DAVID F. ASHBY v. BARBARA HATCHER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4299-06T14299-06T1

DAVID F. ASHBY, individually

and t/a "BRAVO'S CAF ,"

BRENDA ASHBY, individually

and t/a "BRAVO'S CAF ," and

BARBARA HATCHER,

Plaintiffs-Appellants,

v.

THE CITY OF EAST ORANGE and

THE CITY OF EAST ORANGE POLICE

DEPARTMENT,

Defendants-Respondents,

and

DETECTIVE REGINALD BUTTS and

OFFICER VICTOR TUCKER,

Defendants.

_____________________________________

 

Submitted April 7, 2008 - Decided

Before Judges Graves, Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8381-00.

Thomas L. Ferro, attorney for appellants.

Law Office of Robert L. Brown, attorneys for respondents (Kevin C. Watkins, on the brief).

PER CURIAM

Plaintiffs, the co-owners of a bar in East Orange and one of their employees, brought this lawsuit in 2000 against the City of East Orange ("the City"), its Police Department, and two of its police officers, arising out of two police raids on the bar that took place in December 1998. Plaintiffs allege that the police officers who participated in those raids violated their civil rights, and otherwise acted unlawfully while they were on the bar premises.

The claims against the two defendant police officers were severed for trial. In December 2006, a bench trial on plaintiffs' claims against one of the two officers resulted in a no-cause verdict. Thereafter, in February 2007, a jury similarly determined that plaintiffs had not proven their factual contentions of wrongdoing by the other named officer.

In the present appeal, plaintiffs do not seek review of the defense verdicts produced in the two trials. Rather, they appeal separate rulings of the Law Division that (1) granted summary judgment to the City and the Police Department on plaintiffs' claims of liability under the federal civil rights laws, and (2) denied plaintiffs' motion, brought almost six years after their lawsuit was filed, to amend their complaint to add new legal theories based upon the same underlying alleged conduct.

For the reasons explained in this opinion, we affirm the Law Division's rulings. In particular, we conclude that the trial court did not misapply its authority in disallowing plaintiffs' very late amendment to the complaint. We also sustain the trial court's dismissal of plaintiffs' claims against the municipal entities, a disposition that is fortified by the two binding no-cause verdicts reached as to the underlying conduct of the named individual officers.

I.

At the times relevant to this case, plaintiffs David and Brenda Ashby, husband and wife, owned a bar and restaurant known as Bravo's Caf ("Bravo's") in East Orange. Barbara Hatcher, a co-plaintiff in this case, was a Bravo's employee.

On the evening of December 1, 1998, several members of the Police Department's vice squad were conducting surveillance by the rear door of Bravo's. The police officers observed several men making what they perceived to be drug sales, and then going back into the building. The surveillance team contacted their supervisor, Sergeant Michael Williams, who met with them and formulated a plan of operation to enter the premises.

At that same time, the Ashbys were sitting at the bar inside Bravo's, having dinner. About thirty to forty patrons were also present, along with at least two other employees, including Hatcher.

According to plaintiffs, at about 8:00 p.m. that night, fourteen to twenty men and women suddenly came through the front and back doors of the premises. Several of them had guns drawn. Plaintiffs allege that they did not immediately realize that the persons who entered were police officers, although the record indicates that at least two of the officers were in uniform.

The facts regarding what ensued after the police entered Bravo's that night are substantially disputed. According to plaintiffs, the officers directed everyone inside the bar to lie down on the floor. The Ashbys contend that guns were pointed at their backs, and Hatcher alleges that an officer put a gun to her head. Plaintiffs further allege that the police officers used profanity and rough manners in addressing them and their customers.

