OPINION OF THE COURT
FUENTES, Circuit Judge.
A little over two years into the civil-rights suit brought by Joan Mullin ("Mullin") over the tragic prison suicide of her son, Robert Mullin ("Robert"), Mullin's attorney received a discovery document with the potential to reshape the case. A previously undisclosed investigative report about the night Robert died contained statements by fellow New Jersey inmates about a prison guard who allegedly refused Robert's requests for psychiatric assistance — and urged Robert to kill himself instead. But while Mullin's attorney received this report mid-case, it was not reviewed in a timely fashion. Instead, due to a clerical error, the disc containing the relevant disclosures was misfiled, and not fully accessed until about ten months later. By that time, Mullin's operative complaint — premised on a less direct knew-or-should-have-known theory of Robert's vulnerability to suicide — had already been dismissed in large part. The District Court denied Mullin's request for leave to amend her complaint, due in part to the delay caused by counsel's error and, after additional motion practice, granted summary judgment in favor of the one remaining defendant, bringing the litigation to a close.
Mullin's appeal encompasses both the dismissal of her operative complaint and the order denying further leave to amend. The latter is the focus of this opinion. For the reasons set forth below, we conclude that the decision denying leave to amend amounted to an impermissible exercise of discretion. Some of the factors relied upon to deny leave are not supported by the record or are at odds with our case law. And while we do not intend to minimize counsel's mistake, it does not, standing alone, support denying leave to amend. Accordingly, we will vacate the order denying leave to amend and will remand for further proceedings.
A. Robert's Death and Mullin's Initial Investigation
During the early morning hours of January 17, 2009, New Jersey prisoner Robert Mullin hanged himself with a bedsheet that he had fashioned into a noose. The twenty-nine-year-old Robert had been in and out of prison for the better part of a decade, in part due to his ongoing struggles with substance abuse. While serving out his latest sentence at a halfway house, Robert was found in possession of contraband. As a result, he was transferred to New Jersey's Central Reception & Assignment Facility ("Assignment Facility"), where he was assessed and assigned to an area of the facility that did not feature extensive or individualized supervision by
In the aftermath, Robert's mother, Joan Mullin, sought answers. What few were given, however, were incomplete and at times inaccurate. In one instance, she was told that her son had died at a completely different facility, the Trenton Psychiatric Hospital — an error repeated on his death certificate. Despite some slow progress, she continued to lack key information about the final days and hours of Robert's life and the people and entities to whom his care was entrusted.
B. Mullin Files the Original Complaint in January 2011
Despite this state of affairs, Mullin filed suit in the District of New Jersey shortly before the two-year mark of Robert's death,
Mullin named a variety of defendants, several of whom were employed by the State of New Jersey and represented by the New Jersey Attorney General's office. We will refer to these as the "State Defendants."
C. Mullin Twice Amends Her Complaint
Mullin twice amended her complaint to both flesh out the facts — in part to account for interim discovery she received from non-State defendants — and to modify the list of defendants. In particular, Mullin sought to add Officer Nicholas Dimler, the Assignment Facility guard who, according to the medical examiner's report, was the last person (who wasn't a fellow inmate) to see Robert alive — and the one who later discovered his body.
Mullin's first attempt to amend, filed in response to the defendants' initial Rule 12 motions, was granted in part and denied in part. Among other things, the Magistrate Judge determined that the proposed amended complaint lacked sufficient detail of Dimler's involvement in Robert's death and did not state a plausible claim for relief against him. Under these constraints, Mullin filed her first amended complaint ("FAC") in December 2011.
After obtaining additional discovery, Mullin again asked to amend in July 2012, arguing in part that she could now plead a viable claim against Officer Dimler. Mullin alleged essentially that Officer Dimler knew or should have known of Robert's history of suicide and psychiatric illness; that Dimler failed to review records that would have alerted him to Robert's condition; and that Dimler failed to follow prison policies and reasonable practices pertaining to inmates with Robert's vulnerabilities. This time, the Magistrate
D. While the Motions to Dismiss are Pending, Mullin Receives New Evidence in Discovery
Although Mullin had obtained some discovery by the time the SAC was filed — almost two years into the litigation — she had received no disclosures from the State Defendants and, by extension, from the Department of Corrections or the State itself. The State Defendants finally made two separate document disclosures, pursuant to an amended pretrial scheduling order, while their motion to dismiss was pending. Both sets bear on Mullin's later attempt at amendment, although for very different reasons.
One set of disclosures, from July 2013 (the "July 2013 disclosures"), contained information on various prison policies regarding suicide watch, close custody, and screening procedures employed by the Assignment Facility. For instance, Mullin received a policy manual on "Special Needs Inmates," covering inmates who suffer from certain psychiatric disorders and are "unable to meet the functional requirements of incarceration without mental health treatment."
