notice of appeal

when a party shows “excusable neglect or good cause”).

23

surrounding a party’s failure, balancing the factors of

prejudice to the non-movant, the length of the delay, the

reason for the delay, and the movant’s good faith. 48

While misunderstandings based on law or procedure

rarely constitute excusable neglect, clerical errors have been

found to do so, taking “into account whether the mistake was

a single unintentional incident (as opposed to a pattern of

deliberate dilatoriness and delay), and whether the attorney

attempted to correct his action promptly after discovering the

mistake,” as a “mistake could occur in any attorney’s office,

no matter how well run.” 49 An omission caused by

carelessness, even if within counsel’s control, may therefore

be excusable. 50

Rule 15, which governs amendment, does not mention

excusable neglect or mistake, but this is in line with Rule 15’s

general omission of any enumerated substantive or procedural

limitation on amendment. And based on the similarities

between the Rule 15 test and the excusable neglect analysis,

mistakes, omissions, or neglect, should be evaluated with

48

Ragguette v. Premier Wines & Spirits, 691 F.3d 315, 319,

325 (3d Cir. 2012); see also Jennings v. Rivers, 394 F.3d 850,

857 (10th Cir. 2005) (“An additional consideration is whether

the . . . underlying claim is meritorious.”). This equitable test

is not at all dissimilar from the Rule 15 amendment inquiry.

As a result, some courts use the same analysis in determining

whether a Rule 15 delay is undue. See, e.g., Gregory v.

Mitchell, 634 F.2d 199, 203 (5th Cir. 1981).

49

Jennings, 394 F.3d at 857 (internal quotation marks,

alterations, and citations omitted).

50

See Cheney v. Anchor Glass Container Corp., 71 F.3d 848,

849–50 (11th Cir. 1996).

24

similar solicitude under Rule 15 as they would be under a

Rule with an explicit “excusable neglect” condition.

Here, even assuming the worst—that the delay ran at

least ten months, and that Mullin’s attorney failed to realize

the error despite clues to the contrary—we cannot say that the

mistake here was per se inexcusable, rendering the delay

“undue.” It was apparently the result of a single core error,

the kind that could affect any law firm no matter how well

run; there is no indication of any similar error elsewhere in

the litigation; and the defense has not shown a pattern of

similar faults or omissions.

Neither the State Defendants nor the District Court

questioned the attorney’s story that a clerical error led to the

CONFIDENTIAL MULLIN materials being misplaced and

misfiled. The record prior to March 2014 betrays no

indication that Mullin or her attorney was aware of the Report

or the related materials; as late as November 2013, Mullin’s

attorney referred to the April 2013 disclosure as having

produced nothing new or revelatory. 51 Nor is there indication

that Mullin could have obtained the CONFIDENTIAL

MULLIN documents before she did. And when the mistake

was discovered, counsel moved swiftly to bring it to the

Court’s attention; the delay prior to the filing of the formal

motion to amend was due to a scheduling order delaying

51

See, e.g., Brief in Support of Motion for Reconsideration 3

(“In April 2013 plaintiff received initial discovery from the

State Defendants which was limited to the records already in

plaintiff’s possession.”), ECF No. 155-2.

25

consideration of amendment until reconsideration had been

granted or denied. 52

For the above reasons, we disagree with the Magistrate

Judge that the delay attributable to the April 2013 discovery

was “inescapabl[y]” undue. 53 The record indicates that

counsel followed up on documents that appeared to be

missing; while counsel undoubtedly erred, with disastrous

consequences for her client, the Magistrate Judge did not

properly inquire as to whether the mistake was excusable in

context, or from when the delay should have been measured.

These considerations should be addressed on remand.

2. Prejudice

As set forth above, prejudice to the non-moving party

has long been the “touchstone” for the denial of leave to

amend. 54 Here, the State Defendants had argued that the

52

On the other hand, Mullin’s attorney does not help her

cause by arguing on appeal, as she did before, that the

Attorney General should have simply told her that she was

missing something. The Attorney General does not appear, as

an ethical matter, to owe that enhanced degree of fairness to

opposing counsel, so long as it does not undermine the candor

required towards the tribunal. See N.J. R.P.C. 3.4; cf. also In

re Jemsek Clinic, P.A., 850 F.3d 150, 159 (4th Cir. 2017)

(“Under our adversarial system, litigants are not their

opponents’ keepers. They have no duty to help their

opponents maximize their recovery or prevent them from

losing their claims.”).

