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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NOT FOR PUBLICATION

ELLEN HEINE, et al., 

Plaintiffs,

v.

CITY OF GARFIELD, et al., 

 Defendant.

Civil Action No. 

2:11-CV-2655-ES-SCM

OPINION AND ORDER ON 

PLAINTIFF’S MOTIONS FOR LEAVE 

TO AMEND [D.E. 32]

ELLEN HEINE, et al.,

 

 Plaintiffs,

v.

CITY OF GARFIELD, et al.,

 

 Defendants.

Civil Action No. 

2:12-CV-04171-ES-SCM

I. INTRODUCTION

Pending before this Court is plaintiff Ellen Heine’s motion 

to amend her pleading in action 11-cv-2655 to file a ThirdAmended Complaint. (D.E. 32). The Court has considered the 

parties’ submissions and oral argument on May 28, 2013, and

pursuant to Federal Rule of Civil Procedure 78(b), and for the 

reasons set forth below the Court denies the motion to amend.

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II. BACKGROUND

Plaintiff Ellen Heine (“Plaintiff” or “Heine”) filed her 

initial civil rights complaint against defendant City of 

Garfield on May 6, 2011. (D.E. 1). She amended her pleading one 

week later. (D.E. 2). The following year, Heine filed a Second 

Amended Complaint without obtaining leave from the Court on 

February 24, 2012. (D.E. 11).

Heine subsequently filed a motion to amend her pleading to 

add additional plaintiffs against defendants. (D.E. 19). The 

motion was denied because 1) there was no proposed pleading

attached to the motion, [D.E. 26, ¶ 1] as required by Local 

Civil Rule 7.1(f);1 and 2) Plaintiff is not an attorney and is 

therefore not authorized to file pleadings for other persons or 

entities. (D.E. 26, ¶ 3). On the latter point, the Court 

instructed that Plaintiff “did not obtain signatures from” the 

persons she sought to add to the pleading. (D.E. 26, ¶ 3).

 

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 “The purpose of Local Rule 7.1(f) is to give the Court and the 

parties a chance to evaluate the sufficiency of the proposed 

pleading.” Folkman v. Roster Financial, 2005 U.S. Dist. LEXIS 

18117 (D.N.J. 2005); see also U.F.C.W. Local 56 v. J.D.’s 

Market, 240 F.R.D. 149, 150 (D.N.J. 2007) (stating that one of 

the “cardinal rules” for a party seeking leave to amend a 

pleading is that a copy of the proposed amended pleading be 

attached to the motion). Failure to include a proposed amended 

complaint is a basis for dismissal of a Plaintiff’s motion to 

amend his complaint. See, e.g., Tucker v. Wynne, 2009 U.S. 

Dist. LEXIS 69546 (D.N.J. 2009); Warren v. Gelardi, 2009 U.S. 

Dist. LEXIS 2333 (D.N.J. 2009); Parker v. Howmedica Osteonics 

Corp., 2008 U.S. Dist. LEXIS 2570 (D.N.J. 2008); Trans World 

Techs. V. Raytheon Co., 2007 U.S. Dist. LEXIS 82118 (D.N.J. 

2007).

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Subsequently, Plaintiff moved to amend her pleading to add 

Christopher Grieco, Keri Burke, Kara Grieco, Richard Holler, 

Ruthann Hughes, Andrew Tuscano, and Caitlin Ruppert as 

additional plaintiffs against the City of Garfield. (D.E. 32-3).

Defendant opposes the amendment as futile and because Plaintiff 

is not an attorney authorized to file for others. (D.E. 35).

III. DISCUSSION

Rule 15

Pursuant to Federal Rule of Civil Procedure 15(a)(2), “the 

court should freely give leave to amend when justice so 

requires.” While leave to amend is typically granted, it is not 

an absolute right and the decision to amend rests within the 

sound discretion of the district court. Foman v. Davis, 371 

U.S. 178, 182 (1962). Courts liberally grant motions to amend 

if the underlying facts or circumstances relied upon may be a 

proper subject for relief, granting the amendment would not be 

unduly prejudicial to the non-moving party, and the movant has 

not acted with undue delay, bad faith, or dilatory motive. Id. 

An amendment may only be granted if it is not futile, and the 

opposing party bears the burden of establishing that a proposed 

amendment should be denied. Id.

