Opinion
Civil Action No. 08-0351 (FLW).
April 11, 2011
MEMORANDUM OPINION
Currently pending before the Court is Plaintiffs Edena Amentler and Michael Perselay's (collectively, "Plaintiffs") motion seeking leave to file a Second Amended Complaint in order to add a count for premises liability and negligent security, amend existing counts to include additional allegations and add approximately 50 new factual allegations to the Amended Complaint. All Defendants oppose Plaintiffs' motion. The Court has fully reviewed the papers submitted in support of and in opposition to Plaintiffs' motion, including the supplemental briefing requested by the Court on February 14, 2011. The Court considers Plaintiffs' motion without oral argument pursuant to FED.R.CIV.P. 78. For the reasons set forth below, Plaintiffs' motion is DENIED.
I. Background and Procedural History
The parties and the Court are all familiar with the facts underlying this litigation. As such, they are not restated at length herein. This matter arises out of the alleged rape and sexual assault of Plaintiff Edena Amentler ("Amentler") by Defendant Jeffrey J. Krol ("Krol"). The alleged rape and sexual assault occurred while Amentler attended a party being hosted at the residence of Defendants George P. Owen and George A. Donzella, both of whom along with Krol and Defendant Tom J. Stiner are owner-operators of Defendant 69 Main Street, LLC d/b/a Fox and Hound Tavern at the Lebanon Hotel (the "Fox and Hound").
In their Amended Complaint, Plaintiffs bring several claims against Defendants arising out of Krol's alleged rape and sexual assault of Amentler. Specifically, Amentler asserts claims for (1) assault and battery; (2) false imprisonment; and (3) assault and battery with a deadly weapon against Krol. Plaintiffs assert claims for (1) placing one in enhanced risk of developing HIV or AIDS; and (2) intentional infliction of emotional distress. And Plaintiffs assert claims for (1) negligent infliction of emotional distress; (2) New Jersey Law Against Discrimination ("NJ LAD"), sexually hostile work environment; (3) NJ LAD, quid pro quo sexual harassment; (4) NJ LAD, unlawful retaliation; (5) aiding and abetting liability; (6) failure to maintain a safe workplace; (7) Dram Shop Act and failure to maintain a safe environment; (8) Dram Shop Act and serving alcohol to a minor; (9) violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e, et seq. — § 704(a); and (10) violations of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. against all Defendants. Plaintiffs now seek to amend their Amended Complaint in order to add a claim for premises liability and negligent security. They also seek to supplement a number of existing counts and to add approximately 50 new factual allegations through their proposed Second Amended Complaint.
Plaintiffs argue that they should be permitted to make the aforementioned amendments pursuant to the liberal standards set forth in FED.R.CIV.P. 15. In this regard, Plaintiffs argue that delay alone is not a sufficient reason to deny their motion and that because their motion was made during the discovery stage of proceedings and before dispositive motions were filed, Defendants will not be prejudiced by the proposed amendments. Plaintiffs further argue that there will be no prejudice to Plaintiffs because their proposed amendments, including "the only entirely new count[,] concerns the same events and little or no new discovery will be required to decide it." (Pls. Br. at 3). In addition, Plaintiffs contend that their amendments, and specifically, their proposed new claim for premises liability and negligent security, are not futile.
Defendants oppose Plaintiffs' motion. Defendants argue that Plaintiffs unduly delayed in filing the instant motion, which seeks to add allegations based on alleged facts known to Plaintiffs prior to the start of discovery. Defendants note that discovery was essentially complete at the time Plaintiffs filed the instant motion and, despite Plaintiffs' claims to the contrary, argue that if Plaintiffs' proposed amendments are allowed significant additional discovery will be required. Defendants contend that this is true because, unlike Plaintiffs' existing claims, Plaintiffs' proposed premises liability and negligent security claim focuses not on individual acts that occurred at the party but on the party as a whole. As such, Defendants will have to inquire into completely unexplored facts relating to Plaintiffs' basis for their claim that the owners of the property where the party was held and the owners of the Fox and Hound should be held liable for the alleged intentional, criminal acts of Krol. Moreover, Defendants assert that not only will Plaintiffs' proposed amendments require additional fact discovery, but instead, they will likely require expert testimony regarding the appropriate safety and security standards to be utilized at parties in locations such as that at issue here. Further, Defendants claim that in light of the need to take the aforementioned discovery, if Plaintiffs are permitted to file their proposed Second Amended Complaint, the dates set for filing dispositive motions will necessarily be adjourned. As a result, Defendants argue that they will be prejudiced by Plaintiffs' proposed amendments.