One of the police officers who participated in the vice squad's raid that night was Detective Reginald Butts, who was individually named as a co-defendant in plaintiffs' complaint. David Ashby contends that Detective Butts placed him in handcuffs, and then grabbed him by the collar. The detective then allegedly dragged Mr. Ashby down a hallway, pushed him against the wall, and addressed him in a hostile and profane manner. According to plaintiffs, Detective Butts was retaliating against Mr. Ashby for refusing to allow him and a companion into the bar about a month earlier because they appeared to be inebriated.

The officers conducted a search of the bar area. Each patron was patted down for weapons and drugs. Female police officers took Brenda Ashby, Hatcher and another female employee into the ladies room, where they were subjected to a strip search. Plaintiffs allege that the police left the door to the ladies room open during the strip search, thereby enabling male officers to observe the three women through the door opening while they were disrobed. Although the males on the premises were frisked, none of them were strip-searched.

The police confiscated money from the bar's cash register, as well as two bags of cash and a lock box containing cash receipts. When the lock box was eventually returned to the Ashbys, it was missing over $500. Plaintiffs also claim that the police took liquor from behind the bar and damaged the pool tables and other things.

David Ashby was arrested that night and charged with illegally selling alcohol to a minor. The police also arrested two customers for the possession of illegal narcotics.

Defendants deny that any police misconduct took place that evening. According to a report Sergeant Williams wrote after the December 1 incident, the police officers involved in the raid, including those in plainclothes, were all "clearly identifiable." Sergeant Williams asserted that it was necessary for the police, upon entering Bravo's, to detain and secure everyone on the premises "for safety reasons." He maintained that such a search was necessary because "patrons inside [Bravo's] are known to have weapons." Sergeant Williams also noted that police officers witnessed two patrons attempting to hide or dispose of narcotics as they entered, and he confirmed that those two persons had been arrested.

As to the strip searches of the three females, Sergeant Williams maintained that they were conducted in private, behind closed doors. The sergeant asserted that he "was on the scene from start to finish [and that] all officers conducted themselves in a professional manner." He specifically denied that any of the officers abused anyone inside the bar.

The day after Bravo's was raided, David Ashby filed a citizen's complaint with the Police Department. The Department conducted an internal investigation of Mr. Ashby's allegations of police misconduct. During the course of that investigation, the lieutenant in charge interviewed Mr. Ashby. The lieutenant found Mr. Ashby to be incredible, describing him as "very evasive[,] vague, [and] combative," noting that Mr. Ashby "changed his story several times." The lieutenant reviewed a written report from Detective Butts, who specifically denied using any physical force against Mr. Ashby. The lieutenant also considered Sergeant Williams's written version of the events in question.

Based on the information he gathered, the investigating lieutenant concluded that Mr. Ashby's allegations were without merit. The lieutenant suggested that the allegations were motivated by a self-interested desire on Mr. Ashby's part to protect his liquor license. Consequently, the Police Department dismissed Mr. Ashby's citizen's complaint as "unsustained."

Shortly thereafter, on December 18, 1998, a contingent of police again entered Bravo's, although this time all of the officers involved were in uniform. Although the Ashbys do not provide many details about this second incident, they contend that the two raids caused the bar to lose over $1,000 a week in business, as their customers allegedly stayed away out of fear of police harassment. The Ashbys further assert that, in the years following these events, Bravo's revenues substantially declined.

All three plaintiffs contend that they have suffered ongoing psychological trauma as a result of the police raids, including anxiety, depression, trouble sleeping, and an increased fear of police officers. These symptoms were allegedly confirmed by examinations performed on each of them by a psychologist in 1999.

Based on the events occurring at Bravo's on December 1 and December 18, 1998, plaintiffs filed an eight-count complaint against the City, the Police Department, Police Officer Victor Tucker, Detective Butts, and twenty unnamed defendants, on August 28, 2000. The complaint alleged (1) violations of the federal Civil Rights Act, 42 U.S.C.A. 1983 (Counts One and Four); (2) state intentional torts of trespass, assault, battery, misappropriation of property, harassment, false arrest, malicious prosecution, and intentional infliction of emotional harm (Counts Two and Five); (3) violations of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (Counts Three and Six); (4) federal and state claims for negligent hiring and retention (Count Seven); and (5) federal and state claims for tortious interference with business (Count Eight).