More important was a set of disclosures from April 2013 (the "April 2013 disclosures") that, by contrast, contained information directly relevant to Robert and his history in the prison system. Among the new revelations were statements from fellow inmates about a prison guard who allegedly ignored Robert's requests for mental health services and, instead, told him to commit suicide.
These statements were contained in a February 2009 Department of Corrections Administrative Investigation Report ("the Report"). According to the Report, a previously unknown guard, Officer X,
E. Counsel's Error: The April 2013 Discovery is Misplaced
But this potential would go untapped — at least for the time being — because Mullin did not initially know that it had been received. The April 2013 material was subdivided and Bates stamped as "DOC MULLIN 0001-392" and "CONFIDENTIAL MULLIN 0001-305."
F. The District Court Dismisses the SAC
With Mullin unaware of the new discovery, the SAC — whose allegations were premised on the theory that the defendants should have known, based on Robert's answers to intake questions and his transfer/medical records, that he was particularly vulnerable to suicide — remained the operative complaint. Thus, unlike prior motions to dismiss, which had been interrupted by Mullin's requests to amend, these Rule 12 motions were resolved on the merits, with the District Judge directly addressing Mullin's claims for the first time. In a November 2013 decision, the District Court granted the State Defendants' motion to dismiss in its entirety, although the Court allowed Mullin's claims against the Assignment Facility intake nurse to proceed to summary judgment and, thus, the case remained ongoing.
G. Realizing the Mistake, Counsel Moves to Amend
Despite indications that something was missing, Mullin's attorney only realized her mistake in February 2014 — ten months after the April 2013 disclosures, and three months after the District Court had dismissed the SAC in large part — during a conversation with attorneys for non-state defendants who were privy to the CONFIDENTIAL MULLIN material. In the flurry of activity that followed, Mullin's attorney advised the District Court of her mistake and, after being told by the court to delay formally moving to amend until a pending reconsideration motion was resolved. Mullin moved in August 2014 to amend her complaint to include information from the April and July 2013 disclosures. In addition to repleading claims against Dimler and other previously dismissed defendants, Mullin's proposed Third Amended Complaint ("TAC") incorporated the material from the April and July 2013 disclosures and added Officer X, a fellow guard, and four supervisors as defendants.
H. Leave to Amend is Denied
The presiding Magistrate Judge denied leave to amend, finding that Mullin's delay was undue and that the defendants would suffer prejudice if amendment were allowed. The Judge also suggested in passing that claims against new parties would not "relate back" for limitations purposes under Rule 15(c). The Magistrate Judge did not directly address the futility of the proposed amendment, which had not been raised by the State Defendants. After Mullin objected to the Magistrate Judge's order, the District Court affirmed it in a short decision.
A. Rule 15 and Standard of Review
Leave to amend is governed by Rule 15, "Amended and Supplemental Pleadings," which generally conditions amendment on the court's leave or the opposing party's written consent.
In determining whether leave to amend might reasonably be denied, courts are guided by the Foman factors, named for the Supreme Court's decision in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Denial of leave to amend can be based on undue delay, bad faith or dilatory motive on the part of the movant; repeated failure to cure deficiencies by amendments previously allowed; prejudice to the opposing party; and futility.
A decision on whether to permit amendment of the pleadings generally falls within the District Court's discretion. It follows that we review for abuse of that discretion, except where amendment is denied for legal reasons drawing de novo review (such as when the proposed amendment would fail to state a claim).
While abuse of discretion is ordinarily a deferential standard of review, it has bite in this context; the District Court's discretion, circumscribed by the Rule 15's directive in favor of amendment, must be "exercised within the context of liberal pleading rules."
Although the District Court gave reasons of its own when declining to set aside the Magistrate Judge's order, we are really reviewing the Magistrate Judge's exercise of discretion in entering the order, and not the District Court's deferential review of the same. Accordingly, we will focus our review on the Magistrate Judge's analysis of the Foman factors.
1. Undue Delay
The "undue delay" factor recognizes that a gap between when amendment becomes possible and when it is actually sought can, in certain circumstances, be grounds to deny leave to amend. While simple delay cannot justify denying leave to amend by itself, delay that is "undue" — a delay that is protracted and unjustified — can place a burden on the court or counterparty, or can indicate a lack of diligence sufficient to justify a discretionary denial of leave.
