NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOSEPH A. DICKSON, U.S.M.J.

This matter comes before the Court upon (1) Plaintiffs’ motion for leave to file a third 

amended pleading to add Mr. Daniel McClain, the President and owner of Defendant McClain & 

Company, as a defendant in his individual capacity and to assert a new cause of action under the 

New Jersey Prevailing Wage Act against all defendants, (ECF No. 52); and (2) Defendants 

McClain & Company, Matthew Pasquale and Alan Ladd’s motion to amend their responsive 

pleading to allege new counterclaims against Plaintiff Frank Bruno, and for sanctions related to 

MICHAEL SANTA LUCIA,

 Plaintiff, 

v.

MCCLAIN & COMPANY, INC., ALAN 

LADD, MATTHEW PASQUALE, 

JOHN DOES 1-10 and XYZ CORP. 1-

10,

 Defendants.

Civil Action No. 11-930 (CCC) (JAD)

OPINION

FRANK BRUNO, IVAN CASIANO, 

DANNY BRATTOLI, JOSEPH 

TRITTO, GABRIEL SCIANNA,

Plaintiffs,

v.

MCCLAIN & COMPANY, INC., ALAN 

LADD, MARK CARUCCI, JOHN 

DOES 1-10 and XYZ CORP. 1-10,

 Defendants.
2

Plaintiff Bruno’s alleged spoliation. (ECF No. 51). Pursuant to Rule 78 of the Federal Rules of 

Civil Procedure, no oral argument was heard. Upon consideration of the parties’ submissions, 

and for the reasons stated below, Plaintiffs’ motion for leave to amend is GRANTED IN PART 

AND DENIED IN PART. Defendants McClain & Company, Matthew Pasquale and Alan 

Ladd’s motion is likewise GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND AND PROCEDURAL HISTORY

In these consolidated matters, Plaintiffs allege that Defendants “failed to properly 

compensate Plaintiffs for the work they performed as employees of McClain & Co. in violation 

of company policy and state and federal law”, (Pl. Br., ECF No. 52-2 at 2), and that Defendants 

also unlawfully terminated Plaintiffs’ employment. (Id. at 3). Currently before the Court are: 

(1) Plaintiffs’ motion for leave to file a third amended pleading to add Mr. Daniel McClain (“Mr. 

McClain”), the President and owner of McClain & Company, as a defendant in his individual 

capacity and to assert a cause of action under the New Jersey Prevailing Wage Act, (ECF No. 

52); and (2) Defendants McClain & Company, Matthew Pasquale and Alan Ladd’s motion to 

amend their responsive pleading to allege new spoliation-related counterclaims against Plaintiff 

Frank Bruno. (ECF No. 51). Those Defendants also seek sanctions regarding Plaintiff Bruno’s 

alleged spoliation. (Id.). 

To put the parties’ motions in the proper context, it is necessary to summarize the more 

than thirty-one months of procedural history in these cases. Plaintiff Michael Santa Lucia 

commenced an action against Defendants McClain & Company, Matthew Pasquale and Alan 

Ladd (the “Santa Lucia Defendants”) in the New Jersey Superior Court on January 11, 2011. 

(Pl. Br., ECF 52-2, at 3) (the “Santa Lucia Matter”). On the same date, Plaintiffs Frank Bruno, 

Ivan Casiano, Danny Brattoli and Joseph Tritto filed a separate case (the “Bruno Matter”) in the 
3

New Jersey Superior Court against Defendants McClain & Company, Marc Carucci and Alan 

Ladd (the “Bruno Defendants”) (Id.). On February 18, 2011, both the Santa Lucia Defendants 

and the Bruno Defendants removed their respective cases to the United States District Court for 

the District of New Jersey. (Id.).1 

The Santa Lucia Defendants filed an answer on March 10, 2011. (ECF No. 3). In the 

Bruno Matter, Defendants Ladd and McClain & Company filed their responsive pleading on 

March 10, 2011, (11-cv-931, ECF No. 3), and Defendant Marc Carucci filed an answer as well 

as a crossclaim against McClain & Company on April 5, 2011. (11-cv-931, ECF No. 6). 

On April 1, 2011, the Santa Lucia Defendants filed a motion to consolidate the matters, 

which the plaintiff in that case opposed. (ECF Nos. 5 and 16). That motion was temporarily held 

in abeyance to allow the parties to focus their attentions on an upcoming settlement conference, 

but was reinstated in August 2011. On September 29, 2011, while the motion to consolidate was

still pending, the plaintiffs in the Bruno Matter filed a First Amended Complaint adding a new 

plaintiff (Gabriel Scianna) without either the consent of their adversaries or the Court’s leave, in 

violation of Federal Rule of Civil Procedure 15. (11-cv-931, ECF No. 13). On the same date,

counsel for Defendants McClain & Company, Ladd and Pasquale informally requested leave to 

amend their pleadings to assert counterclaims against the plaintiffs in both cases. 

By Letter Order dated October 12, 2011, this Court: (1) retroactively granted the Bruno 

Plaintiffs leave to file their Amended Complaint (despite those plaintiffs’ violation of Rule 15); 

 1 All plaintiffs in both the Santa Lucia and Bruno Matters are represented by the same counsel –

the Law Offices of John J. Zidziunas LLC and Hyderally & Associates, PC. Likewise, with the 

exception of Defendant Marc Carucci, all defendants in both matters are represented by Bauch 

Zucker Hatfield LLC. Mr. Carucci is represented by Ogletree, Deakins, Nash, Smoak & Stewart, 

P.C. 
4

(2) granted the defendants in both matters leave to amend their pleadings to assert certain 

counterclaims; and (3) consolidated the Santa Lucia and Bruno Matters. (ECF No. 23).2

On October 13, 2011, Defendants McClain & Company and Alan Ladd filed an answer to 

the Amended Complaint in the Bruno Matter, including a counterclaim against all plaintiffs. 

(11-cv-931, ECF No. 17).3 On October 18, 2011, Defendants McClain & Company, Alan Ladd 

and Matthew Pasquale file an Amended Answer in the Santa Lucia matter, and included a 

counterclaim against the plaintiff in that case. (ECF No. 24). Plaintiff Michael Santa Lucia filed 

a response to that counterclaim on October 26, 2011. (ECF No. 25). 

By letter dated November 11, 2011, all plaintiffs in both matters jointly sought leave to 

file a Second Amended Complaint to add a new named plaintiff, Dwayne Webster, and related 

allegations. (ECF No. 29). The Court granted leave and Plaintiffs filed their second amended 

pleading on December 13, 2011. (ECF No. 32). All Defendants thereafter filed responsive 

pleadings and reasserted their various crossclaims and counterclaims. (ECF Nos. 34, 35). On 

November 29, 2011, the Court entered a Scheduling Order requiring, in pertinent part, that the 

parties file any motion to add new parties or otherwise amend by March 15, 2012. (ECF No. 31 

at 2-3). 

