                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3129-17T2

KEVIN VIELDHOUSE,

          Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,
DIVISION OF STATE POLICE
OF THE STATE OF NEW
JERSEY, DIVISION OF LAW
AND PUBLIC SAFETY, JOSEPH
R. FUENTES and RAYMOND
GUIDETTI,

     Defendants-Respondents.
_________________________________

                    Argued April 29, 2019 – Decided May 15, 2019

                    Before Judges Fasciale and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Docket No. L-1833-14.

                    George T. Daggett argued the cause for appellant.

                    Tasha M. Bradt, Deputy Attorney General, argued the
                    cause for respondents (Gurbir S. Grewal, Attorney
                    General, attorney; Melissa H. Raksa, Assistant
            Attorney General, of counsel; Tasha M. Bradt, on the
            brief).

PER CURIAM

      Plaintiff Kevin Vieldhouse appeals from two orders dated February 16,

2018. One order granted summary judgment to defendant New Jersey State

Police (NJSP) and dismissed plaintiff's complaint alleging violations of the

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. The

other order denied plaintiff's motion to file and serve a second amended

complaint against the NJSP alleging violations of the New Jersey Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49.1

      On appeal, plaintiff argues the judge erred by denying his motion to file a

second amended complaint alleging a LAD claim. Relying on Rule 4:9-3,

plaintiff contends that his LAD claim should relate back to the allegations raised

in his initial pleadings, and therefore, the judge erred by denying the motion.

Thus, he says that the judge should have relaxed the statute of limitations (SOL).




1
  Although plaintiff's case information statement identifies two issues – whether
his "CEPA violations and age discrimination should have survived" summary
judgment, and whether the judge erred by denying his attempt to filed a second
amended complaint to assert a LAD claim – his merits brief confirms that
plaintiff is not challenging the order granting summary judgment dismissing the
CEPA case.
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                                        2
The NJSP asserts that the judge did not abuse her discretion because plaintiff's

LAD claim is "distinctly new and different."

                                        I.

      Plaintiff joined the NJSP in 1993. In 2012, he was promoted to an acting

position as Sergeant First Class. In February 2014, after promotions were posted

for the Unit Head of Narcotics, plaintiff submitted a Special Report (the Special

Report) entitled "Career Development-Promotional Rankings," in which he

alleged that many of the individuals promoted were "not currently in the specific

Bureau and with limited, or no, experience in the unit they were assigned to

head."

      In March 2014, he was promoted to a full Sergeant First Class. But he

maintained that the NJSP continued to violate the established systems by

promoting those "with less experience and lower on the promotional list ahead

of . . . [p]laintiff." Thus, he alleged that the NJSP's continued violations of its

own internal policies and Standard Operating Procedures were retaliatory in

contravention of CEPA because plaintiff authored the Special Report and

complained about violations during career counseling meetings.

      Plaintiff filed a complaint and jury demand in August 2014, followed by

an amended complaint in March 2015. He alleged that he suffered retaliation in


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                                        3
contravention of CEPA. In January 2018, three days before the scheduled trial

date, the matter was adjourned to allow for motion practice. The NJSP moved

for summary judgment, and plaintiff moved for permission to file a second

amended complaint, including a claim of age discrimination in violation of the

LAD, and alleged that the Assistant Attorney General (AAG) misrepresented

information "upon which [he] relied to his detriment." 2 The judge granted the

NJSP's motion, and denied plaintiff's motion.

                                        II.

      "The determination of a motion to amend a pleading is generally left to

the sound discretion of the trial [judge], and [her] exercise of discretion will not

be disturbed on appeal, unless it constitutes a 'clear abuse of discretion.'"

Franklin Med. Assocs. v. Newark Pub. Schs., 362 N.J. Super. 494, 506 (App.



2
   Plaintiff contended that another plaintiff, Robert Tobey (Tobey), who was
represented by the same counsel, in an unrelated matter filed an Equal
Employment Opportunity (EEO) complaint, which alleged age discrimination in
the NJSP promotional process. The witness for the EEO investigation, a NJSP
Captain, suggested that Tobey and several other members, such as plaintiff, were
overlooked for a promotion because of their age. Plaintiff stated that his counsel
first received the AAG's letter in connection with the Tobey matter in September
2015, and that he detrimentally relied on it, as the AAG found Tobey's claims
unsubstantiated and stated that there were no witnesses who corroborated
Tobey's allegations. Plaintiff alleged that this was a "false statement" that
"deprived [him] of a cause of action for age discrimination and relief purs uant
to the Rules of the EEO."
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                                         4
Div. 2003) (citations omitted). We will find an abuse of discretion "if the

discretionary act was not premised upon consideration of all relevant factors,

was based upon consideration of irrelevant or inappropriate factors, or amounts

to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App.