The Magistrate Judge broke down the delay in this case into two discrete periods. First, the Judge assessed the delay arising from the July 2013 "policy" discovery, which Mullin's counsel consciously chose not to use in an earlier amendment. Second, the Judge assessed the more-significant delay arising from the misplaced April 2013 discovery, which counsel was not aware of until February 2014.
i) July 2013 Discovery
Mullin's attorney argued that her reasons for declining to amend immediately upon receiving the July 2013 discovery were reasonable, and that the delay before
The Magistrate Judge found these reasons to be unconvincing, explaining that the closing-of-the-record point was "difficult to understand," as "[Mullin] has not refrained from seeking leave from the Court for various reasons."
We disagree in part with the Magistrate Judge's reasoning, and in particular with suggestion that counsel's "tactical" decision transformed the delay into one that was undue. While we have disdained a wait-and-see approach to amendment, our major cases doing so fall in the post-judgment posture discussed above.
Our normal civil rights rule is put to the test in this matter, however, given the sheer complexity of the proceedings, as well as the fact that Mullin was previously granted leave to amend.
Perhaps most important is that the SAC was informally tested on the merits before the motion to dismiss was resolved — and received a clean bill of health from the same Magistrate Judge, who opined that it passed muster under Twombly/Iqbal.
ii) April 2013 Discovery
The April 2013 discovery — the disclosures containing the Report — presents a thornier problem. About ten months passed between the time the State Defendants sent Mullin's attorney the April 2013 disclosures and the time the attorney realized that she had misplaced and failed to review them. Certainly, Mullin had a "reason" for not amending sooner: she was unaware of the evidence that she had been provided.
In addressing counsel's error, the Magistrate Judge focused on the "many opportunities plaintiff had to realize that the disc was missing and to follow up or at least make inquiry," stating further that "no inquiry was made until counsel for defendants made Plaintiff's counsel aware of the oversight during a conversation in February 2014."
Beginning with this last point, the record does not entirely support the Judge's conclusion that Mullin's attorney failed to make "inquiries." To the contrary, she continued to ask the Attorney General's office for relevant discovery; the record contains, for instance, a June 2013 email to the Attorney General where counsel complains that nothing relevant to her constitutional claims has been obtained from the State Defendants.
However, the central question is whether this is the sort of error by an attorney that can be excused. The Magistrate Judge indicated only that the error "should not be excused,"
It is well established that "clients must be held accountable for the acts and omissions of their attorneys."
While misunderstandings based on law or procedure rarely constitute excusable neglect, clerical errors have been found to do so, taking "into account whether the mistake was a single unintentional incident (as opposed to a pattern of deliberate dilatoriness and delay), and whether the attorney attempted to correct his action promptly after discovering the mistake," as a "mistake could occur in any attorney's office, no matter how well run."
Rule 15, which governs amendment, does not mention excusable neglect or mistake, but this is in line with Rule 15's general omission of any enumerated substantive or procedural limitation on amendment. And based on the similarities
Here, even assuming the worst — that the delay ran at least ten months, and that Mullin's attorney failed to realize the error despite clues to the contrary — we cannot say that the mistake here was per se inexcusable, rendering the delay "undue." It was apparently the result of a single core error, the kind that could affect any law firm no matter how well run; there is no indication of any similar error elsewhere in the litigation; and the defense has not shown a pattern of similar faults or omissions.
Neither the State Defendants nor the District Court questioned the attorney's story that a clerical error led to the CONFIDENTIAL MULLIN materials being misplaced and misfiled. The record prior to March 2014 betrays no indication that Mullin or her attorney was aware of the Report or the related materials; as late as November 2013, Mullin's attorney referred to the April 2013 disclosure as having produced nothing new or revelatory.
For the above reasons, we disagree with the Magistrate Judge that the delay attributable to the April 2013 discovery was "inescapabl[y]" undue.
As set forth above, prejudice to the non-moving party has long been the "touchstone" for the denial of leave to amend.
The Magistrate Judge largely agreed with this line of argument. In a short discussion on prejudice, the Judge found that "[t]he current defendants, as well as those who have already been dismissed, have spent significant resources on this litigation, and they would essentially be forced back to square one." With regard to the proposed defendants, there was "nothing beyond speculation to support the notion that ... there would not be prejudice to them in defending on the merits."
At the outset, the arguments against amendment advanced here and by the State Defendants on appeal do not connect prejudice to the additional delay caused by the mistake of Mullin's attorney. Rather, these claims of prejudice would have applied with near-equal force had Mullin timely moved to amend immediately upon obtaining the April 2013 disclosures. Accordingly, we view the "delay" complained of here as referring to the pendency of the litigation as a whole and not to the delay in seeking to amend once the CONFIDENTIAL MULLIN documents were disclosed.
