NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3127-17T1
DETECTIVE SERGEANT FIRST
CLASS ROBERT TOBEY, a
member of the New Jersey State
Police (Badge No. 5224),
STATE OF NEW JERSEY, DIVISION
OF STATE POLICE OF THE STATE
OF NEW JERSEY, DEPARTMENT OF
LAW AND PUBLIC SAFETY, RAYMOND
GUIDETTI and RONALD HAMPTON,
Argued April 29, 2019 – Decided June 6, 2019
Before Judges Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-2720-14.
George T. Daggett argued the cause for appellant.
Michael E. Vomacka, Deputy Attorney General, argued
the cause for respondents (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Michael E. Vomacka, on
Plaintiff Robert Tobey appeals from the February 16, 2018 Law Division
order, denying his motion to file and serve a second amended complaint against
defendants New Jersey State Police (NJSP) and two superior officers. The
proposed amended complaint alleged violations of the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49. On the same date, the trial court
also granted summary judgment to defendants and dismissed plaintiff's
complaint alleging violations of the Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -14. However, plaintiff does not challenge this
latter order in this appeal. 1
On appeal, plaintiff raises the following points for our consideration:
POINT I: ORDER OF THE [TRIAL] COURT . . .
DENYING PLAINTIFF THE RIGHT TO FILE AN
AMENDED COMPLAINT SHOULD BE
POINT II: PLAINTIFF WAS DEPRIVED OF A CEPA
Although plaintiff's notice of appeal initially listed the order granting
defendants summary judgment, in his merits brief, plaintiff expressly waived the
issue. Accordingly, plaintiff's appeal of the summary judgment order must be
Having considered the arguments and applicable law, we affirm.
Plaintiff joined the NJSP in 1994, having graduated in the 114th class and
assigned badge number 5224. On November 24, 2014, plaintiff, then a Detective
Sergeant First Class, filed a three-count CEPA complaint, alleging that
Lieutenant Colonel (LTC) Raymond Guidetti and Captain Ronald Hampton had
violated the promotional standards within the NJSP in order to "promote
personal favorites as opposed to qualified candidates." Plaintiff alleged that
"[d]uring the 2014 promotional events," his 2013 performance evaluation was
not considered and defendants manipulated the promotional list to "change it
from an established ranking order to an alphabetical listing." As a result,
plaintiff "was lowered [o]n the list" and "[a] number of higher badge numbers
were promoted" over plaintiff. By leave granted, on April 15, 2016, plaintiff
filed an amended complaint containing the same three counts. The amended
complaint added an allegation that Guidetti and Hampton violated NJSP's
standard operating procedure by transferring plaintiff to different units "to avoid
On December 22, 2017, defendants moved for summary judgment. On
January 5, 2018, approximately one month before the February 19, 2018 trial
date, plaintiff filed an emergent application to adjourn the summary judgment
motion and trial, file a second amended complaint to include allegations of age
discrimination, reopen discovery, and sanction the Attorney General's Office.
In support, plaintiff's attorney certified that during the pendency of the case, he
had relied upon a September 16, 2015 letter from an Executive Assistant
Attorney General (EAAG) "in connection with an age discrimination complaint"
plaintiff had filed against NJSP with the Equal Employment Opportunity Office
(EEO). The letter stated that "[n]o witness corroborated [plaintiff's] allegations
[of age discrimination] against LTC Guidetti and Captain Hampton."
However, according to plaintiff's attorney, among the statements supplied
by defendants in support of their summary judgment motion was an April 23,
2015 statement by retired Captain Robert Gaugler made during the EEO
investigation,2 which showed that the EAAG's "statement [was] false."
Plaintiff's attorney averred that, in fact, Gaugler's statement corroborated
plaintiff's complaint of age discrimination because Gaugler expressed his belief
that Guidetti and Hampton considered age when making promotion decisions.
Specifically, Gaugler stated Guidetti was "a younger commander and want[ed]
to surround himself with friends or younger people that he [could] control[,]"
Plaintiff's counsel did not indicate that the statement was not previously
provided to him in discovery.
and "Hampton made recommendations for promotion based on them being
junior to him."
The court granted plaintiff's request to adjourn the summary judgment
motion, but denied all other requests. On January 26, 2018, for the same reasons
previously articulated, plaintiff again moved to file a second amended complaint
to include two counts of age discrimination under the LAD, N.J.S.A. 10:5-12,
alleging that by promoting junior members, defendants "discriminated
against . . . [p]laintiff based upon age" and "[t]he false letter submitted to . . .