With respect to Detective Butts, plaintiffs alleged in their complaint that he participated in the December 1 raid, and that he specifically told Mr. Ashby that he was getting even for being excluded from the bar with his friend on the previous occasion. In a later Statement of Material Facts plaintiffs filed, pursuant to Rule 4:46-2(a), they amplified their allegations against Detective Butts. In that Statement, plaintiffs specifically asserted that the detective had taken a handcuffed Mr. Ashby by the shirt, dragged him down the hallway, and slammed him against a wall.

Police Officer Victor Tucker was the other individually named co-defendant in plaintiffs' complaint. The complaint was not specific about Officer Tucker's conduct, other than asserting that he was one of the officers who had participated in the December 1 raid. However, in their ensuing Rule 4:46-2(a) Statement, plaintiffs asserted that Officer Tucker's conduct was improper because "he was a party to all of the police action, by his presence and participation." Plaintiffs elaborated in their Statement that Officer Tucker "took part in putting customers on the floor, intimidating customers, rushing through the door with weapons drawn and all without any warrants." Eventually, plaintiffs' claims against Officer Tucker were further clarified to encompass an allegation that he had falsely arrested David Ashby.

Defendants filed an answer in November 2000, denying all claims and raising twenty-six affirmative defenses, including sovereign immunity, comparative negligence, and the failure to mitigate damages. A lengthy discovery period ensued. During the course of discovery, plaintiffs did not substitute any additional persons for the fictitiously-named defendants, pursuant to Rule 4:26-4.

After the discovery end date passed, Officer Tucker and Detective Butts filed individual motions for summary judgment. Plaintiffs opposed their motions, and also filed a cross-motion for summary judgment as to the liability of all of the defendants. The City and the Police Department then filed their own cross-motion for summary judgment.

The Law Division heard argument on the summary judgment motions and cross-motions on May 26, 2006. Following that argument, Judge Sebastian Lombardi granted summary judgment to defendants on all counts, except for the Ashbys' bailment claim for the cash that had been confiscated by the police during the December 1 raid. Judge Lombardi also granted partial summary judgment to Officer Tucker and Detective Butts, dismissing most of the individual claims asserted against them. However, the judge preserved for trial the federal claim for false arrest against Officer Tucker, and the federal and state claims of excessive force against Detective Butts.

Plaintiffs moved for reconsideration of the court's dismissal of their federal civil rights claims. They also moved to amend their complaint to add three new counts: a discrimination claim by the two female plaintiffs under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, and two counts of illegal search and seizure under the New Jersey Constitution, art. I, 7. After hearing oral argument, Judge Lombardi denied both the motion for reconsideration and the motion to amend.

The surviving claims against Officer Tucker and Detective Butts proceeded separately to trial. The claim against Officer Tucker for false arrest was dismissed after plaintiffs failed to prevail in a bench trial before Judge Francine Schott on December 4, 2006. Likewise, after a six-day jury trial in which the jury rendered a no-cause verdict, Judge Verna Leath entered final judgment in favor of Detective Butts on February 8, 2007.

Plaintiffs have not appealed the judgments in favor of Officer Tucker and Detective Butts. Nor have they appealed the other claims against those two officers that were previously dismissed by Judge Lombardi on partial summary judgment. The City, meanwhile, paid plaintiffs in bailment the sum of $581.75 that had been taken from the bar by the police, thereby settling the sole remaining claim against the municipal defendants in the case.

Plaintiffs have now appealed Judge Lombardi's entry of summary judgment against the City and the Police Department, arguing that there are genuine factual issues concerning the municipal defendants' liability under the federal Civil Rights Act, 42 U.S.C.A. 1983 ("Section 1983"). They also appeal Judge Lombardi's concurrent order denying their motion for leave to amend their complaint, contending that the judge misapplied his discretion in not allowing the late amendment.