Discovery was temporarily stayed while the parties attempted to resolve their disputes 

through mediation. (ECF Nos. 36, 38). Thereafter facing a discovery end date of October 15, 

2012, the parties jointly requested that the fact discovery period be extended through January 15, 

2013, with expert discovery to occur thereafter, and represented that “this time table will allow 

 2 The Santa Lucia matter, No. 11-cv-930 (CCC) (JAD), has been designated as the lead case.

3 It appears that the plaintiffs did not file a response to the Bruno Defendants’ counterclaims until 

December 13, 2011. (ECF No. 33). 
5

the parties to complete all necessary discovery required in these cases.” (ECF No. 39). The 

Court adopted the parties’ revised discovery schedule. (ECF No. 41). 

During a telephone status conference held on December 11, 2012, counsel for Defendants 

McClain & Company, Matthew Pasquale and Alan Ladd (collectively, the “McClain

Defendants”) notified the Court of a potential spoliation issue, as Plaintiff Bruno allegedly 

testified at deposition that he relied on a certain “logbook” (containing dates that he worked 

during his employment with McClain) when preparing his pleading, and that he was no longer in 

possession of that document. By letter dated January 4, 2013, (ECF No. 46), the McClain 

Defendants memorialized that issue and informally requested leave to amend their pleading to 

assert counterclaims for negligent destruction of evidence and fraudulent concealment of 

evidence. By letter dated January 10, 2013, (ECF No. 47), Plaintiffs objected to the McClain 

Defendants’ request and, among other things, requested leave to file a Third Amended 

Complaint naming Mr. McClain, as a defendant in his individual capacity and adding a new 

cause of action under the New Jersey Prevailing Wage Act against all defendants. On January 

11, 2013, this Court ordered that the parties file formal motions to amend their respective 

pleadings.

On January 31, 2013, Plaintiffs and the McClain Defendants filed motions seeking to 

amend their pleadings to add the claims described above. (ECF Nos. 51 and 52). Those 

applications were fully briefed and, at this Court’s direction, (ECF No. 64), the parties filed 

supplemental letters addressing (1) the impact that the parties’ proposed amendments would have 

on the fact discovery schedule; and (2) whether adding Daniel McClain as an individual 

defendant would have any impact on the calculation of Plaintiffs’ alleged damages. (ECF Nos. 

65-66). 
6

II. THE PARTIES’ ARGUMENTS

a. Plaintiffs’ Motion for Leave to File a Third Amended Complaint

As noted, Plaintiffs seek leave to amend their pleading to (1) name McClain &

Company’s President and owner, Daniel McClain, as a defendant in his individual capacity; and 

(2) add claims under the New Jersey Prevailing Wage Act against all defendants. (Pl. Br., ECF 

No. 52-2, at 5). Plaintiffs repeatedly state that “[t]he sole and mere purpose of [their requested] 

amendment is to correct the pleadings to accurately reflect all Defendants and all claims.” (Id.). 

Plaintiffs note the liberal standard afforded requests for amendment, claim that they are not 

alleging any “new unrelated facts”, (id.), and that Defendants will not be prejudiced by the 

proposed amendment, as they can conduct additional discovery regarding the new party and 

cause of action. (Id.). Plaintiffs also contend that they will suffer “severe prejudice” should the 

Court deny their request, as discovery has revealed “ample facts” supporting their proposed 

amendment. (Id.). 

With regard to their application to add Mr. McClain as an individual defendant, Plaintiffs 

contend that recent deposition testimony (including that of Mr. McClain himself), has revealed 

that Mr. McClain personally and actively participated in the creation and maintenance of the 

alleged wage violations at issue. (Id. at 6-7). Plaintiffs further claim that, based on those alleged 

actions, Mr. McClain may be considered to be Plaintiffs’ “employer” under the various statutes 

at issue in this case. (Id. at 7).

Plaintiffs argue that they seek to add a cause of action under the Prevailing Wage Act “in 

light of Defendants’ blatant admissions of their failure to pay Plaintiffs their full amount of 

prevailing wages.” (Id.). 

In their opposition to Plaintiffs’ motion, (ECF No. 58), the McClain Defendants raise 

three primary arguments. First, the McClain Defendants contend that Plaintiffs lack “good 
7

cause” for their application, as Plaintiffs had all of the factual information underlying their 

proposed amendments at the time they filed their original complaints in January 2011,4 and 

cannot demonstrate, therefore, any justification for their failure to seek leave to make those 

amendments prior to the Court’s March 15, 2012 deadline. (Id. at 9-13). Second, Defendants’ 

argue that it would be futile to allow Plaintiffs to add a cause of action under the New Jersey 

Prevailing Wage Act, as that statute, which requires that wages be paid at the “prevailing rate” 

for “public work”, applies only with regard to “construction, reconstruction, demolition, 

alteration or repair work, or maintenance work”, (id. at 13), and does not apply to lane closure 

work performed in connection to the bridge and sign inspections at issue in this case. (Id. at 13-

15).5 Third, the McClain Defendants claim that they would suffer “extreme prejudice” should 

Mr. McClain be named as an additional defendant, as it would deny Mr. McClain the opportunity 

to “retain separate counsel to represent his individual interests”, (id. at 16), and may require that 

the McClain Defendants be permitted to depose Mr. McClain (who was previously deposed 

“only as a witness and not as a Defendant with potential personal liability”) and others regarding 

the extent of Mr. McClain’s day-to-day involvement with McClain & Company’s New Jersey 

office. (Id. at 16-17). 

In their reply submission, Plaintiffs first contend that Mr. McClain may be considered an 

“employer”, and may therefore be subject to individual liability under the relevant statutes. 

(ECF No. 61 at 1-3). That argument is irrelevant to this motion, however, as the McClain 

Defendants never challenged the facial, legal sufficiency of Plaintiffs’ proposed claims against 

 4 The McClain Defendants also argue that Plaintiffs had information regarding Daniel McClain’s 

alleged personal involvement in the wage policies at issue, at the latest, following Defendant 

Carucci’s deposition in April 2012. (Id. at 8, 12-13). 

5 The McClain Defendants do not make a “futility” argument with regard to Plaintiffs’ request to 

name Daniel McClain as an individual defendant. 
8

Mr. McClain. Rather, as noted above, they simply argue that, due to an inordinate delay,

Plaintiffs cannot establish good cause to add claims against Mr. McClain at this juncture. 

Plaintiffs next contend that Defendants’ arguments regarding Mr. McClain’s need for separate 

counsel are without basis, (id. at 3-4), and that the proposed amendments are necessary in light 

of New Jersey’s entire controversy doctrine. (Id. at 4-5). Finally, Plaintiffs argue that the 

inspection-related lane closure services at issue in this case may count as “maintenance work”

under the Prevailing Wage Act and therefore fall within the ambit of that statute. (Id. at 5-6). 

