Callaway v. Small

Decision Date22 December 2021
Docket Number1:21-cv-12058
CourtU.S. District Court — District of New Jersey
PartiesCRAIG CALLAWAY Plaintiff, v. MARY SMALL SR., CITY OF ATLANTIC CITY, DEPUTY CHIEF JAMES A. SARKOS, OFFICER KEVIN FRANCIS Defendants .
OPINION

Hon Joseph H. Rodriguez, USDJ

This matter is before the Court on the Motion to Dismiss the Amended Complaint [Dkt. 17] filed by defendants Marty Small Sr. (“Small”), City of Atlantic City (Atlantic City), Deputy Chief James A Sarkos and Officer Kevin Francis (“Officer Francis”) (collectively Defendants), and the cross-motion for leave to file an amended complaint filed by plaintiff Craig Callaway (Plaintiff). [Dkt. 19]. For the reasons set forth below, the Court will deny Plaintiff's motion for leave as moot and grant Defendants' Motion to Dismiss without prejudice.

I. Factual Summary

The following facts are taken from the Plaintiff's Amended Complaint [Dkt. 16, “Am. Compl.”][1] and a publicly available video clip of the events that gave rise to this lawsuit.[2] Small is the Mayor of Atlantic City, New Jersey. [Am. Compl. ¶ 6]. On May 2, 2021, Small and others appeared at a residential neighborhood in Atlantic City to campaign for his reelection as Mayor. [Am. Compl. ¶ 14]. Officer Francis, a police officer with the Atlantic City Police Department, provided personal security to Small as Small campaigned. [Am. Compl. ¶ 16]. Plaintiff “came to be lawfully present on the public sidewalk” where Small was campaigning. [Am. Compl. ¶ 15].

When Plaintiff came “into view of Mayor Small, a raucous verbal altercation ensued.” [Am. Compl. ¶ 18]. While the Amended Complaint does not allege who initiated the altercation, video evidence shows Plaintiff and Small screaming at one another and pacing toward and away from one another on a public sidewalk. The Amended Complaint alleges that, during this altercation, Small “threatened] violence upon Plaintiff, ” stating “You're gonna see ... I'mma [sic] get somebody that's about that life, and let's see what you do, ” [Am. Compl. ¶ 27], and “I'm gonna whoop your fucking ass, bitch.” [Am. Compl. ¶ 29]. The latter statement is clearly audible in the video. Small also “slapped a cell phone out of the hands of one bystander who had been recording the events.” [Am. Compl. ¶ 24]. The video also shows Plaintiff repeatedly calling Small a “child molester protector.”[3] Though Officer Francis was present, he did not intervene in this altercation or arrest Small. [Am. Compl. ¶¶ 35-39]. Plaintiff alleges that he told Officer Francis that Small threatened Plaintiff and Officer Francis responded by saying “I know.” [Am. Compl. ¶ 36].

Plaintiff seeks to hold Defendants liable for Small's conduct and Officer Francis's failure to arrest Small for making “terroristic threats” toward Plaintiff in violation of state law. [Am. Compl. ¶¶ 31, 38]. The Amended Complaint alleges the following counts: Count I for violation of 42 U.S.C. § 1983 for “failure to intervene and arrest” against Officer Francis; Count II for “deliberate indifference” in violation of 42 U.S.C. § 1983 against Officer Francis; Count III for “selective and discriminatory enforcement of law” in violation of 42 U.S.C. § 1983 against Officer Francis; Count IV for “municipal liability for unconstitutional custom or policy” under 42 U.S.C. § 1983 against Atlantic City; Count V for failure to train and supervise under 42 U.S.C. § 1983 against Atlantic City; Count VI for civil conspiracy to interfere with civil rights against Small and Officer Francis in violation of 42 U.S.C. § 1985(3); Count VII for gross negligence against all Defendants; Count VIII for negligence as to all Defendants; Count IX for assault as to Small; Count X for violation of the New Jersey Civil Rights Act against Small and Officer Francis; and Count XI for common-law civil conspiracy against Small and Officer Francis. Plaintiff asserts federal question subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343 based on his federal statutory claims alleged at Counts I-VI.