II.

We begin our analysis of the municipal defendants' alleged liability under Section 1983 with a recognition of the well-settled standards for summary judgment. An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1996); see also R. 4:46-2(c).

Plaintiffs contend that Judge Lombardi erred in granting summary judgment to the City and the Police Department because they perceive genuine issues of material fact that, if viewed in a light most favorable to them, could reasonably support a finding that the municipal entities are vicariously liable for police wrongdoing arising out of the December 1 and December 18, 1998 incidents. We disagree.

The entry of summary judgment in favor of the municipal entities here is justified under the applicable legal principles, particularly under Section 1983 of the federal Civil Rights Act. Moreover, plaintiffs are collaterally estopped from circumventing the adverse factual determinations made by the judge and jury, respectively, in the trials against Officer Tucker and Detective Butts.

Beginning in 1978, the United States Supreme Court recognized that municipalities are "persons" under the Civil Rights Act and may at times be held liable for the constitutional torts of their officers or employees. Monell v. Dep't of Social Servs. of the City of New York, 436 U.S. 658, 663, 98 S. Ct. 2018, 2022, 56 L. Ed. 2d 611, 619 (1978). The Supreme Court also made clear in Monell that municipalities will not be liable to others solely on a theory of vicarious liability. Id. at 691, 98 S. Ct. at 2036, 56 L. Ed. 2d at 636. Rather, because of the causation requirements of Section 1983, a municipality can only be liable under that statute if the constitutional violation was committed pursuant to an official "policy or custom." Id. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d at 638.

Subsequent decisions have clarified the difference in the proofs required to proceed under these two separate theories of liability based on municipal "policy," or, alternatively, municipal "custom." When the alleged constitutional violation is the result of action by a "decision[-]maker [who] possesses final authority to establish municipal policy with respect to the action ordered," a single decision by such a person may amount to official policy sufficient to hold a municipality liable. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292, 1299, 89 L. Ed. 2d 452, 464 (1986) (finding that a city could be liable for an illegal entry of premises by the county sheriff where the county prosecutor had authorized the entry).

On the other hand, a single incident of unconstitutional action by non-decision makers will not suffice to establish either a municipal policy or custom. Rather, a plaintiff must establish liability by showing that the incident was precipitated by a custom "so widespread as to have the force of law." Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1388, 137 L. Ed. 2d 626, 639 (1997); see also Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) ("A course of conduct is considered to be a 'custom' when, though not authorized by law, 'such practices of state officials [are] so permanent and well settled' as to virtually constitute law." (citation omitted)).

In addition to proving a "custom" attributable to a municipal decision-maker, plaintiffs under Section 1983 must also show that this custom actually caused the deprivation of their constitutional rights. The United States Supreme Court in Bryan County established a strict test for proving such causation:

[I]t is not enough for a 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the "moving force" behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.

[Bryan County, supra, 520 U.S. at 404, 117 S. Ct. at 1388, 137 L. Ed. 2d at 639 (first and third emphases added).]

Regardless of the specific custom alleged, the standard of proof is whether that custom amounted to "deliberate indifference" by municipal actors to the rights of citizens. City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S. Ct. 1197, 1204-05, 103 L. Ed. 2d 412, 426-27 (1989). "'[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Bryan County, supra, 520 U.S. at 410, 117 S. Ct. at 1391, 137 L. Ed. 2d at 643.

Plaintiffs concede there is no evidence that either the City or its Police Department had an official policy condoning the excessive use of force by its officers. Likewise, there is no proof that the specific police actions forming the basis for plaintiffs' alleged constitutional injuries were authorized by any person with decision-making authority. The motion judge found as a matter of law that Sergeant Williams, the supervisor of the vice squad, was "not a sufficient policy-maker" within the Department. Plaintiffs have not disputed that particular determination on appeal.