Defendants further argue that Plaintiffs' proposed amendments are futile. In this regard, Defendants argue that Plaintiffs' proposed new premises liability and negligent security claim, which is premised on Plaintiffs being Defendants' business invitees, is futile because the facts alleged in the proposed Second Amended Complaint establish that Plaintiffs were not Defendants' business invitees, but instead were social guests. Moreover, Defendants contend that even if Plaintiffs have alleged sufficient facts to establish that Plaintiffs were business invitees, their proposed Second Amended Complaint is devoid of any facts establishing that Defendants breached their duty of care to Plaintiffs. As such, Defendants argue that Plaintiffs' motion should be denied.
II. Analysis
A. Standard of Review
According to FED.R.CIV.P. 15(a), leave to amend the pleadings is generally given freely. See Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). Nevertheless, the Court may deny a motion to amend where there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment." Id. However, where there is an absence of undue delay, bad faith, prejudice or futility, a motion for leave to amend a pleading should be liberally granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004).
In deciding whether to grant leave to amend, "prejudice to the non-moving party is the touchstone for the denial of the amendment." Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (quoting Cornell Co., Inc. v. Occupational Health and Safety Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978)). To establish prejudice, the non-moving party must make a showing that allowing the amended pleading would (1) require the non-moving party to expend significant additional resources to conduct discovery and prepare for trial, (2) significantly delay the resolution of the dispute or (3) prevent a party from bringing a timely action in another jurisdiction. See Long, 393 F.3d at 400. Delay alone, however, does not justify denying a motion to amend. See Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001). Rather, it is only where delay becomes "`undue,' placing an unwarranted burden on the court, or . . . `prejudicial,' placing an unfair burden on the opposing party" that denial of a motion to amend is appropriate. Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984). Moreover, unless the delay at issue will prejudice the non-moving party, a movant does not need to establish a compelling reason for its delay. See Heyl Patterson Int'l, Inc. v. F. D. Rich Housing of Virgin Islands, Inc., 663 F.2d 419, 426 (3d Cir. 1981). Further, in examining bad faith, like undue delay, the Court looks at the moving party's reasons for not amending sooner. Lyon v. Goldstein, Civil Action No. 04-3458 (MLC), 2006 WL 2352595, at *4 (D.N.J. Aug. 15, 2006.
A motion to amend is also properly denied where the proposed amendment is futile. An amendment is futile if it "is frivolous or advances a claim or defense that is legally insufficient on its face." Harrison Beverage Co. v. Dribeck Imp., Inc.,, 133 F.R.D. 463, 468 (D.N.J. 1990) (internal quotation marks and citations omitted). In determining whether an amendment is "insufficient on its face," the Court employs the Rule 12(b)(6) motion to dismiss standard ( see Alvin, 227 F.3d at 121) and considers only the pleading, exhibits attached to the pleading, matters of public record and undisputedly authentic documents if the party's claims are based upon same. See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). When considering whether a pleading would survive a Rule 12(b)(6) motion, the Court must accept all facts alleged in the pleading as true and draw all reasonable inferences in favor of the party asserting them. Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004). "[D]ismissal is appropriate only if, accepting all of the facts alleged in the [pleading] as true, the p[arty] has failed to plead `enough facts to state a claim to relief that is plausible on its face[.]'" Duran v. Equifirst Corp., Civil Action No. 2:09-cv-03856, 2010 WL 918444, *2 (D.N.J. March 12, 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, the facts alleged must be sufficient to "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
While a pleading does not need to contain "detailed factual allegations," a party's "obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555 (citation omitted). Thus, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. In addition, although the Court must, in assessing a motion to dismiss, view the factual allegations contained in the pleading at issue as true, the Court is "not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations." Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007).
