IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KARL LOOSE, ET AL.,

Plaintiffs,

v.

NORTH WILDWOOD CITY & JOHN

DOES fictitious names of

Defendants A thru Z,

Defendants.

Civil Action 

No. 10-6587 (JBS/KMW)

MEMORANDUM OPINION

SIMANDLE, Chief Judge:

This matter is before the Court on Plaintiff Loose’s motion

to voluntarily withdraw his claims without prejudice, [Docket

Item 22], and the remaining Plaintiffs’ motion to amend the

Complaint [Docket Item 23]. Defendant North Wildwood City

opposes both motions. THE COURT FINDS AS FOLLOWS:

 1. Plaintiffs are three disabled individuals who use

wheelchairs and bring this action against Defendant North

Wildwood City and John Doe defendants for violation of

Plaintiffs’ rights under Title II of the Americans with

Disabilities Act, 42 U.S.C. § 12132, the Rehabilitation Act of

1973, 29 U.S.C. §§ 791-794, and the New Jersey Law Against

Discrimination, N.J. Stat. Ann. § 10:5-1. They allege that

certain sidewalks and curb cuts in North Wildwood City violate

these laws. Compl. ¶¶ 7-9.

 2. Plaintiff Loose seeks to dismiss without prejudice his

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claims against Defendants. [Docket Item 22]. Rule 41(a)(2) of

the Federal Rules of Civil Procedure provides that a plaintiff

may voluntarily dismiss an action without prejudice after the

opposing party serves an answer “by court order, on terms that

the court considers proper.” This determination is discretionary

based on “the presence or extent of any prejudice to the

defendant.” See Ferguson v. Eakle, 492 F.2d 26, 29 (3d Cir.

1974); see also Sinclair v. Soniform, Inc., 935 F.2d 599, 603 (3d

Cir. 1991) (explaining nature of inquiry). 

 3. Defendant does not advance a persuasive argument as to

how it will be prejudiced by dismissal without prejudice. 

Defendant represents that it plans to seek dismissal of this

action for lack of standing based on evidence obtained during

discovery, and Defendant fears that Loose will be able to

“manufactur[e] standing” if his claims are permitted to be

withdrawn without prejudice. Def.’s Br. 7. It is not entirely

clear to the Court what it means for Loose to manufacture

standing, since Loose either was or was not injured by the

violations alleged in the present Complaint. But if Loose is

subsequently able to sue on someone else’s behalf for prior

injuries, or is able to sue on his own behalf based on future

injuries, that can hardly be said to prejudice Defendant as the

term is used in this context; dismissing the present action for

lack of standing has no effect on Loose’s ability to do both of

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those things.

 4. Defendant also contends that Plaintiffs’ counsel’s past

conduct “strongly suggests that Mr. Loose or another client of

Mr. Brady will file suit again or, alternately, demand payment of

money to forego the filing of the lawsuit,” and therefore

Defendant will be prejudiced. But the prospect of subsequent

suit is inherent to every action dismissed without prejudice; on

its own, it cannot logically form the basis of an argument that

Defendant is harmed by the dismissal sufficient to deny it. See

In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829, 863 (3d Cir.

1990)(noting that fear of a successive suit is not sufficient to

show prejudice); John Evans Sons, Inc. v. Majik-Ironers, Inc.,

95 F.R.D. 186, 190 (E.D. Pa. 1982) (same).1

 5. Since there is no prejudice to Defendant by permitting

Plaintiff Loose to withdraw his claims without prejudice, the

Court will so order. 

 6. The remaining Plaintiffs seek leave to amend the

Complaint to add new allegations of related misconduct (new

construction that similarly fails to comply with accessibility

requirements), to withdraw their claim under the Law Against

Discrimination, and to change the damages claim to a claim for

 Defendant also contends that Plaintiff has not offered 1

sufficient evidence of the illness that Loose contends requires

his withdrawal. Plaintiff’s reasons for seeking withdrawal are

irrelevant to prejudice. 

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nominal damages of $1. To the extent the withdrawn claim is

subject to Rule 41(a)(2), the Court will again examine whether

its withdrawal would prejudice Defendant. The other changes are

amendments pursuant to Rule 15(a)(2), and the Court will freely

grant such leave unless it finds that Defendant will experience

“substantial or undue prejudice . . . truly undue or unexplained

delay,” or upon a showing of “repeated failures to cure the

deficiency by amendments previously allowed, or futility of

amendment.” Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir.

1993).

 7. As to the new allegations, Defendant does not contend

that the allegations are not properly related to the Complaint

under Rules 15 or 18 of the Federal Rules of Civil Procedure, or

that this is somehow an effort to evade a statute of limitations. 

Instead, Defendant simply contends that it would be prejudiced

because while Plaintiffs may have standing to raise the proposed

additional claims, they lack standing for the existing claims. 

The allegedly defective nature of the existing claims is

irrelevant to demonstrating prejudice resulting from the addition

of claims. Rule 15 explicitly states as much: “The court may

permit supplementation even though the original pleading is

defective in stating a claim or defense.” Rule 15(d). This

amendment will therefore be permitted.

 8. It is not clear whether Plaintiffs seek leave to dismiss

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the Law Against Discrimination claim without prejudice, since

they seem to acknowledge that the claim is meritless. The

default action is to permit the claims to be withdrawn without

prejudice, Fed. R. Civ. P. 41(a), and Defendant makes no

argument as to how it would be prejudiced by dismissal without

prejudice of the Law Against Discrimination claim. Plaintiffs

will therefore be permitted to withdraw this Law Against

Discrimination claim without prejudice.

 9. Finally, as to nominal damages, in support of the

proposition that amendment would be futile in the absence of

allegations of intentional discrimination, Defendant cites to a

single non-controlling opinion that does not directly address

nominal damages. See Ferguson v. City of Phoenix, 157 F.3d 668

(9th Cir. 1998) (discussing compensatory damages under Title II

action). While the Court is aware that several circuit courts

have held that discrimination must be intentional in order to

recover monetary damages under Title II of the ADA, the Third

Circuit has not decided the matter. Whether or not nominal

damages are available to a Title II claimant who cannot prove

intentional discrimination, Defendant’s citation of a single noncontrolling case is not a sufficient showing that the claim is so

clearly futile as to warrant denial of Plaintiffs’ opportunity to

attempt to prosecute it. This amendment will therefore be

permitted. 

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 10. In sum, Plaintiff Loose will be permitted to withdraw

his claims without prejudice, and the remaining Plaintiffs will

be permitted to amend the Complaint to withdraw their Law Against

Discrimination claim without prejudice, to reduce the monetary

relief they seek to $1 of nominal damages, and to add

supplemental allegations regarding related conduct. The

accompanying Order will be entered.

 February 14, 2012 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge

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