Therefore, plaintiffs could only prevail here by demonstrating that the City and the Police Department had a custom of tolerating police misconduct. As such, plaintiffs cannot defeat summary judgment simply by reciting the events of December 1, 1998, regardless of how egregious they seem, but instead must also establish what Judge Lombardi referred to as "foundational evidence." Such foundational evidence would need to show that the municipal entities had a custom of tolerating police abuse of citizens, and that this custom rose to the level of deliberate indifference.

Plaintiffs point to several evidential items in attempting to establish such a custom of police misconduct. They chiefly rely upon various documents from the Internal Affairs files of the Police Department concerning Officer Tucker. Those documents contain more than twenty-five citizen complaints against Officer Tucker, mostly alleging excessive force. Apparently, none of the citizen complaints were ever substantiated. The files also include a March 1997 letter from a captain in the Police Department to the Chief of Police, expressing concerns about Officer Tucker harassing another officer who had made an adverse report about him to Internal Affairs.

Although the volume of unsubstantiated complaints regarding Officer Tucker is disturbing, the complaints and the captain's March 1997 internal memo do not mandate the revival of plaintiffs' claims against the municipal entities. Plaintiffs lose sight of the fact that their allegations against Officer Tucker for false arrest were tried in December 2006, and that the judge determined, as the fact-finder, that plaintiffs had not established those claims by a preponderance of the evidence. Plaintiffs are bound by that adjudicated finding against them, which they have not appealed. Nor have they appealed the court's pre-trial dismissal of their remaining claims against Officer Tucker.

These adverse determinations regarding Officer Tucker's conduct have preclusive effect against plaintiffs. See Sacharow v. Sacharow, 177 N.J. 62, 76 (2003) (reciting the well-settled elements of collateral estoppel). Plaintiffs, having lost already at trial, cannot re-litigate their factual contentions in the guise of Section 1983 claims against the public entity defendants. See San Remo Hotel, L.P. v. City of San Francisco, 545 U.S. 323, 342, 125 S. Ct. 2491, 2504, 162 L. Ed. 2d 315, 336 (2005) (issues of fact and law actually decided in a proceeding will be given preclusive effect in a subsequent Section 1983 action); Tarus v. Borough of Pine Hill, 189 N.J. 497, 520-21 (2007) (finding of probable cause for arrest made during plaintiff's Section 1983 case in federal court was given preclusive effect as to plaintiff's subsequent related claims in state court for false arrest and malicious prosecution).

Because Officer Tucker was vindicated in this case after a full-fledged trial, the documents indicative of his past track record of potential misconduct are of scant relevance to plaintiffs' claims against the municipal entities arising out of Tucker's alleged wrongs in the December 1 police raid. To the extent those documents are relevant at all, we note that they reflect that the Police Department has disciplined Officer Tucker at least once in the past. Such discipline undermines plaintiffs' contentions of the municipality's deliberate indifference.

Similar logic applies to plaintiffs' claims arising out of the alleged wrongs that Detective Butts committed on December 1. Plaintiffs highlight the fact that the Internal Affairs files include two citizen complaints that were lodged against Detective Butts in other matters. Again, the record contains no proof that those citizen claims were ever substantiated. More importantly, plaintiffs have already had the opportunity to prove wrongdoing by Detective Butts in this matter to a jury. That jury concluded, after a six-day trial, that plaintiffs had not proven their allegations of excessive force against the detective. Hence, plaintiffs are bound by that adjudicated result, making the complaints in Detective Butts's personnel file largely inconsequential for purposes of the remaining aspects this particular litigation.

As we have already noted, Officer Tucker and Detective Butts were the sole individual police officers that plaintiffs named in their complaint. After two trials, the neutral fact-finders were not persuaded that either of those two officers acted wrongfully at Bravo's on the night of December 1, 1998. We also are presented with no claims of trial error committed in either of those proceedings. Even though plaintiffs' allegations of excessive force and false arrest, as pleaded in this case, are graphic and troubling, we cannot allow plaintiffs, in effect, a third bite at the apple.