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Rule 11

Despite liberal pleading rules, a proposed pleading must 

still comply with the Federal Rules of Civil Procedure. Rule 

11(a) requires that every pleading and motion be signed by the 

party or his attorney of record. The proposed pleading 

addressed the earlier Rule 11 problem by including signatures 

from Plaintiff as well as Christopher Grieco, Keri Burke, Kara 

Grieco, Richard Holler, Ruthann Hughes, Andrew Tuscano, and 

Caitlin Ruppert. (D.E. 32-3). That, however, is not the only 

deficiency with the proposed pleading.

Rule 10

Rule 10(b) requires that a “party must state its claims ... 

in numbered paragraphs, each limited as far as practicable to a 

single set of circumstances.” Fed.R.Civ.P. 10(b). Rule 10(b) 

is “designed to achieve clarity and simplicity in the 

pleadings.” 5A Charles Alan Wright & Arthur R. Miller, Federal 

Practice and Procedure § 1324 (3d ed. 2004) (citing Anderson v. 

Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364 (11th 

Cir. 1996)). Courts may require repleading pursuant to Rule 

10(b) when three circumstances are present: “[1] where multiple 

claims are asserted, [2] where they arise out of separate 

transactions or occurrences, and [3] where separate statements 

will facilitate a clear presentation.” Bautista v. Los Angeles 

County, 216 F.3d 837, 840-41(9th Cir. 2000) (citing 5A Charles 

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Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 

1324 (2d ed. 1990)). “The purpose of the requirement of separate 

counts is to clarify the issues and simplify the trial . . . .” 

Williamson v. Columbia Gas & Elec. Corp., 186 F.2d 464, 469 (3d 

Cir. 1951); accord Bautista, 216 F.3d at 841 (“[S]eparate counts 

permit pleadings to serve their intended purpose to frame the 

issue and provide the basis for informed pretrial 

proceedings.”). 

The proposed complaint in this matter presents an excellent 

case for enforcing Rule 10(b) and requiring re-pleading. The 

plaintiff principally identified in the body of the proposed 

pleading is Heine. Kara Grieco, for example, is named in the 

caption and signed the proposal, but there are no claims plead 

on her behalf. 

Rule 8

Similarly, the proposed pleading does not comply with the 

pleading requirements of Rule 8(a)(2), which requires that a 

complaint contain “a short and plain statement of the claim 

showing that the pleader is entitled to relief.” Fed.R.Civ.P. 

8(a)(2). A complaint must plead facts sufficient to at least 

“suggest” a basis for liability. See Spruill v. Gillis, 372 F.3d 

218, 236 n.12 (3d Cir. 2004). “Specific facts are not 

necessary; the statement need only give the defendant fair 

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notice of what the . . . claim is and the grounds upon which it 

rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal 

quotations omitted).

While a complaint . . . does not need detailed factual

allegations, a plaintiff’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 . . . . 

Factual allegations must be enough to raise a right to 

relief above the speculative level . . . .

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(internal citations omitted).

The Court of Appeals for the Third Circuit has held that

the Twombly pleading standard applies to civil rights

complaints. See Phillips v. Cnty. of Allegheny, 515 F.3d 224,

234 (3d Cir. 2008). It has ruled that:

Context matters in notice pleading. Fair notice under

Rule 8(a)(2) depends on the type of case—some complaints 

will require at least some factual allegations to make out 

a showing that the pleader is entitled to relief, in order 

to give the defendant fair notice of what the . . . claim 

is and the grounds upon which it rests. . . . Put another 

way, in light of Twombly, Rule 8(a)(2) requires a showing 

rather than a blanket assertion of an entitlement to 

relief. We caution that without some factual allegation in 

the complaint, a claimant cannot satisfy the requirement

that he or she provide not only fair notice, but also the 

grounds on which the claim rests.

Id. at 232 (internal citations & quotations omitted).

There is no short and plain statement of claims showing 

that each of the putative plaintiffs are entitled to relief. 

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Instead, the putative plaintiffs appear to be witnesses to the 

claims asserted by plaintiff Heine. This makes it extremely 

difficult if not impossible for Defendant to answer this 

proposed pleading as to each putative plaintiff.

Thomas D. Williamson, Esq. appeared for Caitlin Rupert, 

Kara Grieco, and Christopher Grieco at the status conference and 

oral argument on May 28, 2013. Rather than rely upon the 

deficient pleading of a lay pro se party to this action, Mr. 

Williamson may wish to consider drafting and submitting a 

pleading that preserves his clients’ claims, if they have any 

claims.

IV. CONCLUSION

For the foregoing reasons, and good cause shown,

IT IS on this 28th day of May, 2013,

ORDERED that Plaintiff’s motion to amend her pleading is 

denied. 

 

5/28/2013 5:52:46 PM

Date: May 28, 2013

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