[p]laintiff by [the EAAG]" was "to cover up" and "further" the "discrimination
against . . . [p]laintiff."
On February 16, 2018, the court conducted oral argument on defendants'
summary judgment motion and plaintiff's motion to file a second amended
complaint. In an oral decision, the court granted defendants summary judgment
and denied plaintiff's motion to amend the complaint. Acknowledging that Rule
4:9-1 affords courts "liberal discretion" in evaluating such applications, the
court noted that "there is a point [at] which . . . prejudic[e] to the opposing party"
and the futility of the amendment militate against granting such an application.
The court explained that while plaintiff placed "great significance on the fact
that the communication signed by [the EAAG] somehow led [him] down the
wrong path," "the fact is that [plaintiff] certainly was aware of the investigation,
he certainly could have decided which claim to pursue[,] and he chose to pursue
the CEPA violation until about several weeks before trial." Further, according
to the court, "at th[at] juncture," a LAD claim "would [not] be successful." The
court entered a memorializing order and this appeal followed.
"Our review here is limited." Franklin Med. Assocs. v. Newark Pub.
Schs., 362 N.J. Super. 494, 506 (App. Div. 2003). "The determination of a
motion to amend a pleading is generally left to the sound discretion of the trial
court, and its exercise of discretion will not be disturbed on appeal, unless it
constitutes a 'clear abuse of discretion.'" Ibid. (first citing Balthazar v. Atl. City
Med. Ctr., 358 N.J. Super. 13, 27 (App. Div. 2003), then quoting Salitan v.
Magnus, 28 N.J. 20, 26 (1958)). "[A]buse of discretion is demonstrated if the
discretionary act was not premised upon consideration of all relevant factors,
was based upon consideration of irrelevant or inappropriate factors, or amounts
to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App.
Div. 2005). "[I]t arises when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting
Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265
(7th Cir. 1985)).
After an answer has been filed, "a party may amend a pleading only by
written consent of the adverse party or by leave of court which shall be freely
given in the interest of justice." R. 4:9-1. "While motions for leave to amend
pleadings are to be liberally granted, they nonetheless are best left to the sound
discretion of the trial court in light of the factual situation existing at the time
each motion is made." Kernan v. One Washington Park Urban Renewal Assocs.,
154 N.J. 437, 457 (1998) (quoting Fisher v. Yates, 270 N.J. Super. 458, 467
(App. Div. 1994)). In exercising its discretion, trial courts should consider two
factors: (1) "whether the non-moving party will be prejudiced," and (2) "whether
granting the amendment would nonetheless be futile." Notte v. Merchs. Mut.
Ins. Co., 185 N.J. 490, 501 (2006).
Because "the factual situation in each case must guide the court's
discretion[,]" Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super.
448, 484 (App. Div. 2012), "[o]ne circumstance to consider is the reason for the
late filing." Id. at 484-85. "Other considerations include whether the newly-
asserted claim would unduly prejudice the opposing party, survive a motion to
dismiss on the merits, cause undue delay of the trial, or constitute an effort to
avoid another applicable rule of law." Id. at 485.
"Thus, while motions for leave to amend are to be determined 'without
consideration of the ultimate merits of the amendment,'" Notte, 185 N.J. at 501
(quoting Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256 (App. Div.
1997)), "courts are free to refuse leave to amend when the newly[-]asserted
claim is not sustainable as a matter of law. In other words, there is no point to
permitting the filing of an amended pleading when a subsequent motion to
dismiss must be granted." Ibid. (quoting Interchange State Bank, 303 N.J.
Super. at 256-57). Additionally, "an exercise of . . . discretion will be sustained
where the trial court refuses to permit new claims . . . to be added late in the
litigation and at a point at which the rights of other parties to a modicum of
expedition will be prejudicially affected." Du-Wel Prods., Inc. v. U.S. Fire Ins.
Co., 236 N.J. Super. 349, 364 (App. Div. 1989).
We are satisfied that there was no abuse of discretion here. The court
determined that permitting the amendment would prejudice defendants and was
futile. According to the court, plaintiff was aware of the contents of the EEO
investigation long before moving to amend his complaint, yet waited until after
discovery had ended, defendants moved for summary judgment, and the
scheduled trial date was mere weeks away.
Further, as plaintiff did not move to file his amended complaint for alleged
age discrimination accruing in 2014 until 2018, his proposed LAD claim was
past the expiration of the two-year statute of limitations. See Montells v.