53

JA 76.

54

See Heyl & Patterson Int’l, Inc. v. F. D. Rich Hous. of V.I.,

Inc., 663 F.2d 419, 425 (3d Cir. 1981); United States v. 47

26

“numerous motions to amend” and other briefings had led

them to expend significant resources on the litigation, and

they further objected to Mullin’s “adding completely new

defendants at this late stage of the litigation.” 55 They asked

the Magistrate Judge to “intercede by denying [amendment]

and putting a stop to what seems like an endless cycle.” 56

The Magistrate Judge largely agreed with this line of

argument. In a short discussion on prejudice, the Judge found

that “[t]he current defendants, as well as those who have

already been dismissed, have spent significant resources on

this litigation, and they would essentially be forced back to

square one.” With regard to the proposed defendants, there

was “nothing beyond speculation to support the notion that . .

. there would not be prejudice to them in defending on the

merits.” 57 In the summary section, the Judge wrote that

“allowing the amendment at this point of the litigation, after

so much motion practice, would only cause further delay, to

the prejudice of the parties.” 58

At the outset, the arguments against amendment

advanced here and by the State Defendants on appeal do not

connect prejudice to the additional delay caused by the

mistake of Mullin’s attorney. Rather, these claims of

prejudice would have applied with near-equal force had

Mullin timely moved to amend immediately upon obtaining

the April 2013 disclosures. Accordingly, we view the “delay”

Bottles, More or Less, Jenasol RJ Formula “60”, 320 F.2d

564, 573 (3d Cir. 1963).

55

JA 76.

56

JA 20.

57

JA 77.

58

JA 78.

27

complained of here as referring to the pendency of the

litigation as a whole and not to the delay in seeking to amend

once the CONFIDENTIAL MULLIN documents were

disclosed.

Thus framed, we again disagree with the Magistrate

Judge’s analysis. Mullin appears to be largely without fault

for the years that passed before she obtained the

CONFIDENTIAL MULLIN documents which radically

altered her understanding of the night Robert took his own

life. The State Defendants have not argued that she could

have obtained the Report earlier, or that there was a hint of

the proposed new defendants—and especially Officer X—in

any of the discovery documents prior. While the State

Defendants are within their rights to comply only with those

discovery obligations actually due under law, they cannot

persuasively rely on resulting delay as a source of prejudice. 59

It was also not improper for Mullin to replead

dismissed defendants and claims in her proposed amended

complaint. At the time she filed her proposed TAC, Mullin

may not have decided whether she intended to pursue the

already dismissed claims and parties on appeal, and including

them in the proposed TAC preserved that right. Because an

amended complaint supersedes the original, “parties

59

Cf. Joseph v. Elan Motorsports Techs. Racing Corp., 638

F.3d 555, 560 (7th Cir. 2011) (“Prejudice manufactured by a

defendant is not a ground for refusing relation back.”). The

multiple rounds of motions practice are also of uncertain

relevance to prejudice. Had Mullin sought leave to amend at

the moment when she obtained the April 2013 disclosures,

she would have interrupted pending Rule 12 motions then,

too.

28

voluntarily dropped from an amended complaint do not

remain in the case.” 60 Claims omitted from an amended

complaint remain in the case only if previously dismissed on

“legal grounds, rather than due to a lack of factual

specificity.” 61 Dropping parties and dropping claims can

therefore lead to abandonment later in the case and on appeal.

Thus, to the extent that the Magistrate Judge counted this

against Mullin with regard to prejudice or judicial economy,

it was error to do so; since the abandonment rule applies only

to claims or parties “voluntarily” dropped, allowing

amendment but conditioning it on omission of previously

dismissed claims or parties does not trigger the rule, and is

the preferred way to resolve the problem.

It is thus not correct to say that granting leave to

amend would put the defendants back at square one or

perpetuate an infinite cycle. The Magistrate Judge would have

been entitled to rely on the District Court’s earlier dismissal

opinion in determining whether previously dismissed

defendants should remain in the case, and could have set

further conditions on amendment, discovery, and so on. The

“cycle” of motions practice interrupted by amendment

requests based on new evidence remains a risk only for as

long as discovery remains open. 62 And because Mullin did

not appeal the dismissal of any defendants other than Dimler,

or the subsequent grant of summary judgment for the intake

60

Palakovic, 854 F.3d at 221 n.13.

61

Id. at 221.