In their supplemental submission dated April 24, 2013, the McClain Defendants argued 

that because, until now, Plaintiffs had only made “prevailing wage” claims in connection with 

New York work, permitting Plaintiffs to amend their pleading to include a cause of action under 

the New Jersey Prevailing Wage Act would require the McClain Defendants to “re-review more 

than 6000 pages of discovery already produced . . . [and] go back and reach out to all of their 

New Jersey contractors to obtain documentation demonstrating that prevailing wages were not 

required to be paid on any New Jersey jobs.” (ECF No. 66 at 3). Plaintiffs disagree, arguing that 

“Defendants had ample opportunities to explore issues relating to the NJPWA with regard to 

Plaintiff Santalucia [sic], thereby exhausting discovery.” (Id. at 5). Plaintiffs also argue that 

“[n]o additional facts or documents would be needed to show liability under the NJPWA, but 

instead the issue of liability will turn on the interpretation of the language of the statute.” (Id. at 

6). Plaintiffs also contend, for the first time, that they are only seeking to add a Prevailing Wage 

Act claim on behalf of Plaintiff Santa Lucia. (ECF No. 65 at 5). That contention is belied by the 

text of their proposed Third Amended Complaint, which plainly asserts that cause of action on 

behalf of all Plaintiffs. (ECF No. 63 at 34). The parties disagree on whether Plaintiffs’ damage 
9

calculations would change if Plaintiffs are permitted to add Mr. McClain as a defendant. 

(Compare ECF No. 65 at 2 with ECF No. 66 at 3-4). 

b. The McClain Defendants’ Motion for Leave to Amend and for Spoliation 

Sanctions Against Plaintiff Bruno

The McClain Defendants contend that Plaintiff Bruno’s destruction or failure to preserve 

the logbook constitutes spoliation, (Def. Br. ECF No. 51-1 at 7-11), and that the Court should 

impose sanctions barring that plaintiff from seeking any damages associated with his wage and 

hour claims. (Id. at 14) (“Only by preventing Plaintiff Bruno from recovering any damages will 

Defendant McClain’s prejudice by relieved.”) In the alternative, the McClain Defendants 

request that the Court “impose an adverse inference instruction and monetary sanctions on 

Plaintiff Bruno and his attorneys.” (Id.). The McClain Defendants also seek the Court’s leave to 

amend their responsive pleading to include new counterclaims related to Plaintiff Bruno’s 

alleged spoliation. Specifically, the McClain Defendants wish to add new causes of action for 

negligent destruction of evidence and fraudulent concealment of evidence. (Id. at 19; Proposed 

Am. Answer, ECF No. 51 at 45-46). They further contend that the Court may both impose 

spoliation sanctions against Plaintiff Bruno and permit the McClain Defendants to pursue 

affirmative counterclaims against him. (Def. Br., ECF No. 51-1 at 20-21, 24-25).

In their opposition, Plaintiffs assert that the McClain Defendants’ spoliation claim fails, 

as those defendants cannot establish that Plaintiff Bruno withheld or destroyed the logbook either 

intentionally or in an act of bad faith, as is required under Third Circuit law. (Pl. Br., ECF No. 

57 at 6-7). Rather, Plaintiffs contend, the evidence of record indicates that Plaintiff Bruno 

inadvertently misplaced or disposed of that document. (Id. at 7-8). Plaintiffs further argue that, 

even if the Court were to find that Mr. Bruno spoliated evidence, the McClain Defendants have 

not established an entitlement to sanctions, as there is no evidence that Mr. Bruno acted 
10

intentionally or in bad faith or that the McClain Defendants (who may obtain the information 

contained in the logbook from other sources, including their own payroll records) will suffer any 

prejudice as a result. (Id. at 8-12). Plaintiffs also claim that it would be futile to allow the 

McClain Defendants to amend their pleading, as courts do not recognize an independent tort for 

negligent destruction of evidence, (id. at 13), and because the facts at issue in this matter will 

make it impossible for the McClain Defendants to prevail on a claim for fraudulent concealment 

of evidence. (Id. at 13-16).

In their reply submission, the McClain Defendants contend that spoliation occurs even if 

a party is simply negligent in failing to preserve potentially discoverable evidence, (Def. Rep. 

Br., ECF No. 60 at 4-5) and, in any case, the facts suggest that Plaintiff Bruno acted in bad faith 

with regard to the logbook. (Id. at 5). They go as far as to allege that “the facts before the Court 

show an intentional and willful act on the part of Plaintiff Bruno and his attorneys.” (Id. at 8). 

With regard to the severity of their requested sanction (i.e., prohibiting Mr. Bruno from seeking 

economic damages), the McClain Defendants represent to the Court that “[t]his is the only 

sanction that levels the playing field visited upon the McClain Defendants as a result of the 

destruction of the log book.” (Id. at 6). The McClain Defendants also argue, for the first time, 

that the loss of the logbook will prejudice their ability to prove their counterclaims against 

Plaintiff Bruno. (Id. at 7). They further contend that they have, in fact, alleged sufficient factual 

support for their fraudulent concealment claim. (Id. at 9-12). Finally, in response to Plaintiffs’ 

argument regarding the unavailability of a cause of action for negligent destruction of evidence, 

the McClain Defendants urge the Court to instead consider that claim as one for simple 

negligence. (Id. at 12). 
11

III. THE APPLICABLE LEGAL STANDARDS

Federal Rule of Civil Procedure 15 typically governs motions to amend or supplement 

proceedings. Where a party fails to seek amendment prior to the applicable deadline set out in 

the Court’s pretrial scheduling order, however, that party’s application must satisfy the 

requirements of both Rule 15(a) and Rule 16(b)(4).

a. The “Good Cause” Requirement Under Rule 16(b)(4)

Where a scheduling order sets a deadline for the amendment of pleadings and a party 

seeks amendment after the deadline has passed, that party must meet Rule 16’s “good cause” 

standard in order to amend. Stallings ex rel. Estate of Stallings v. IBM Corp CIV. No. 08-3121 

(RBK) (JS), 2009 U.S. Dist. LEXIS 81963, *44-46 (D.N.J. Sept. 8, 2009) (citations omitted). 

This is because motions to amend that are filed after a scheduling order deadline has passed are 

treated as motions to amend the pretrial scheduling order, see id. at *46 (citing Assadourian v. 

