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                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3127-17T1

member of the New Jersey State
Police (Badge No. 5224),





                    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
             the brief).


      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 . . .
             AMENDED      COMPLAINT     SHOULD    BE


    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
considered abandoned.
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

promoting [him]."

      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."

We disagree.

      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
            the pleading.

      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

original complaint.

      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.