II. Procedural Background and Complications

The parties have created a procedural quagmire by failing to submit timely filings to the Court. Plaintiff filed his initial complaint in this Court on June 2, 2021. [Dkt. 1]. After the parties agreed to extend the opposition deadline to July 31, 2021, Defendants filed a timely motion to dismiss the initial complaint on July 27, 2021. [Dkt. 11, 13]. Without obtaining Defendants' consent or leave from the Court, Plaintiff filed his Amended Complaint on August 24, 2021-twenty-eight days after Defendants filed their motion to dismiss-to address deficiencies in his complaint. [Dkt. 16].

The Amended Complaint violates Federal Rule of Civil Procedure 15. Rule 15(a) states that

(1) A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Plaintiff violated Rule 15(a)(1)(B) by filing his Amended Complaint more than twenty-one days after Defendants filed their initial motion to dismiss.[4] Plaintiff also violated Rule 15(a)(2) by filing his untimely Amended Complain without leave of Court or Defendants' consent.

Defendants compounded this problem with an untimely submission of their own. Defendants filed the present motion to dismiss on September 14, 2021, twenty-one days after Plaintiff filed his amended Complaint. [Dkt. 17]. Rule 15(a)(3) provides fourteen days to respond to an amended pleading. Defendants argue that Rule 15(a)(3) only contemplates the time to oppose amended complaints filed in compliance with Rule 15. [Dkt. 17-1 at 14-15]. Defendants do not cite any authority for this proposition, or explain which provision of the Federal Rules of Civil procedure would govern challenges to amended complaints that do not comply with Rule 15. Moreover, if Rule 15(a)(3) only governed responses to properly filed amended complaints, parties would be free to challenge amended complaints that fail to comply with Rule 15(a)(1) or (2) at their leisure. Thus, the Court disagrees with Defendants' argument that their motion is proper despite being untimely.

Rather than file an opposition brief, Plaintiff cross-moved for an order retroactively granting Plaintiff leave to amend his complaint. [Dkt. 19-1]. Plaintiff argues that the proposed amendments are not futile because the amendments would withstand challenge on a motion to dismiss. [Dkt. 19-1 at 6-7]. In making this argument, Plaintiff essentially opposes the merits of Defendants' motion to dismiss because the standard for evaluating the futility of an amendment is the same as the standard for evaluating a motion to dismiss. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (“Futility means that the complaint, as amended, would fail to state a claim upon which relief could be granted. In assessing futility the District Court applies the same standard of legal sufficiency as applies under Rule 12(b)(6).” (citations and quotations omitted)). Plaintiff also argues that the Court should not consider Defendants' arguments to the contrary because, as stated above, Defendants' motion to dismiss is untimely. [Dkt. 19-1 at 7-8].

Defendants then opposed Plaintiff's cross-motion, arguing that the motion for leave was untimely, that Plaintiff failed to comply with Local Rule 15.1, and that that the amendments are futile. [See Dkt. 20]. With respect to the Local Rule 15.1 argument, Defendants argue- correctly-that the motion for leave failed to indicate whether the motion was opposed, provide a copy of the proposed amended pleading, and identify the differences between the original and amended pleading as Local Rule 15.1 requires.

The Court must determine where to begin its analysis in light of these procedural missteps. Two (or three) wrongs do not make a right, and the Court is reluctant to bless Plaintiff's “file now and ask later” approach to his amended complaint, particularly when he ignored Local Rule 15.1 altogether. But it would be inefficient to return the case to the status quo ante by rejecting all of the filings at issue here for procedural defects. See Fed.R.Civ.P. 1 (noting that the Federal Rules of Civil Procedure “should be construed, administered, and employed by the court ... to secure the just, speedy, and inexpensive determination of every action..”); Travelers Cas. & Sur. Co. of Am. v. A.G. Cullen Const., Inc., No. CIV.A 07-0765, 2009 WL 2232906, at *5 (W.D. Pa. July 24, 2009) ([T]he Court has discretion to set the case management deadlines in a manner to promote the goals of speedy and efficient resolutions of all actions.”). It would also be unfair to selectively forgive the errors of one party while penalizing the other's. Thus, the Court will treat Plaintiff's amended complaint and Defendant's motion to dismiss as if they had been filed in a timely manner, and dismiss Plaintiff's cross-motion for leave to amend as moot.

The Court believes that this approach does not cause either party undue prejudice or deprive them of an opportunity to present their respective positions. As noted above, the Court must apply the same standard of review to Rule 12(b) and Rule 15 challenges, and both parties have filed their respective motions with this standard in mind.

Moreover the Court will review the Amended Complaint substantively to assure itself that it has jurisdiction over this case. See Simon v. Mullgrav, No. CV 2017-0007, 2021...

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