Harb, 71 Fed. R. Serv. 3d 693 (D.N.J. 2008) aff’d, 430 F. App’x 79 (3d Cir. 2011)); (see also

Dimensional Commc’ns., Inc. v. OZ Optics, Ltd., 148 F. App’x 82, 85 (3d Cir. 2005) (finding 

that plaintiff must satisfy Rule 16’s “good cause” requirement if seeking to amend the complaint 

after the deadline for amending pleadings has passed)), and, under Rule 16(b)(4), a scheduling 

order may only be modified for good cause. In these situations, the Court must conduct a 

threshold “good cause” inquiry under Rule 16 because scheduling orders would otherwise “be 

nullified if a party could inject amended pleadings upon a showing of less than good cause after 

scheduling deadlines have expired.” Harrison Beverage Co. v. Dribeck Importers, Inc., 133 

F.R.D. 463, 469 (D.N.J. 1990); Washington v. Hovensa LLC, 652 F.3d 340 (3d Cir. 2011) 

(noting that a Magistrate Judge acted within his discretion when denying request to extend expert 

deadlines where the plaintiff failed to establish good cause to modify the deadlines set out in the 
12

operative pretrial scheduling order). Only after the party seeking a late amendment has 

established “good cause” for the application will the Court evaluate the proposed amendment 

under Rule 15(a).

The most common basis for finding a lack of good cause is the party’s knowledge of the 

potential claim before the deadline to amend has passed. Stallings, 2009 U.S. Dist. LEXIS 

81963, at *47 (citing Dimensional Commc’ns., Inc., 148 F. App’x at 85 (defendant “could not 

satisfy Rule 16(b)’s good cause requirement because [it] was in possession of the facts 

underlying the proposed counterclaim well before the amendment deadline.”)); Prime Ins. 

Syndicate v. United Risk Mgmt. Srvcs., No. 03-1050 (SRC), 2006 U.S. Dist. LEXIS 50670, *13

(D.N.J. July 25 2006) (“Plaintiff provided no reason for why it could not have asserted these new 

claims against [the defendant] within the requisite deadlines.”); Harrison Beverage Co., 133 

F.R.D. at 469 (“This is most definitely not a motion in which any of defendant’s six proposed 

new affirmative defenses arose from recent discovery in the case.”). 

b. Standard For Amendments Under Rule 15(a)

Federal Rule of Civil Procedure 15(a) governs requests for leave to amend and provides 

that after a responsive pleading has been filed:

[A] party may amend its pleading only with the opposing party’s 

written consent or the courts leave. The court should freely give 

leave when justice so requires.

Fed. R. Civ. P. 15(a)(2). 

The decision to grant or deny leave to amend under Rule 15(a) is “committed to the 

sound discretion of the district court.” Arab African Int’l Bank v. Epstein, 10 F.3d 168, 174 (3d 

Cir. 1993). The Third Circuit adopted a liberal approach to the amendment of pleadings under 

Rule 15 to ensure that “a particular claim will be decided on the merits rather than on 
13

technicalities.” Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990) (internal citation 

omitted). The burden is generally on the party opposing the amendment to demonstrate why the 

amendment should not be permitted. Foman v. Davis, 371 U.S. 178 (1962). 

Leave to amend a pleading may be denied where the court finds: (1) undue delay; (2) 

unfair prejudice to the non-moving party; (3) bad faith or dilatory motive; or (4) futility of 

amendment. Shane v. Fauver, 213 F.3d 113, 115 (3d. Cir. 2000). Unfair prejudice is the most 

common factor used by courts to deny leave and is typically found when there has been a 

significant, unjustified delay in moving to amend that unfairly disadvantages another party. 

Delay alone, however, will not require a court to deny a motion for leave to amend. See Cureton 

v. Nat’l College Athletic Ass’n, 252 F.3d 267, 273 (3d Cir. 2001) (holding that mere passage of 

time does not require that a motion to amend a complaint be denied on grounds of delay). Only 

where delay becomes “undue”, i.e., placing an unwarranted burden on the court, or “prejudicial”, 

i.e., placing an unfair burden on the opposing party, is denial of a motion to amend appropriate. 

Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984) (“The question of undue delay, as well 

as the question of bad faith, requires that [the Court] focus on the plaintiff[’s] motives for not 

amending [its] complaint to assert [the] claim[s] earlier; the issue of prejudice requires that [the 

Court] focus on the effect on the [defendant].”). Delay may become undue when there has been 

previous opportunity to amend the complaint. See Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d 

Cir. 1993) (finding that a three-year lapse between the filing of the complaint and the proposed 

amendment was “unreasonable” delay when plaintiff had previous opportunities to amend). In 

such cases, the Court must focus on the moving party’s reasons for not amending the pleading 

sooner. USX Corp. v. Barnhart, 395 F.3d 161, 168 (3d Cir. 2004). 
14

A proposed amendment may also be denied based on futility if it “would fail to state a 

claim upon which relief could be granted.” Shane, 213 F.3d at 115. “In assessing ‘futility’ the 

District Court applies the same standard of legal sufficiency as applies under Rule 12(b)(6).” Id. 

To survive dismissal under Rule 12(b)(6), a complaint “must contain sufficient factual matter 

accepted as true to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 

U.S. 662, 668 (2009) (internal citation omitted). Moreover, in determining whether a proposed 

amendment is futile, “the court looks only to the pleadings.” Pharmaceutical Sales & Consulting 

Corp. v. J.W.S. Delavau Co., 106 F. Supp. 2d 761, 765 (D.N.J. 2000); see also Hassoun v. 

Cimmino, 126 F. Supp. 2d 353, 369, n.24 (D.N.J. 2000) (in resolving a motion to amend, the 

court declined to consider affidavits submitted in connection with a proposed amended 

complaint, as those affidavits fell outside of the pleadings). 

c. Standards Governing a Spoliation Claim and Request for Sanctions

A claim for spoliation of evidence requires the Court to conduct a two-part inquiry. First, 

the Court must determine whether the conduct at issue constitutes spoliation. If the Court agrees 

that spoliation has occurred, it must next consider the sanctions available to redress the situation. 

Bull v. United Parcel Service, Inc., 665 F.3d 68, 73, n.5 (3d Cir. 2012). The United States Court 

of Appeals for the Third Circuit has articulated a four-factor test for determining whether a party 

has engaged in spoliation: “Spoliation occurs where: [1] the evidence was in the party's control; 

[2] the evidence is relevant to the claims or defenses in the case; [3] there has been actual 

suppression or withholding of evidence; and, [4] the duty to preserve the evidence was 

reasonably foreseeable to the party.” Id. at 73.

When analyzing a request for spoliation sanctions, a court must consider “‘(1) the degree 

of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered 
15

by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial 

unfairness to the opposing party, and, where the offending party is seriously at fault, will serve to 

deter such conduct by others in the future.’” Id. at 73, n.5 (quoting Schmid v. Milwaukee Elec. 

Tool Corp., 13 F.3d 79, 79 (3d Cir. 1994)). 