Div. 2005). It arises when a decision is "made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002).

      After an answer has been filed, "a party may amend a pleading only by

written consent of the adverse party or by leave of court which shall be freely

given in the interest of justice." R. 4:9-1. "While motions for leave to amend

pleadings are to be liberally granted, they nonetheless are best left to the sound

discretion of the trial [judge] in light of the factual situation existing at the time

each motion is made." Kernan v. One Washington Park Urban Renewal Assocs.,

154 N.J. 437, 457 (1998) (quoting Fisher v. Yates, 270 N.J. Super. 458, 467

(App. Div. 1994)).      Such a determination requires a two-step process: (1)

"whether the non-moving party will be prejudiced"; and (2) "whether granting

the amendment would nonetheless be futile." Notte v. Merchs. Mut. Ins. Co.,

185 N.J. 490, 501 (2006).

      Rule 4:9-3 governs when amendments relate back and states,


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                                          5
            [w]henever the claim or defense asserted in the
            amended pleading arose out of the conduct, transaction
            or occurrence set forth or attempted to be set forth in
            the original pleading, the amendment relates back to the
            date of the original pleading; but the court, in addition
            to its power to allow amendments may, upon terms,
            permit the statement of a new or different claim or
            defense in the pleading.

            [(Emphasis added).]

      Plaintiff relies on Viviano v. CBS, Inc., 101 N.J. 538, 556 (1986), where

our Supreme Court permitted relation back when the plaintiff could not properly

identify an additional defendant due to frustration of discovery by the defendant.

Plaintiff draws a parallel between the deprivation of the name of a defendant

and the deprivation of a cause of action. The Court explained that,

            [c]ompliance with the Rules of Practice is essential for
            an orderly legal system, but our goal is not so much
            rigid compliance with the letter of the Rules as it is the
            attainment of substantial justice. The Rules of Practice
            are not an end unto themselves, but a means of serving
            the ends of justice.

            [Id. at 550-51.]

Plaintiff claims that he is entitled to the benefit of the discovery rule as he was

misled by the AAG's letter and otherwise would have included a cause of action

for age discrimination in his first amended complaint.

      Here, the judge stated that,


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                                        6
            in light of the fact that . . . plaintiff could have certainly
            for the last year or more conducted an investigation
            when [he] became aware of the potential LAD claim
            and failed to do so, . . . to grant the amendment at this
            juncture would, in fact, prejudice the State, and . . . that
            is what is weighing most heavily on the [c]ourt.

She further explained that, "[t]he [c]ourt's task is to be fair and impartial and to

seek justice" and "that allowing an amendment at this late stage . . . would

present the State with great difficulty. The State . . . and the [c]ourt would have

to effectively allow an entire new discovery process to begin." She also noted

that, "in the proposed amended complaint there's very little about the age

discrimination allegation, and so . . . there would have to be another six months

or a year of investigation and depositions[.]" Consequently, she stated that

"what's weighing most heavily upon the [c]ourt is the fact that it could have been

undertaken sooner." Finally, the judge held that, "in the interest of justice,

because it would prejudice the defense, . . . the motion to amend the complaint

will be denied. Obviously then the LAD claim is outside of the [SOL]. It's been

well beyond the two-year period[.]"

      The NJSP maintains that permitting plaintiff to file a second amended

complaint would be both prejudicial and futile. "[T]he factual situation in each

case must guide the [judge]'s discretion." Bldg. Materials Corp. of Am. v.

Allstate Ins. Co., 424 N.J. Super. 448, 484 (App. Div. 2012). "One circumstance

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                                          7
to consider is the reason for the late filing." Id. at 484-85. "Other considerations

include whether the newly-asserted claim would unduly prejudice the opposing

party, survive a motion to dismiss on the merits, cause undue delay of the trial,

or constitute an effort to avoid another applicable rule of law." Id. at 485. "[A]n

exercise of . . . discretion will be sustained where the trial [judge] refuses to

permit new claims . . . to be added late in the litigation and at a point at which

the rights of other parties to a modicum of expedition will be prejudicially

affected." Du-Wel Prods., Inc. v. U.S. Fire Ins. Co., 236 N.J. Super. 349, 364

(App. Div. 1989).