We are mindful that plaintiffs' allegations extend beyond claims of excessive force and false arrest, and that the complaint included claims by the two female plaintiffs that they were improperly strip-searched. On this score, however, the record indisputably shows that the Police Department had clearly established guidelines on conducting strip searches.

According to those guidelines, "[t]he [strip] search shall be performed at police headquarters under the direction of the Desk Officer" unless "emergency conditions require immediate action to prevent bodily harm to an officer or others." The Department's policy also requires that "[t]he reason(s) for the search shall be documented in the Incident Report and Arrest Report." This local policy is based on the state statute governing strip searches, N.J.S.A. 2A:161A-1 to -10. The statute prescribes that no strip search may be performed without either consent or a search warrant, unless police had probable cause to believe a suspect was concealing drugs or weapons. N.J.S.A. 2A:161A-1. The Attorney General's guidelines on strip searches echo this language.

The record is bereft of any proof that the City or the Police Department had any policy or custom concerning strip searches, prior to December 1, 1998, that was contrary to the clear mandates of its written policy. If, in fact, unnamed police officers who were at Bravo's that night deviated from that policy, the municipal entities are not civilly liable for those deviations under Monell, because there is no evidence that the entities had condoned such improprieties in the past. Plaintiffs never amended their complaint, despite the opportunity for years of discovery, so as to identify and appropriately name as substituted defendants the officer or officers who took part in the alleged strip searches. While we surely would condemn that conduct if it were proven to have occurred, there is nothing before us to support a genuine issue of a past pattern or practice of wrongful strip searches in this municipality. To the contrary, the City had a written policy that prohibited such wrongful searches, one that indisputably comports with the law.

Plaintiffs cite to two other items in an effort to revive their claims against the municipal entities. First, they rely upon the deposition testimony of one of the patrons at the bar on December 1, Julius Ramdy, who asserted that police officers in the City routinely searched him and others without probable cause. Ramdy further alluded at his deposition that "a few other" unspecified persons would state "the same thing." These vague assertions are simply insufficient to establish triable issues of a pattern of deliberate indifference by the City to police misconduct. Ramdy identifies no specific prior incidents of misconduct that could be explored by both parties before trial in discovery and fairly tested before a fact-finder. We agree with the motion judge that Ramdy's testimony is of negligible probative value in this case.

Plaintiffs also highlight newspaper articles describing two incidents in which City police officers had planted and falsified evidence. The articles also mentioned that several police officers in the City were the targets of a federal grand jury investigation, beginning in 1997 and lasting at least through 2000, examining alleged police misconduct in East Orange, particularly within the vice squad. There is nothing in the record as to the outcome of that publicized investigation.

We do not believe these newspaper articles can salvage plaintiffs' claims against the municipal entity defendants. The articles are clearly hearsay, see N.J.R.E. 802, and do not come within some apparent hearsay exception. The reporter surely does not have first-hand knowledge of the alleged criminal acts that the grand jury was investigating. Moreover, the live testimony of the journalist who authored the articles, even if plaintiffs had subpoenaed him, is likely to be protected by the newsperson's evidentiary privilege. See N.J.R.E. 508(a) and (b). In any event, the generic and inconclusive statements in the newspaper articles do not rise to the level of proof necessary to meet the Monell tests of custom and policy.

In sum, we are satisfied that Judge Lombardi correctly granted summary judgment to the City and the Police Department, and that the soundness of his ruling is buttressed by the collateral estoppel implications of the two verdicts in favor of Officer Tucker and Detective Butts that came after his ruling. For the same reasons, the judge correctly denied plaintiffs' motion for reconsideration. See R. 4:49-2; Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

III.