B. Discussion
Through their motion to amend, Plaintiffs principally seek permission to amend their Amended Complaint in order to assert a new claim for premises liability and negligent security. Plaintiffs also seek to add allegations to their existing counts, including amending their existing claim for negligent infliction of emotional distress to add essentially all of the allegations that make up their proposed new claim for premises liability and negligent security. Further, Plaintiffs seek to add approximately 50 new factual allegations to their Amended Complaint.
1. Futility
In relation to claims for premises liability and negligent security, "[t]he issue whether a defendant owes a legal duty is generally a question of law for the court to decide" as is "the scope of [the] duty owed[.]" Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997). "Whether a duty exists depends upon an evaluation of a number of factors including `[t]he nature of the underlying risk of harm, that is, its foreseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interest of, and the relationships between or among the parties, and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution.'" Kuehn v. Pub Zone, 364 N.J. Super. 301, 310 (App. Div. 2003) (quoting J.S. v. R.T.H., 155 N.J. 330, 337 (1998)). While foreseeability of harm alone is not dispositive of whether a duty to exercise reasonable care exits, it is a "crucial element in determining whether imposition of a duty" is appropriate. Id. (quoting Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194 (1994) (internal quotation marks omitted)). In the context of determining whether a duty of care exists, foreseeability refers to "the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care." Id. (quoting Hill v. Yaskin, 75 N.J. 139, 144, 380 A.2d 1107, 1109 (1977)).
Further, while the common law status of the injured party ( i.e., business invitee, social guest/licensee or trespasser) no longer exclusively determines a landowner's liability for injuries, an injured party's status is still helpful in determining the existence and scope of the duty of care owed. Clohesy, 149 N.J. at 502; see also Parks v. Rogers, 176 N.J. 491, 497 (2003). In this regard, the duty of care owed to a business invitee is greater than that owed to a social guest. Parks, 176 N.J. at 497. Similarly, the duty of care owed to a social guest is greater than that owed to a trespasser. Id. Thus, while the duty of care owed to a business invitee generally "encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions" as well as "to guard against any dangerous conditions . . . that the owner either knows about or should have discovered" ( Hopkins v. Fox Lazo Realators, 132 N.J. 426, 434 (1993)), the duty of care owed to a social guest is less onerous. Where a social guest is involved, the landowner does not have a duty to discover latent defects. Indeed, the landowner has no duty to provide a social guest with greater safety than the landowner provides for himself. Parks, 176 N.J. at 498. Instead, the duty owed to a social guest involves either correcting or alerting the social guest to the existence of a dangerous condition of which the landowner either knows or has reason to know. Hopkins, 132 N.J. at 433-34. The duty of care owed to a trespasser is even less substantial and in most circumstances merely encompasses warning the trespasser of "artificial conditions on the property that pose a risk of death or serious bodily harm." Id. at 434.
The Court uses the term social guest herein.
Here, Plaintiffs' base their proposed new premises liability and negligent security claim on the fact that they were Defendants' business invitees and that, as such, Defendants owed them the heightened duty of care. Essentially, Plaintiffs allege that they were Defendants' employees and/or business invitees, that Defendants were business owners and operators, that as business owners and operators, Defendants had a duty to protect Plaintiffs from foreseeable criminal acts of third parties occurring on their premises, that the duties of care to which Defendants were subject to also required them to discover and eliminate dangerous conditions, maintain the premises in a safe condition and avoid creating conditions that would render the premises unsafe and that Defendants breached their duties to Plaintiffs. ( See generally, Proposed Second Am. Compl. ¶¶ 207-229). Plaintiffs specifically rely on the provisions of Section 344 of the Restatement (Second) of Torts in asserting their proposed new claim for premises liability and negligent security. Section 344 addresses acts of third parties that occur on business premises held open to the public.