IV. ANALYSIS

a. Proposed Amendment Adding Mr. McClain as a Defendant

i. Good Cause Under Rule 16

Plaintiffs seek leave to amend their pleading to add Mr. McClain as a defendant in his 

individual capacity. As they bring this application long after the March 15, 2012 deadline for 

filing motions to amend, Federal Rule of Civil Procedure 16(b)(4) requires Plaintiffs to establish 

good cause for their proposed amendment.

Plaintiffs contend that good cause exists because they first obtained information 

regarding Mr. McClain’s alleged personal involvement with the wage policy at issue in this case 

in October 2012, well after the March 15, 2012 deadline had expired. (Pl. Br., ECF No. 52-2 at 

6-7). While the McClain Defendants argue that Plaintiffs actually had such knowledge before 

filing their initial complaints in January 2011, based on information that Plaintiff Santa Lucia 

disclosed during his deposition, (Def. Br., ECF No. 58, at 12), this Court disagrees. In the 

portion of the deposition transcript the McClain Defendants cite, Plaintiff Santa Lucia recalled a 

telephone conversation between Defendant Carucci and Mr. McClain that Plaintiff Santa Lucia 

“vaguely heard” from “another room.” (ECF No. 58-1, Ex. C, at 112:8-10). Plaintiff Santa 

Lucia testified that Defendant Carucci allegedly brought up the idea of the “four and three” wage 

policy and that Mr. McClain responded “[w]ith questions” regarding the propriety and potential 

financial impact of the policy. (Id. at 114:7-24). The McClain Defendants do not, of course, 
16

suggest that such basic, conceptual discussions might be sufficient to subject Mr. McClain to 

liability.6

As the record before the Court demonstrates that Plaintiffs acquired the factual 

information underlying their proposed claims against Mr. McClain after the deadline for 

amendment set out in the November 29, 2011 Scheduling Order, the Court finds that good cause 

exists to allow Plaintiffs to amend out of time. The Court will now examine Plaintiffs’ proposed 

amendment for undue delay, unfair prejudice, bad faith / dilatory motive and futility under

Federal Rule of Civil Procedure 15(a).

ii. Undue Delay

The McClain Defendants contend that Plaintiffs’ application must be denied because of 

Plaintiffs’ prolonged delay in seeking to add Mr. McClain as a defendant. (Def. Br., ECF No. 58 

at 11-13). First, the McClain Defendants contend, based on Plaintiff Santa Lucia’s deposition 

testimony, that Plaintiffs had the necessary factual basis for such claims before they filed their 

initial complaints. The Court has already considered and rejected that argument in connection 

with the “good cause” analysis above. The McClain Defendants also suggest that Plaintiffs 

obtained all of the factual information necessary to raise claims against Mr. McClain, at the 

latest, during Defendant Carruci’s deposition in April 2012. (Id. at 7-8, 12-13). While the 

McClain Defendants cite portions of Mr. Carruci’s deposition transcript in support of their 

argument, those excerpts, at most, suggest that Mr. McClain proposed the idea of a “four/three” 

wage policy for discussion purposes, but are silent regarding the decision to put the policy into 

action. (See ECF No. 58-1, Ex. A at 121:1-125:4; 242:6-16). 

 6 The McClain Defendants likewise fail to explain why the information that Plaintiff Santa Lucia 

overheard might be attributable to the other six plaintiffs. 
17

From the record submitted to the Court in connection with Plaintiff’s motion, it appears 

that Plaintiffs first obtained information regarding Mr. McClain’s alleged, active role in 

implementing and maintaining the wage policy at issue (as opposed to mere discussions with 

Defendant Carucci regarding the idea of such an arrangement) at Mr. McClain’s deposition on

October 5, 2012. (ECF No. 52-4, Ex. B, at 148:4-14). While Plaintiffs then waited until January 

10, 2013 to request leave to add Mr. McClain as a Defendant, (ECF No. 47), the Court does not 

find that three month delay to be so severe as to require denial of Plaintiffs’ application.

iii. Unfair Prejudice

The McClain Defendants argue that they would suffer “extreme prejudice” if Mr. 

McClain is added as an individual defendant, as “it will deny Mr. McClain the opportunity to 

retain separate counsel to represent his individual interests.” (Def. Br., ECF No. 58, at 16). 

Specifically, the McClain Defendants speculate that, if Mr. McClain had been added as a party 

earlier in this action, it may have “changed some or all of the Defendants’ approach to the 

manner in which this case has been defended.” (Id.). This argument appears to be a mere 

makeweight. Though Mr. McClain submitted a seven-page certification in opposition to 

Plaintiffs’ motion, (ECF No. 58-2), he does not suggest that he actually would contemplate 

retaining separate counsel should he be named as a party. Moreover, the McClain Defendants do 

not elaborate on how their defense might have changed had Mr. McClain been added as a 

defendant earlier in this matter or suggest that there might be a conflict of interest if Mr. McClain 

does not have his own counsel. The McClain Defendants’ vague, speculated harms are 

insufficient to constitute the sort of “unfair prejudice” that would justify denial of Plaintiffs’ 

motion. 
18

The McClain Defendants also assert that adding Mr. McClain as a defendant would 

delay resolution of this matter, as they will have to depose Mr. McClain, all Plaintiffs, and others 

to determine the extent of Mr. McClain’s involvement in the operation of McClain & Company’s 

New Jersey office. (Id. at 17). Plaintiffs, who would bear the burden of proof on any claims 

against Mr. McClain, represent that they “were prudent to collect additional evidence through 

discovery to properly ascertain the strength of Mr. McClain’s individual liability,” that they 

“acquired such evidence through multiple witnesses,” and that their amendment would not result 

in any delay. (ECF No. 61 at 4). Even assuming that the McClain Defendants may need to 

conduct supplemental discovery on the discrete issue of Mr. McClain’s individual liability, the 

Court finds that the McClain Defendants would have had to conduct such discovery regardless of 

when Mr. McClain was added as a party, and the fact that they may have to do so at this juncture 

of the case is not unfairly prejudicial. The Court further finds that any potential prejudice may 

be minimized through careful case management regarding any remaining, necessary discovery.

iv. Bad Faith or Dilatory Motive

Defendants do not contend that Plaintiffs’ application to amend their pleading to add Mr. 