We now turn to the court's denial of plaintiffs' motion for leave to amend their complaint. At the outset, we underscore that the motion for leave was filed in June 2006, almost six years after plaintiffs' complaint was originally filed in August 2000, and more than seven years after the underlying incidents occurred at Bravo's in December 1998.

Under Rule 4:9-1, "[a] party may amend any pleading as a matter of course at any time before a responsive pleading is served." Any time after the responsive pleadings are filed, "a party may amend a pleading only by written consent of the adverse party or by leave of court." Ibid. The Rule directs that the court's permission to amend "shall be freely given in the interest of justice." Ibid. If the amended complaint arises "out of the conduct, transaction, or occurrence set forth . . . in the original pleading, the amendment relates back to the date of the original pleading." R. 4:9-3. In such cases, the statute of limitations will not bar the amended claim.

Plaintiffs seize upon the language of these Rules, specifically the language mandating that permission to amend be "freely given." Yet the decision to either allow or deny amended claims is a fact-sensitive one, and it is subject to a trial judge's sound discretion. Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994); see also Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998). On appeal, we simply review whether that discretion was abused, according proper deference to the trial judge's day-to-day responsibilities for case management. Fisher, supra, 270 N.J. Super. at 467.

Although the general inclination under our Rules is to permit amended claims, that inclination has its well-established limits. See Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). Our courts have routinely, and justifiably, denied leave to amend claims in instances where (1) the amended claims patently lack merit, (2) their merits are marginal and the amendment would protract litigation, or (3) the motion to amend is made so late in the proceedings as to constitute prejudice to the opposing party. See Pressler, Current N.J. Court Rules, comment 2.2 on R. 4:9-1 (2008) (citations omitted).

Taking these considerations in reverse order, it is undeniable that plaintiffs' motion to amend their complaint and add new claims came very late in this six-year litigation. The amendments were offered after the trial court had already granted summary judgment to defendants on the major claims, and on the same day that trial was set to begin on the remaining bailment claim. As Judge Lombardi aptly noted, "it's certainly clear that [allowing the amended claims] would cause . . . significant delay."

Plaintiffs have offered no persuasive justification for failing to seek to add their LAD and state constitutional claims earlier. Their counsel acknowledged to Judge Lombardi that "through inadvertence or unawareness I just didn't plead [them] when I pleaded the original things." Counsel also conceded that the LAD and constitutional claims were based on the same facts and the same evidence that plaintiffs had possessed for the previous six years. Although we appreciate counsel's candor, it does not excuse the lateness of his request.

Plaintiffs' reliance in this regard on Zuidema v. Pedicano, 373 N.J. Super. 135 (App. Div. 2004), certif. denied, 183 N.J. 215 (2005), is unavailing. In Zuidema, we allowed a plaintiff's attorney to amend the original medical malpractice claim and add a late claim for sexual harassment, based on new factual revelations. That scenario is not the case here, where all the relevant facts have long been known to plaintiffs and to their counsel.

Judge Lombardi correctly recognized that plaintiffs' newly-minted claims, though arising from the same alleged conduct dating back to December 1998, were subject to different legal standards and different defenses. Thus, the new claims would have required a substantial adjournment to permit defendants a fair chance to investigate and defend those claims. As the judge noted, there were still other possible legal theories that remained unpled. He reasoned that plaintiffs should not equitably be allowed to keep adding new claims to the case every time their preferred theories failed. The judge was completely justified in prohibiting such seriatim proceedings.

Plaintiffs assert in their brief that their LAD claim, if they were permitted to add it to their complaint, furnishes them with "a virtual certain victory." That assertion is, at best, a patent overstatement. Plaintiffs' legal theory under the LAD, which invokes sections 4 and 12 of the statute, does not even remotely appear to apply to the facts of this case.