The Court finds Plaintiffs' proposed new premises liability and negligent security claim to be futile. While "[b]usiness owners and landlords have a duty to protect patrons and tenants from foreseeable criminal acts of third parties occurring on their premises[,]" Plaintiffs have not alleged sufficient facts to plausibly suggest that this duty should be imposed on Defendants. Clohesy, 149 N.J. at 504. New Jersey courts rely on the Restatement (Second) of Torts Section 344 in determining the duty of care owed to business invitees. See Id. at 506-07; see also Kuehn, 364 N.J. Super. at 312 According to Section 344:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
A necessary predicate to fairly imposing the aforementioned duties, which include the duty to discover latent dangerous conditions, is that the landowner actually holds his premises open to the public. This predicate simply is not met here. Plaintiffs have alleged no facts establishing that Defendants held their land open to the public. Indeed, even after crediting all of Plaintiffs' factual allegations, Plaintiffs' proposed Second Amended Complaint fails to allege sufficient facts to permit the Court "to draw the reasonable inference that [D]efendant[s] are liable for the misconduct alleged." Ashcroft, 129 S.Ct. at 1949. Instead, Plaintiffs' proposed Second Amended Complaint, which explicitly states that Defendants' land was held open only to a select group of individuals: Defendants' "employees, business invitees and attendees for the Party" (Proposed Second Am. Compl. ¶ 214), is "insufficient on its face." Alvin, 227 F.3d at 121. Simply put, the Court finds that Plaintiffs, who acknowledge that Defendants' party was an invitation only event that the public at large was not permitted to attend ( see Proposed Second Am. Compl. ¶¶ 19; 22-24; Exhibit A), have not plead sufficient facts to state a claim to warrant the imposition of the heightened duties generally reserved for situations involving business invitees on Defendants. As a result, Plaintiffs' proposed new claim for premises liability and negligent security fails to state a claim to relief that is plausible on its face. Duran, 2010 WL 918444 at *2. Consequently, the Court finds that this claim, along with all of the allegations related thereto, are futile.
Another predicate to Plaintiffs' proposed new claim is that the land is being held open for "business purposes." While it is not overwhelmingly clear that Defendants held their party for a business purpose, accepting all of the facts alleged in Plaintiffs' proposed Second Amended Complaint as true and drawing all reasonable inferences in Plaintiffs' favor, the Court finds that Plaintiffs have alleged enough facts to make that claim plausible on its face.
Furthermore, even assuming that Plaintiffs' proposed new claim for premises liability and negligent security contained sufficient facts to warrant the imposition on Defendants of a duty to discover and eliminate or warn against latent dangerous conditions, the Court would nevertheless still find the claim to be futile. In this regard, the Court notes that "[b]usiness owners and landlords have a duty to protect patrons and tenants from foreseeable criminal acts of third parties occurring on their premises." Clohesy, 149 N.J. at 504 (emphasis added). Foreseeability is determined by evaluating the totality of the circumstances. Id. at 506-07. New Jersey Courts rely on Comment (f) to the Restatement (Second) of Torts Section 344 "as a standard for determining in cases of injury by third persons `which criminal incidents may give rise to liability'" or, in other words, the scope of the duty owed. Kuehn, 364 N.J. Super. at 699 (quoting Butler v. Acme, 89 N.J. 270, 280 (1982)); see Clohesy, 149 N.J. at 507. Comment (f) provides:
Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
Here, the Court finds that under the totality of the circumstances, Plaintiffs' proposed new premises liability and negligent security claim is futile because, even when viewed in the light most favorable to them, Plaintiffs' allegations do not support the proposition that it was foreseeable that Krol in particular or, more generally, any of Defendants' openly homosexual, male party guests would sexually assault and rape one of Defendants' female party guests. Indeed, even if the Court frames the issue more broadly, the Court finds that Plaintiffs' allegations fail to support the proposition that it was foreseeable that any of Defendants' party guests would sexually assault and rape another guest.