62

See Miller v. Admin. Office of the Courts, 448 F.3d 887,

898–99 (6th Cir. 2006) (explaining that the close of discovery

indicates prejudice).

29

nurse, any challenges relating to those decisions have now

been abandoned. 63

In sum, while the defendants have undoubtedly

expended resources over the course of the litigation, and

would have to expend additional effort were amendment

allowed, their case for prejudice is thin. A defendant that

possesses an explosive document unknown to the plaintiff

may use the legitimate litigation strategies at hand to delay

disclosure of that document until absolutely necessary, but

that delay cannot thereafter form that defendant’s argument

for prejudice if it leads to a belated request to amend. Because

the State Defendants did not persuasively articulate a theory

of prejudice, and because the Magistrate Judge’s discussion

relied on factors that appear to have been allowable litigation

choices on Mullin’s behalf, we will vacate for reconsideration

of this factor.

3. Judicial Economy

Judicial economy is an equitable consideration that can

be considered in deciding whether amendment should be

allowed. It is uncommonly a factor that stands entirely alone,

separate and apart from prejudice and factors relevant to

63

See Beazer E., Inc. v. Mead Corp., 525 F.3d 255, 263 (3d

Cir. 2008) (collecting cases); Cty. of Suffolk v. Stone &

Webster Eng’g Corp., 106 F.3d 1112, 1117 (2d Cir. 1997)

(when “a decision made at a previous stage of litigation” was

not “challenged in the ensuing appeal . . . [,] the parties are

deemed to have waived the right to challenge that decision”).

30

whether a delay was “undue.” 64 Considerations include

judicial efficiency and effective case management. 65

The Magistrate Judge appeared to consider judicial

economy by discussing the work already done by the Court:

the “almost four years” that had passed since its filing, at least

“eight conferences” that had been held with the parties, and

the extensive motions practice that included “at least four

motions to dismiss.” 66 The Magistrate Judge also referred to

the District Court’s work “in preparing a 40-page opinion,

which would be rendered moot if the amendment were

allowed to proceed.” 67

While the litigation had doubtlessly been frustrating,

and Mullin’s apparent minimization of the many stumbles

throughout is discouraging, the Magistrate Judge’s focus on

the past inappropriately constrains the scope of the judicial

economy inquiry. The difficulty in managing the litigation

thus far is certainly salient, but simply tallying up the number

of motions, conferences (of any type), and opinions sheds

little light on whether future management of the case would

encounter similar difficulties. The length of the District

Court’s opinion on dismissal, and the effort behind it, are also

of uncertain weight, especially in light of this Circuit’s

64

See, e.g., Little v. Liquid Air Corp., 952 F.2d 841, 846–47

(5th Cir. 1992) (affirming denial of leave to amend because

party’s delay imposed burdens both on the defendants and on

the court).

65

See Jebaco, Inc. v. Harrah’s Operating Co., 587 F.3d 314,

322 (5th Cir. 2009).

66

JA 77.

67

JA 77.

31

default presumption in favor of amendment in civil rights

cases.

As cast in this case, “judicial economy” sounds almost

like a sanction for prior perceived errors. As presented, it

does not currently support the Magistrate Judge’s decision to

deny leave to amend.

4. Relation Back and

Timeliness

The Magistrate Judge summarily addressed, and the

parties have briefed before us, the doctrine of “Relation

Back.” This refers to the operation of Rule 15(c), which

allows certain new claims and new parties added in an

amended complaint to “relate back” to the date of filing of the

original complaint for statute of limitations purposes if certain

conditions are met. 68 While courts are permitted to combine

the question of whether amendment should be granted with

the issue of whether the proposed amendment relates back, 69

the two inquiries are analytically distinct; relation back is a

test of the legal viability of the proposed amendment, and not

a discretionary factor weighing in favor of or against

amendment. 70 Thus, in certain cases, the “better approach” is

to treat leave to amend and relation back/timeliness

separately, determining first whether amendment should be

allowed under the discretionary factors, and only then passing

68

See Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 193 (3d

Cir. 2001).

69

See, e.g., Maersk, 434 F.3d at 204.

70

See Garvin v. City of Phila., 354 F.3d 215, 222 (3d Cir.

2003).

32

on whether the complaint relates back or is otherwise

timely. 71

On this record, we conclude that determining whether

the complaint “relates back” is unnecessary, at least with

regard to Mullin’s 42 U.S.C. § 1983 vulnerability-to-suicide

constitutional claims brought against Officer X. The

allegations against Officer X would be timely on their face.