N.J.S.A. 10:5-4 provides that "[a]ll persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation." Even though a tavern such as Bravo's is "a place of public accommodation" under the LAD, N.J.S.A. 10:5-5, it does not follow that a person's right to be free from strip searches by police officers is an "accommodation," an "advantage," or a "privilege" of such a public place.

Likewise, N.J.S.A. 10:5-12, notably entitled "Unlawful employment practices; discrimination," appears completely irrelevant to plaintiffs' claims. This section provides that it is "unlawful discrimination" for "any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so." N.J.S.A. 10:5-12(e). That provision is clearly meant to encompass only the employment context. Although co-plaintiff Hatcher was an employee of the bar, she had no employment-based relationship with the defendants that would trigger the LAD's employment provisions. The same can be said about the Ashbys.

Recognizing the eleventh-hour nature of plaintiffs' amendment request, their dim prospects for success on their proposed new claims as a matter of law, and our deferential standard of review on matters that affect the integrity of the discovery process and the trial calendar, we have no hesitation in sustaining Judge Lombardi's denial of plaintiffs' motion for leave to amend.

IV.

For all of the foregoing reasons, we affirm the Law Division's order of May 26, 2006 granting summary judgment to the municipal entity defendants, and the court's ensuing order dated July 11, 2006 denying reconsideration of that ruling and denying leave to amend the complaint.

 

Plaintiffs contend in their appellate brief that their recitation of the facts is supported by deposition testimony, although they neglect to supply this court with copies of the pertinent transcripts or page excerpts. See R. 2:6-1(a)(1)(I) (on appeal from summary judgment, the appendix shall include all items submitted to the trial court on the summary judgment motion). In any event, we have accepted at face value plaintiffs' assertions of what the transcripts contain for purposes of our analysis.

Plaintiffs claim that these charges were eventually dismissed, although no documentation of that was supplied to us. Again, we accept plaintiffs' representation as true for purposes of the appeal.

The disposition of those matters is not documented in the record.

Plaintiffs have not furnished the psychological reports with the appellate record. In any event, they are inconsequential proof of damages, given our adverse disposition of the liability issues.

It is unclear why two different judges tried the severed claims against Officer Tucker and Detective Butts, although we presume it was because of routine calendaring practices.

Plaintiffs have chosen not to appeal the dismissal of their tort claims against the public entity defendants. Parenthetically, we note that a public entity is not liable under the Tort Claims Act for the willful misconduct of its employees. See N.J.S.A. 59:2-10.

The City's guidelines are dated 1991, and the statewide guidelines are from 1995. It has not been asserted that different guidelines were in effect in 1998 when the police raids at Bravo's occurred.

Again, we have not been furnished with Ramdy's deposition transcript, but we shall presume that it says what plaintiffs contend it says.

Plaintiffs' brief relies heavily upon a federal case, Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), cert. denied, 519 U.S. 1151, 117 S. Ct. 1086, 137 L. Ed. 2d 219 (1997), in which the Third Circuit reinstated a Section 1983 claim of police misconduct against the City of Pittsburgh, based upon proofs that Pittsburgh had a custom of tolerating the misuse of force by its police officers.

The facts in Beck are quite different from those presented here. Plaintiffs in Beck showed that Pittsburgh had no formalized method of tracking citizen complaints against individual police officers, so that each complaint would only be evaluated in isolation and patterns of misbehavior by the same officers would not be readily detected. Id. at 973-76. That is not true here. Plaintiffs also presented in Beck several years of statistics reflecting an increase in excessive force complaints over time, without any remedial action by Pittsburgh. Plaintiffs have not presented equivalent statistics in this case. In sum, the record here is nowhere nearly as developed or compelling. Consequently, we regard Beck as distinguishable and uncontrolling.

To the extent that plaintiffs belatedly sought to add claims under the State Constitution, we likewise affirm the judge's denial of their motion to amend. Plaintiffs' arguments for reversal on that disposition lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).

(continued)

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A-4299-06T1

May 8, 2008