McClain as a defendant is motivated by bad faith or some other improper purpose. The Court 

will not, therefore, consider this factor as a potential basis for denying Plaintiffs’ motion. 

v. Futility

“To establish futility, the party opposing the motion to amend must demonstrate that the 

proposed amendments to the pleadings would not survive a motion to dismiss for failure to state 

a claim or lack of subject-matter jurisdiction.” Avaya, Inc. v. Cisco Sys., No. 10-5881 (FLW), 

2012 U.S. Dist. LEXIS 79219, *6-7 (D.N.J. June 6, 2012) (Wolfson, J.). Defendants do not 

contend that Plaintiffs’ proposed claims against Mr. McClain are legally insufficient or would 
19

otherwise be susceptible to dismissal. The Court will not, therefore, consider this factor as a 

potential basis for denying Plaintiffs’ application to add Mr. McClain as a defendant.

vi. Conclusion

As the Court finds that good cause exists to permit Plaintiffs to amend their pleading to 

add Mr. McClain as a defendant, and that proposed amendment was not unduly delayed and 

would not be unfairly prejudicial to Defendants, and because Defendants do not contend that the 

amendment would be futile, the interests of justice require that the Court grant the portion of 

Plaintiffs’ motion seeking to add claims against Mr. McClain.

b. Proposed Amendment Adding a Cause of Action Under the New Jersey 

Prevailing Wage Act

i. Good Cause Under Rule 16

Plaintiffs also request leave to amend their pleading to assert a new cause of action, on 

behalf of Plaintiff Santa Lucia only, (ECF No. 65 at 5), under the New Jersey Prevailing Wage 

Act. As with their request to add Mr. McClain as a Defendant, Plaintiffs must establish good 

cause to allow this late, proposed amendment. They make no sincere effort to do so. 

Instead, Plaintiffs summarily state, without more, that they seek this amendment “in light 

of Defendants’ blatant admissions of their failure to pay Plaintiffs their full amount of prevailing 

wages.” (Pl. Br., ECF No. 52-2 at 7). Plaintiffs do not elaborate on when those alleged 

admissions occurred, let alone demonstrate that Defendants made any such admissions after the 

March 15, 2012 deadline for amendment. Plaintiffs do not discuss those purported admissions in 

their proposed amendment. Indeed, it seems that all factual allegations concerning Plaintiff 

Santa Lucia have remained identical since that Plaintiff filed his original pleading on January 11, 

2011. (Compare ECF No. 1 at p. 9, ¶ 5; pp. 10-16, ¶¶ 14-89 with ECF No. 63 at p. 5, ¶ 4; pp.7-

12, ¶¶ 21-96). This includes factual allegations that would appear to support Plaintiff Santa 
20

Lucia’s claim under the New Jersey Prevailing Wage Act. (See, e.g., ECF No. 1 at 12, ¶¶ 87, 93) 

(alleging that Defendants failed to properly pay Mr. Santa Lucia for 263 shifts of prevailing 

wage work in 2009 and 2010). Plaintiffs have offered no explanation for their failure to include 

such a claim in Mr. Santa Lucia’s original Complaint, or either of Plaintiffs’ two subsequent 

amended pleadings, let alone why they failed to seek to add this claim prior to the Court’s March 

15, 2012 deadline. Plaintiffs have therefore failed to proffer any reason, let alone good cause, to 

justify this late amendment. 

ii. Undue Delay

For the reasons articulated above with regard to the Court’s “good cause” analysis, the 

Court finds that Plaintiffs have acted with undue delay in seeking to add a cause of action under 

the New Jersey Prevailing Wage Act.

iii. Futility

The New Jersey Prevailing Wage Act, N.J.S.A. 34:11-56.25, et seq., requires contractors 

to pay a certain minimum wage to workmen (a defined term) engaged in public works, and 

provides those workmen with a private right of action to enforce its terms. N.J.S.A. 34:11-56.40. 

The Act defines “public work”, in pertinent part, as: “construction, reconstruction, demolition, 

alteration, custom fabrication, or repair work, or maintenance work, including painting and 

decorating, done under contract and paid for in whole or in part out of the funds of a public body, 

except work performed under a rehabilitation program.” N.J.S.A. 34:11-56.26(5). The Act 

further defines “maintenance work” as “the repair of existing facilities when the size, type or 

extent of such facilities is not thereby changed or increased”, as well as “any work on a 

maintenance-related project that exceeds the scope of work and capabilities of in-house 

maintenance personnel, requires the solicitation of bids, and has an aggregate value exceeding 
21

$50,000.” Only work on projects that fall within the statutory definition of “public work” is 

covered under the Act.

The McClain Defendants argue that the work at issue falls outside the scope of the 

Prevailing Wage Act because “the work Plaintiffs’ performed was not for the purpose of 

‘construction, reconstruction, demolition, alteration or repair work or maintenance work’ . . . 

[r]ather, all work Plaintiffs performed in New Jersey and New York was for bridge and sign 

inspection, only.” (Def. Br., ECF No. 58 at 14). The McClain Defendants base that argument on 

a certification that McClain and Company’s President, Mr. McClain, prepared in opposition to 

Plaintiffs’ motion. (Id.). As the McClain Defendants’ argument depends entirely on information 

outside of the pleadings, it would therefore be inappropriate for the Court to consider it in the 

context of a motion for leave to amend. See Pharmaceutical Sales & Consulting Corp., 106 F. 

Supp. 2d at 765.

Plaintiffs’ Prevailing Wage Act claims fails on an even more fundamental level, however. 

The proposed Third Amended Complaint lacks sufficient factual allegations to establish a 

plausible entitlement to relief under the Act. While Plaintiff Santa Lucia allegedly worked on 

“state and government contracts in New York and New Jersey”, (ECF No. 63 at 7, ¶ 27), 

Plaintiffs do not allege what those contracts involved. Indeed, nowhere in the proposed Third 

Amended Complaint’s seventy-six paragraphs devoted to Plaintiff Santa Lucia, (¶¶ 4, 21-96), is 

there any description of the types of projects that Mr. Santa Lucia was involved in. While 

Plaintiffs baldly allege that Plaintiff Santa Lucia performed “prevailing wage work” in 2009 and 

2010, (id. at ¶¶ 87, 93), Plaintiffs do not allege that Mr. Santa Lucia did any of that work in New 

Jersey, let alone provide the factual detail necessary for the Court to determine if that work 

might, in fact, fall within the ambit of the Prevailing Wage Act. Finally, while Plaintiffs allege 
22

that “[t]he actions of Defendants give rise to a violation of the PWA”, (id. ¶ 373), courts “‘are 

not compelled to accept unsupported conclusions and unwarranted inferences, or a legal 

conclusion couched as a factual allegation.’” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 

2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). As Plaintiffs have 

failed to provide the factual basis for their proposed claim under the Prevailing Wage Act, they 

have failed to “‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 668 

(internal citations omitted). It would, therefore, but futile to allow Plaintiffs to amend their 

pleading to add such a claim.

v. Unfair Prejudice / Bad Faith or Dilatory Motive

As the Court finds that (1) Plaintiffs have failed to establish good cause sufficient to 

justify their late, proposed amendment; (2) acted with undue delay in bringing their application 

to amend and (3) Plaintiffs’ proposed amendment is futile, as it would not survive a motion to 

dismiss brought under Federal Rule of Civil Procedure 12(b)(6), the Court need not examine 

whether the proposed amendment would create unfair prejudice or is driven by any improper 

motive.