      "[C]ourts are free to refuse leave to amend when the newly asserted claim

is not sustainable as a matter of law. In other words, there is no point to

permitting the filing of an amended pleading when a subsequent motion to

dismiss must be granted." Notte, 185 N.J. at 501. The LAD has a two-year

SOL. See Montells v. Haynes, 133 N.J. 282, 292 (1993). This is so "to

encourage prompt resolution of claims, particularly in discrimination cases

where evidence may be 'vulnerable to the passage of time.'" Henry v. N.J. Dep't.

of Human Servs., 204 N.J. 320, 333 (2010) (quoting Montells, 133 N.J. at 293).

"Fairness to the accuser, the accused, and to the judicial system require a timely




                                                                            A-3129-17T2
                                         8
adjudication of discrimination claims.       Thus, both fairness and efficiency

support a two-year [SOL]." Montells, 133 N.J. at 293.

      Plaintiff alleged for the first time in his proposed second amended

complaint that the NJSP "chose younger members for promotion to the exclusion

of older, more experienced members" and "made recommendations for

promotion based on age discrimination" between February and May 2014. Thus,

the latest that the LAD claim could have accrued was May 2014, resulting in a

requisite filing date of May 2016. As plaintiff did not move to file his second

amended compliant until January 2018, this is past the expiration of the SOL.

"It would be supremely impracticable, if not pernicious, to condone a practice

which would permit adventurous litigants by means of successive amendments

to the pleadings in the original action to prosecute . . . a procession of distinctly

disparate causes of action and thus elude the statutory limitations of time."

Young v. Schering Corp., 275 N.J. Super. 221, 232 (App. Div. 1994).

      In his amended complaint, plaintiff stated that the NJSP retaliated against

him by continuing to promote "less qualified individuals who were . . . personal

friends" of defendant Guidetti. He wrote that, "[i]n retaliation against . . .

[p]laintiff for having objected to [d]efendant Guidetti's violation of the

procedures for promotions within the [NJSP], . . . [d]efendant Guidetti has


                                                                             A-3129-17T2
                                         9
moved persons junior . . . with less experience and lower on the promotional list

ahead of . . . [p]laintiff and promoted those others." Yet in his second amended

complaint, plaintiff stated that the NJSP "chose younger members for promotion

to the exclusion of older" members and that the NJSP "made recommendations

for promotion based upon age discrimination." He claimed that this was a

"systematic[] depriv[ation]."

      Relying on Rule 4:9-3, plaintiff contends that his LAD claim should relate

back to the allegations raised in his initial pleadings, and therefore, the judge

erred by denying the motion. Thus, he asserts that the judge should have relaxed

the SOL. The NJSP characterizes the proposed second amended complaint as a

"distinctly new and different cause of action."

      Here, plaintiff did not initially allege that he was the victim of age

discrimination. Rather, he alleged that the NJSP promoted others with less

experience than he had, who were lower on the promotion list. The crux of his

initial allegation was that the NJSP promoted others who were "less qualified

individuals who were . . . personal friends." In his initial pleadings, plaintiff did

not allege that these individuals were younger than he was, and, in fact, he did

not even mention their ages. His reference to "junior," in the context of the

overall factual allegations, meant "less experienced" and "less qualified." See


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                                        10
Junior, Black's Law Dictionary (10th ed. 2014) (defining junior as "[l]ower in

rank or standing; subordinate"). Moreover, his reference to age in the initial

pleadings was not made to support a discrimination claim, but instead to support

his alleged damages for the CEPA count.

      But in his proposed second amended complaint, plaintiff alleged that the

NJSP "chose younger members for promotion to the exclusion of older"

members. This time he specifically alleged age discrimination. Rule 4:9-3

requires that the new allegations arise out of "the conduct, transaction or

occurrence" in the original pleadings, and plaintiff presented two different

causes of action. Consequently, an SOL analysis was appropriate. Thus, the

judge properly denied plaintiff the right to file a second amended complaint.

                                       III.

      Second, plaintiff argues that he "could not have made a CEPA election

because he didn't know that there were alternatives to CEPA." He states that

"[w]hat the [NJSP] is saying in this case is, we deprived you of a cause of action

by deception and now, you should continue to be deprived of a cause of action

even though we tricked you."       Plaintiff's efforts to file a second amended

complaint came very late in the case. He blames that on the alleged "false

statement," which deprived him from making a LAD claim. But plaintiff's


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                                       11
counsel was in possession of the AAG's letter since 2015, so he could have

pursued the LAD claim at that time. Thus, because of the two year SOL, any

attempt to file the second amended complaint would be futile.

      To the extent that we have not addressed any of the parties' remaining

arguments, we conclude that they lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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