The accrual date of a § 1983 claim is determined under

federal law. 72 Generally, a constitutional claim under § 1983

accrues when the plaintiff knew or should have known of the

injury upon which the action is based. 73 A vulnerability-to-

suicide claim, which is simply a more specific articulation of

the Eighth Amendment rule that prison officials must not be

deliberately indifferent to a prisoner’s serious medical needs,

requires showing (1) the existence of a particular

vulnerability to suicide, (2) that a prison official knew or

should have known of the individual’s particularly

vulnerability, and (3) that the official acted with reckless or

deliberate indifference to the particular vulnerability. 74 The

accrual of the claim is not tied solely to the prisoner’s suicide

71

Joseph v. Elan Motorsports Techs. Racing Corp., 638 F.3d

555, 558–59 (7th Cir. 2011); see also Glover v. FDIC, 698

F.3d 139, 144–48 (3d Cir. 2012) (on dismissal posture,

addressing relation back and timeliness separately).

72

Montanez v. Sec’y Pa. Dep’t of Corr., 773 F.3d 472, 480

(3d Cir. 2014).

73

Id.

74

Palakovic v. Wetzel, 854 F.3d 209, 222, 223–24 (3d Cir.

2017).

33

itself, but also to the unconstitutional act by the prison official

that gives rise to the claim. 75

Here, the actual nature of the claim against Officer X

was unknown to Mullin until the receipt, by counsel, of the

April 2013 disclosures. Mullin’s claim against the prior State

Defendants, premised on their alleged failure to be put on

notice of Robert’s intake answers and transfer materials,

stemmed from a different asserted injury. Officer X, by

contrast, is alleged to have specifically known of Robert’s

need for mental-health intervention and to have disregarded

it. Mullin would not have been put on notice of the elements

comprising this separate injury by the pre-April 2013

disclosures, and the fact of Robert’s death itself did not

otherwise cause the limitations period to start running. As

discussed above, Mullin’s investigative diligence has not

been called into question. Thus, either innately or through the

application of the discovery rule, 76 the facts of this case show

75

Cf. Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (per

curiam) (explaining that the date of the act, not the date of

consequences, controls); Heard v. Sheahan, 253 F.3d 316,

318 (7th Cir. 2001) (Posner, J.).

76

See United States v. Norwood, 602 F.3d 830, 837 (7th Cir.

2010) (“The discovery rule starts the statute of limitations

running only when the plaintiff learns that he’s been injured,

and by whom.”). We need not definitively determine whether

the timeliness of Mullin’s proposed amended complaint is

due to deferred accrual, deferred commencement of the

limitations period, or tolling. See William A. Graham Co. v.

Haughey, 646 F.3d 138, 147–50 (3d Cir. 2011) (discussing

imprecision between accrual and the running of the

34

that Mullin could not have learned of the particular nature of

this serious disregard of Robert’s mental state—or who was at

fault—until she had obtained the Report or its equivalent.

Mullin’s attempt to amend therefore fell well within the

applicable two-year limitations period if measured from the

April 2013 disclosure date. 77

C. Summary

For the above reasons, we conclude that the Magistrate

Judge’s exercise of discretion was not within the boundaries

contemplated by Rule 15 or the Foman factors, in light of the

liberal pleading regime established by the Federal Rules. We

remand for the Magistrate Judge or District Court to reassess

the propriety of amendment under the proper framework. The

Court may also wish to weigh whether the claims advanced

by Mullin on the basis of the new discovery are meritorious in

deciding whether amendment is warranted. 78 If the Court

nonetheless decides that the delay was undue or that the

defendants have articulated past or potential future prejudice,

the Court may wish to consider whether attaching conditions

to amendment, or limiting amendment to certain claims and

parties, suffices to mitigate those concerns. Finally, while we

have determined that the § 1983 claims against Officer X

would be timely if allowed to proceed, the District Court may

consider whether Rule 15 relation back—including the

limitations period, especially with regard to the discovery

rule).

77

Dique, 603 F.3d at 185.

78

See Jennings, 394 F.3d at 857.

35

application of the New Jersey fictitious party rule 79—or other

limitations doctrines suffice to render timely other claims

against other proposed parties.

III. CONCLUSION

For the foregoing reasons, we will affirm in part,

vacate in part, and remand.

79

See DeRienzo v. Harvard Indus., 357 F.3d 348, 353–54 (3d

Cir. 2004) (addressing N.J. Ct. R. 4:25-4).

36