vi. Conclusion

As Plaintiff Santa Lucia’s proposed amendment is futile, and because Plaintiffs have not 

provided any explanation for their prolonged delay in seeking amendment, the Court will deny 

the portion of Plaintiffs’ motion seeking to add a cause of action under the New Jersey Prevailing 

Wage Act.
23

c. The McClain Defendants’ Proposed Amended Counterclaims

i. Good Cause Under Rule 16

The McClain Defendants have moved for leave to amend their pleading to add new 

counterclaims against Plaintiff Bruno for negligent destruction of evidence and fraudulent 

concealment of evidence. The McClain Defendants contend that they first learned of the alleged 

spoliation underlying those claims during Mr. Bruno’s October 10, 2012 deposition, long after 

the March 15, 2012 deadline for motions for leave to amend had passed. Plaintiffs do not 

contend that the McClain Defendants could have sought their proposed amendment prior to that 

deadline. The Court therefore finds good cause to consider the McClain Defendants’ proposed 

amendment.

ii. Undue Delay / Unfair Prejudice / Bad Faith or Dilatory Motive

Plaintiffs do not argue and nothing in the record before the Court suggests that (1) the 

McClain Defendants either delayed in seeking leave to amend; (2) Plaintiffs would be unfairly 

prejudiced by the addition of counterclaims at this juncture of the case; or (3) that the McClain 

Defendants’ proposed amendment is motivated by bad faith or some other improper purpose. 

The Court will not, therefore, consider these factors as potential bases for denying the McClain 

Defendants’ motion to amend.

iii. Futility

A. Negligent Destruction of Evidence

Plaintiffs contend that negligent destruction of evidence is not recognized as an 

independent cause of action under New Jersey or federal law. (Pl. Br., ECF No. 57 at 13). The 

McClain Defendants do not dispute this in their reply submission. Instead, the McClain 

Defendants suggest, for the first time, that the Court should “consider this claim as one for 

negligence.” (Def. Rep. Br., ECF No. 60 at 12). It is settled that “[a] moving party may not 
24

raise new issues and present new factual materials in a reply brief that it should have raised in its 

initial brief.” D'Alessandro v. Bugler Tobacco Co., No. 05-5051 (JBS), 2007 U.S. Dist. LEXIS 

2735 (D.N.J. Jan. 12, 2007) (citing Int’l. Raw Materials, Ltd. v. Stauffer Chem. Co., 978 F.2d 

1318, 1327 n.11 (3d Cir. 1992). Moreover, the McClain Defendants proposed, amended 

pleading does not contain this cause of action, as required under Local Civil Rule 7.1(f). The 

Court therefore declines to convert the McClain Defendants’ explicit counterclaim for negligent 

destruction of evidence into one for simple negligence. As the McClain Defendants have not 

challenged Plaintiffs’ contention that the relevant law does not recognize an independent cause 

of action for negligent destruction of evidence, the Court finds that the McClain Defendants’ 

proposed claim would be subject to dismissal and is therefore futile. 

B. Fraudulent Concealment of Evidence

The McClain Defendants also seek to include a counterclaim against Plaintiff Bruno for 

“fraudulent concealment of evidence.” The parties agree that, in order to prevail on a claim for 

fraudulent concealment brought in the spoliation context, a claimant must establish the following 

elements: 

(1) That defendant in the fraudulent concealment action had a legal 

obligation to disclose evidence in connection with an existing or 

pending litigation;

(2) That the evidence was material to the litigation;

(3) That plaintiff could not reasonably have obtained access to the 

evidence from another source;

(4) That defendant intentionally withheld, altered or destroyed the 

evidence with purpose to disrupt the litigation;
25

(5) That plaintiff was damaged in the underlying action by having 

to rely on an evidential record that did not contain the evidence 

defendant concealed.

Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 118 (2008) (quoting Rosenblit v. Zimmerman, 

166 N.J. 391, 401 (2001)). The parties dispute, however, whether the McClain Defendants have 

asserted a valid cause of action for fraudulent concealment.

Plaintiffs first contend that the McClain Defendants’ fraudulent concealment claim fails 

as a matter of law, as that cause of action is categorically unavailable to defendants. (Pl. Br., 

ECF No. 57, at 13 (“Rather, this tort is directed only at protecting prospective claims of 

plaintiffs.”). As the McClain Defendants point out, however, they have also asserted 

counterclaims against Plaintiffs (including Plaintiff Bruno) seeking to recover an alleged 

overpayment of wages. (Def. Br., ECF No. 60 at 9-10). With respect to the dangers of 

spoliation, the Court finds no distinction between a plaintiff (whom Plaintiffs agree may bring a 

claim for fraudulent concealment) and a counterclaimant. Indeed, one of the cases that Plaintiffs 

cite in support of their argument explicitly recognizes that “[t]he protective function of the 

spoliation tort . . . may be applicable where there are counterclaimants.” Hirsch v. Gen. Motors 

Corp., 266 N.J. Super. 222, 245 (L. Div. 1995). The Court does not, therefore, find Plaintiffs’ 

argument to be convincing. 

Plaintiffs also make several fact-intensive arguments suggesting that the McClain 

Defendants will not be able to prove all of the necessary elements of their fraudulent 

concealment claim. (Pl. Br., ECF No. 57 at 14-15). The McClain Defendants are not required, 

however, to prove their case at the pleading stage. It may very well be that the McClain 

Defendants’ claim for fraudulent concealment fails at either the summary judgment phase or at 
26

trial for lack of adequate proofs. That determination is not currently before the Court, nor is it 

appropriate in the context of a motion to amend. At this juncture, the Court must simply 

determine whether the proposed amended “would clearly be futile.” See Cowell v. Palmer Twp., 

264 F.3d 286, 296 (3d Cir. 2001). Plaintiffs further contend that the McClain Defendants have 

“failed to allege even one specific fact in their proposed answer that shows that Plaintiff Bruno 

intentionally withheld his logbook with purpose to disrupt the litigation.” (Pl. Br., ECF No. 57 

at 15) (emphasis in original). The Court disagrees. The McClain Defendants have alleged, 

among other things, that “Plaintiff Bruno knew that the logbook was important evidence when he 

prepared the initial Complaint”, (Proposed Am. Answer, ECF No. 51, pp. 4-48, at ¶ 17), that 

“Plaintiff Bruno knew that by not maintaining and safeguarding the logbook he was depriving . . 