In this regard, the Court notes that Plaintiffs' proposed Second Amended Complaint is devoid of any allegations asserting that similar, violent criminal acts occurred at other parties hosted by Defendants or at other parties hosted in Defendants' neighborhood. Indeed, Plaintiffs do not even allege that similar, violent criminal acts occurred at Defendants' tavern, the Fox and Hound, or in close proximity thereto. Instead, the only allegation substantiating the purported foreseeability of the alleged sexual assault and rape of one of Defendants' guests is Plaintiffs' conclusory statement that "[a]s tavern owners and operators, Defendants knew or should have known of the correlation between alcohol and violent criminal acts [sic] made the sexual assault and rape Defendant Krol committed against Plaintiff Amentler foreseeable because its occurrence could and should have been reasonably anticipated under the circumstances." (Proposed Second Am. Compl. ¶ 223). The Court does not credit this unsupported claim. See Baraka, 481 F.3d at 211 (noting that Court is "not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations.")
In light of the fact that Plaintiffs' allegations do not support the proposition that it was foreseeable that any of Defendants' party guests would sexually assault and rape another guest, the Court finds that Plaintiffs have not established that Defendants had a duty take precautions against same. As such, the Court finds that Plaintiffs' proposed new claim for premises liability and negligent security, and all allegations related thereto, are futile.
2. Prejudice
Regardless of whether Plaintiffs' proposed amendments are futile, the Court would nevertheless deny Plaintiffs' motion because It finds that Defendants would be unfairly prejudiced by same. While Plaintiffs correctly point out that their proposed amendments concern the same events at issue in the existing Amended Complaint, namely the party held by Defendants on July 4, 2007 and the alleged sexual assault and rape of Amentler by Krol, Plaintiffs incorrectly assert that, as such, little or no new discovery will be required by Defendants if the proposed amendments are allowed. To the contrary, the Court finds that significant additional discovery will have to be conducted if Plaintiffs' motion is granted.
For example, Defendants will have to explore several new facts raised by Plaintiffs for the first time in their proposed Second Amended Complaint, such as the fact that Amentler allegedly worked at the party and was intoxicated. ( See, e.g., Proposed Second Am. Compl. ¶¶ 37; 64). Further, despite the fact that Plaintiffs' proposed amendments relate to the same events at issue in the Amended Complaint, Plaintiffs' proposed addition of a claim for premises liability and negligent security would substantially change the landscape of this litigation. As the matter currently stands, Plaintiffs' Amended Complaint focuses on individual acts that occurred at the party. In contrast, Plaintiffs' proposed new claim focuses on the party as a whole and whether the hosts of the party complied with certain standards of care. Such a shift would necessarily require additional discovery. Indeed, Defendants would have to be given the opportunity to delve into currently unexplored facts concerning Plaintiffs' claim that Defendants should be held liable for the alleged intentional, criminal acts of Krol.
So too would Plaintiffs' proposed amendments to their existing claim for negligent infliction of emotional distress, which are essentially comprised of the allegations that make up Plaintiffs' proposed new claim for premises liability and negligent security.
Further, not only would the addition of Plaintiffs' new proposed premises liability and negligent security claim and related factual allegations require the aforementioned additional fact discovery, but they would likely also result in the need for expert testimony. As Defendants note, the addition of this claim and related amendments would likely result in Defendants needing to hire expert witnesses to report and testify on the appropriate safety and security standards to be utilized at parties in locations such as that at issue here.
Needless to say, not only would the above-referenced additional discovery result in significant extra expenses for Plaintiffs, but it will also delay these proceedings. Discovery, now closed, will have to be reopened. The date for dispositive motion practice, which has already been delayed pending a decision on this motion, will be further delayed in order to provide time to complete the necessary discovery. Under these circumstances, the Court finds that Plaintiffs' proposed amendments would be prejudicial to Plaintiffs. This is particularly true in light of the fact that the purported facts upon which Plaintiffs base their proposed amendments were nearly all known to Plaintiffs at the time they filed their initial Complaint. As a result, Plaintiffs' motion to amend is denied.
III. Conclusion
For the reasons stated above, Plaintiffs' motion seeking leave to file a Second Amended Complaint in order to add a count for premises liability and negligent security, amend existing counts to include additional allegations and add approximately 50 new factual allegations to the Amended Complaint is DENIED. An appropriate Order follows.