Thus framed, we again disagree with the Magistrate Judge's analysis. Mullin appears to be largely without fault for the years that passed before she obtained the CONFIDENTIAL MULLIN documents which radically altered her understanding of the night Robert took his own life. The State Defendants have not argued that she could have obtained the Report earlier, or that there was a hint of the proposed new defendants — and especially Officer X — in any of the discovery documents prior. While the State Defendants are within their rights to comply only with those discovery obligations actually due under law, they cannot persuasively rely on resulting delay as a source of prejudice.
It was also not improper for Mullin to replead dismissed defendants and claims in her proposed amended complaint. At the time she filed her proposed TAC, Mullin may not have decided whether she intended to pursue the already dismissed claims and parties on appeal, and including them in the proposed TAC preserved that right. Because an amended complaint supersedes the original, "parties voluntarily dropped from an amended complaint do not remain in the case."
It is thus not correct to say that granting leave to amend would put the defendants back at square one or perpetuate an infinite cycle. The Magistrate Judge would have been entitled to rely on the District Court's earlier dismissal opinion in determining whether previously dismissed defendants should remain in the case, and could have set further conditions on amendment, discovery, and so on. The "cycle" of motions practice interrupted by amendment requests based on new evidence remains a risk only for as long as discovery remains open.
In sum, while the defendants have undoubtedly expended resources over the course of the litigation, and would have to expend additional effort were amendment allowed, their case for prejudice is thin. A defendant that possesses an explosive document unknown to the plaintiff may use the legitimate litigation strategies at hand to delay disclosure of that document until absolutely necessary, but that delay cannot thereafter form that defendant's argument for prejudice if it leads to a belated request to amend. Because the State Defendants did not persuasively articulate a theory of prejudice, and because the Magistrate Judge's discussion relied on factors that appear to have been allowable litigation choices on Mullin's behalf, we will vacate for reconsideration of this factor.
3. Judicial Economy
Judicial economy is an equitable consideration that can be considered in deciding whether amendment should be allowed. It is uncommonly a factor that stands entirely alone, separate and apart from prejudice and factors relevant to whether a delay was "undue."
The Magistrate Judge appeared to consider judicial economy by discussing the work already done by the Court: the "almost four years" that had passed since its filing, at least "eight conferences" that had been held with the parties, and the extensive motions practice that included "at least four motions to dismiss."
While the litigation had doubtlessly been frustrating, and Mullin's apparent minimization of the many stumbles throughout is discouraging, the Magistrate Judge's focus on the past inappropriately constrains the scope of the judicial economy inquiry. The difficulty in managing the litigation thus far is certainly salient, but simply tallying up the number of motions, conferences (of any type), and opinions sheds little light on whether future management of the case would encounter similar difficulties. The length of the District Court's opinion on dismissal, and the effort behind it, are also of uncertain weight, especially in light of this Circuit's default presumption in favor of amendment in civil rights cases.
As cast in this case, "judicial economy" sounds almost like a sanction for prior perceived errors. As presented, it does not currently support the Magistrate Judge's decision to deny leave to amend.
4. Relation Back and Timeliness
The Magistrate Judge summarily addressed, and the parties have briefed before us, the doctrine of "Relation Back." This refers to the operation of Rule 15(c), which allows certain new claims and new parties added in an amended complaint to "relate back" to the date of filing of the original complaint for statute of limitations purposes if certain conditions are met.
On this record, we conclude that determining whether the complaint "relates back" is unnecessary, at least with regard to Mullin's 42 U.S.C. § 1983 vulnerability-to-suicide constitutional claims brought against Officer X. The allegations against Officer X would be timely on their face.
The accrual date of a § 1983 claim is determined under federal law.
Here, the actual nature of the claim against Officer X was unknown to Mullin until the receipt, by counsel, of the April 2013 disclosures. Mullin's claim against the prior State Defendants, premised on their alleged failure to be put on notice of Robert's intake answers and transfer materials, stemmed from a different asserted injury. Officer X, by contrast, is alleged to have specifically known of Robert's need for mental-health intervention and to have disregarded it. Mullin would not have been put on notice of the elements comprising this separate injury by the pre-April 2013 disclosures, and the fact of Robert's death itself did not otherwise cause the limitations period to start running. As discussed above, Mullin's investigative diligence has not been called into question. Thus, either innately or through the application of the discovery rule,
For the above reasons, we conclude that the Magistrate Judge's exercise of discretion was not within the boundaries contemplated by Rule 15 or the Foman factors, in light of the liberal pleading regime established by the Federal Rules. We remand for the Magistrate Judge or District Court to reassess the propriety of amendment under the proper framework. The Court may also wish to weigh whether the claims advanced by Mullin on the basis of the new discovery are meritorious in deciding whether amendment is warranted.
For the foregoing reasons, we will affirm in part, vacate in part, and remand.