Haynes, 133 N.J. 282, 293 (1993) ("Fairness to the accuser, the accused, and to
the judicial system require a timely adjudication of discrimination claims. Thus,
both fairness and efficiency support a two-year statute of limitations.").
Relying on Rule 4:9-3 and Viviano v. CBS, Inc., 101 N.J. 538 (1986),
plaintiff contends that his LAD claim should relate back to the allegations raised
in his initial pleadings because "[t]here was sufficient information in the original
[c]omplaint from which could be drawn an allegation of age discrimination."
Rule 4:9-3 governs when amendments relate back and states,
[w]henever the claim . . . asserted in the amended
pleading arose out of the conduct, transaction[,] or
occurrence set forth or attempted to be set forth in the
original pleading, the amendment relates back to the
date of the original pleading; but the court, in addition
to its power to allow amendments may, upon terms,
permit the statement of a new or different claim . . . in
In Viviano, the plaintiff was injured operating a malfunctioning record
album press at the CBS plant where she worked. 101 N.J. at 542. The press had
been assembled from components provided by various suppliers. Ibid. By the
time the plaintiff discovered that Sybron's predecessor had manufactured the
defective component, the two-year period of limitations for personal injury
actions had expired. Id. at 543-45. However, because the plaintiff could not
timely identify Sybron due to "the frustration of discovery" by CBS, our
Supreme Court permitted the plaintiff to preserve her claim against Sybron by
allowing her sixth amended complaint, asserting a cause of action against
Sybron, to relate back to the original complaint. Id. at 556.
The Court concluded
that plaintiff should not be deprived of her day in court
because an adverse party failed to comply with the rules
for discovery. Under the singular circumstances of this
case, which include Sybron's acknowledgment that it
has not been prejudiced, justice requires that we invoke
[Rule] 1:1-2 and relax [the fictitious-party practice
under] [Rule] 4:26-4 so that the sixth amended
complaint relates back to the original complaint. To do
otherwise would permit concealment and technicality
to triumph over the interests of justice.
[Ibid. (citation omitted).]
Here, plaintiff misguidedly draws a parallel between the circumstances in
this case and in Viviano, and claims that he is entitled to the benefit of the
discovery rule as he was misled by the EAAG's letter. He posits that otherwise,
he would have included a cause of action for age discrimination in his original
complaint. However, plaintiff's proposed amended complaint pleads entirely
new facts, new theories, and a different cause of action from those pled in the
Specifically, plaintiff's first amended complaint alleged a CEPA violation
based on his objection to defendants manipulating the promotional system
within the NJSP in order to promote personal favorites with fewer qualifications,
over more qualified candidates, like plaintiff. Plaintiff's proposed amended
complaint alleged a LAD claim based on defendants discriminating against him
because of his age by promoting younger members over him. Because plaintiff's
proposed amended complaint does not arise out of the "conduct, transaction[,]
or occurrence set forth or attempted to be set forth in the original pleading" as
required by Rule 4:9-3, the relation-back doctrine is inapplicable.
"[A]n entirely new and distinctly different cause of action cannot by
means of an amendment of the pleadings be introduced after the statute has
tolled the action[,]" Young v. Schering Corp., 275 N.J. Super. 221, 230 (App.
Div. 1994) (quoting Welsh v. Bd. of Ed. of Tewksbury Twp., 7 N.J. Super. 141,
145 (App. Div. 1950)), aff'd on other grounds, 141 N.J. 16 (1995), and "the
notion of liberality in permitting amendments is not 'intended to afford a refuge
to languid and dilatory litigants.'" Id. at 231 (quoting Welsh, 7 N.J. Super. at
146). "It would be supremely impracticable, if not pernicious, to condone a
practice which would permit adventurous litigants by means of successive
amendments to the pleadings in the original action to prosecute, seriatim, a
procession of distinctly disparate causes of action and thus elude the statutory
limitations of time." Id. at 232 (quoting Welsh, 7 N.J. Super. at 146).
Plaintiff also argues that he "could not have made a CEPA election
because he did [not] know that there were alternatives to CEPA." He states
that "[w]hat the [NJSP] is saying in this case is, we deprived you of a cause of
action by deception and now, you should continue to be deprived of a cause of
action even though we tricked you." In that regard, plaintiff essentially claims
the EAAG's alleged false statement prevented him from electing to file a timely
LAD claim, rather than a CEPA violation. However, while plaintiff's original
complaint was filed on November 24, 2014, the EAAG's letter was dated
September 16, 2015. Therefore, the EAAG's letter could not have impacted his
decision to make a CEPA election because the letter was not sent until after his
complaint was filed.