. McClain of highly relevant evidence”, (id. ¶ 18), and that “Plaintiff Bruno and/or his attorneys 

intentionally have withheld or destroyed the logbook in order to disrupt this litigation.” (Id. ¶ 

31). Taking the McClain Defendants’ factual allegations as true, the Court finds that they have 

alleged a plausible entitlement to relief on their fraudulent concealment claim against Plaintiff 

Bruno. Plaintiffs have therefore not established that it would be futile to add a fraudulent 

concealment claim against Plaintiff Bruno to the McClain Defendants’ counterclaims.

iv. Conclusion

As the Court finds good cause to consider the McClain Defendants’ late amendment, that

Plaintiffs have not established that the addition of a fraudulent concealment claim would be futile 

and given the liberal standard for amendment under Federal Rule of Civil Procedure 15, the 

Court will grant the portion of the McClain Defendants’ motion seeking to assert that cause of 

action. The Court will, however, deny as futile the McClain Defendants’ request to add a claim 

for negligent destruction of evidence. 
27

d. The McClain Defendants’ Request for Sanctions

The McClain Defendants also seek sanctions associated with Plaintiff Bruno’s failure to 

preserve the logbook discussed above. Specifically, the McClain Defendants request an order 

precluding Plaintiff Bruno from seeking any economic losses associated with his wage and hour 

claims. Alternatively, they request that the Court give an adverse inference instruction to the 

jury regarding the absence of the logbook. (Def. Br., ECF No. 51-1 at 12). The McClain 

Defendants also seek an award of attorneys’ fees compensating them for their efforts in seeking 

production of the logbook and in bringing their motion for sanctions. (Id. at 13). 

As noted above, the McClain Defendants’ application requires the Court to conduct a 

two-part inquiry. First, the Court must determine whether Plaintiff Bruno’s conduct constitutes 

spoliation. If the Court agrees that Plaintiff Bruno has spoliated evidence, it must next consider 

the sanctions available to redress the situation. Bull, 665 F.3d at 73, n.5 (3d Cir. 2012). In 

analyzing potential spoliation, a court must examine whether: “[1] the evidence was in the 

party's control; [2] the evidence is relevant to the claims or defenses in the case; [3] there has 

been actual suppression or withholding of evidence; and, [4] the duty to preserve the evidence 

was reasonably foreseeable to the party.” Id. at 73. Three of these four factors are not in serious 

dispute and the Court can address them quickly. First, there is no question that the logbook in 

question was in Plaintiff Bruno’s exclusive control. (See, ECF No. 51-2 at 178:15-21). Second, 

as Plaintiff Bruno testified that he used the logbook when preparing his Complaint and that it 

contains information concerning the dates and times he worked for Defendant McClain & 

Company, (id. at p. 56 at 175:7-22), that document is clearly relevant to his claims. Given its 

obvious relevance to the case, the Court likewise finds that Plaintiff Bruno should have 

reasonably foreseen the need to preserve his logbook. The parties dispute on the spoliation issue 
28

focuses on whether Plaintiff Bruno engaged in “actual suppression or withholding” of the 

logbook.

With regard to the “actual suppression or withholding” factor, the Third Circuit 

unequivocally found that “a finding of bad faith is pivotal to a spoliation determination.” Bull, 

665 F.3d at 79. The McClain Defendants bear the burden of establishing that Plaintiff Bruno 

acted in bad faith. Id. at 77. The only evidence of record on this point, however, is that the 

logbook was inadvertently misplaced or thrown out. (Id. at 178:17-21). The McClain 

Defendants contend that, because Plaintiff Bruno was aware of the logbook prior to the 

commencement of litigation and failed to disclose the logbook in his Rule 26 disclosures or 

discovery responses, the only explanation for the logbook’s disappearance is that Plaintiff Bruno 

or his attorneys “actions, in withholding the logbook and allowing it to be destroyed, were 

knowing and intentional.” (Def. Br., ECF No. 51-1 at 11). The McClain Defendants’ 

arguments, however, are not evidentiary, Fromm v. MVM, Inc., 371 F. App’x 263, 270 (3d Cir. 

2010) (“arguments are not evidence, and we find no support in the record for this position”), and 

they have not introduced any actual evidence to support their accusations. 

In their reply submission, the McClain Defendants suggest, for the first time, that mere 

negligence may suffice to support a finding of spoliation. While they cite to Kounelis v. Sherrer, 

529 F. Supp.2d 503, 519 (D.N.J. 2008), and Klett v. Green, No. 10-cv-2091, 2012 U.S. Dist. 

LEXIS 89115 (D.N.J. June 27, 2012), for the proposition that spoliation occurs where a party 

“negligently” fails to preserve potentially discoverable evidence, (Def. Br., ECF No. 60 at 4-5),

neither of those decisions accounts for the Third Circuit’s guidance that “a finding of bad faith is 

pivotal to a spoliation determination.” Bull, 665 F.3d at 79. It seems clear that, post-Bull, 

“actual suppression requires more than ordinary negligence.” Kachigian v. Berkshire Life Ins. 
29

Co. of America, No. 09-6217 (DEA), 2013 U.S. Dist. LEXIS 46589, *9-10 (D.N.J. April 1, 

2013). Indeed, in Bull, the Third Circuit recognized that “[n]o unfavorable inference arises when 

the circumstances indicate that the document or article in question has been lost or accidentally 

destroyed”, 665 F.3d at 79 (quoting Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d 

Cir. 1995)). The only competent evidence before the Court suggests that this is precisely what 

happened with regard to Plaintiff Bruno’s logbook.

As the McClain Defendants have failed to establish, on the current evidentiary record,

that Plaintiff Bruno acted in bad faith with regard to the logbook, the Court cannot find that 

Plaintiff Bruno’s conduct amounts to spoliation under Bull. The Court will, therefore, deny the 

McClain Defendants’ request for sanctions, without prejudice. If the McClain Defendants 

uncover additional evidence suggesting that Plaintiff Bruno acted in bad faith with regard to the 

logbook, they may renew their application. 

V. CONCLUSION

Based on the foregoing findings, the Court will:

1. Grant the portion of Plaintiffs’ motion seeking to add Daniel McClain as a

defendant in his individual capacity;

2. Deny the portion of Plaintiffs’ motion seeking to add a claim under the New 

Jersey Prevailing Wage Act; 

3. Deny the portion of the McClain Defendants’ motion seeking to add a 

counterclaim against Plaintiff Bruno for negligent destruction of evidence; 

4. Grant the portion of the McClain Defendants’ motion seeking to add a 

counterclaim against Plaintiff Bruno for fraudulent concealment of evidence; and
30

5. Deny, without prejudice, the portion of the McClain Defendants’ motion seeking 

spoliation sanctions against Plaintiff Bruno.

s/ JOSEPH A. DICKSON, U.S.M.J.

JOSEPH A. DICKSON, U.S.M.J.

cc: Hon. Claire C. Cecchi, U.S.D.J.