                                        PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                   __________

                       No. 16-2896
                       __________

  JOAN MULLIN, Administratrix of the Estate of Robert
     Mullin, deceased and Joan Mullin, individually

                             v.

      ADMINISTRATOR KAREN BALICKI; ROBERT
   PATERSON; DIRECTOR MARIE DUNLAP-PRYCE;
  JANE BYRD, LPN; ERIN MARUSKY, R.N.; OFFICER
DIMLER; NURSE BEATRICE TEEL; KINTOCK GROUP;
     COUNTY OF MERCER; JOHN DOES 4-10 (as yet
    identified and unknown governmental, county, or state
officials, supervisors, agents or employees); ABC ENTITIES
1-10 (as yet identified and unknown governmental, county, or
       state officials, supervisors, agents or employees)

                        Joan Mullin,
                              Appellant
                ______________________

      On Appeal from the United States District Court
                for the District of New Jersey
               (D.C. Civil No. 3-11-cv-00247)
     District Judge: The Honorable Mary Little Cooper
                 ______________________
                   Argued on June 7, 2017

Before: CHAGARES, VANASKIE, and FUENTES, Circuit
                    Judges

             (Opinion Filed: November 6, 2017)


Shelley L. Stangler, Esq. [Argued]
Law Offices of Shelly L. Stangler, P.C.
155 Morris Avenue, Suite 202
Springfield, NJ 07081
       Counsel for the Appellant

Gregory R. Bueno, Esq. [Argued]
Daniel M. Vannella, Esq.
Office of Attorney General of New Jersey
25 Market Street, P.O. Box 112
Trenton, NJ 08625
              Counsel for the Appellees

                         __________

                 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




                               2
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.




                              3
    I.   BACKGROUND 1

           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 staff. It was there, in his Assignment Facility
cell, that he took his own life—less than a day after entering
the Facility.

        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.


1
 The litigation has been unusually confusing, complex,
and—to be frank—frustrating, due in part to the swirling gyre
of overlapping motions practice. We simplify when practical.




                              4
          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, 2 raising state tort claims and constitutional
vulnerability-to-suicide claims (the latter of which is a
variation on a constitutional claim alleging deliberate
indifference to a serious medical need). The complaint
focused on the defendants’ alleged failure to provide Robert
with the level of care, treatment, and monitoring that he
needed, and that was required by prison policy for someone
with his history of depression, self-harm, and substance
abuse. Mullin alleged that Robert was placed in a cell that
was inadequately supervised and altogether inappropriate for
a person with a history of suicide attempts—a decision made
all the more inexcusable by the medical history and recent
relapse into drug addiction that his custodians failed to
properly review or otherwise heed.

        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

2
  Although Mullin sued both in her individual capacity and as
the administratrix of Robert’s estate, a dual role reflected in
our caption, the claims now on appeal are those brought in
her representative capacity on behalf of Robert’s estate.




                               5
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 Judge
allowed Mullin’s amendment to include the revised
allegations against Officer Dimler, finding them to be
“plausible” instead of merely possible. 3 Mullin’s Second
Amended Complaint (“SAC”), the operative complaint for
the remainder of the litigation in the District Court, was then
filed in September 2012. The SAC, like its predecessors, was
met with Rule 12 motions to dismiss.

3
    Order at 7, ECF No. 101.




                               6
           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.” 4 It appears that the July 2013 disclosures did not
pertain to Robert individually or contain information relating
to the night he died.

       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


4
    JA 1015.




                              7
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, 5 interacted with Robert over his
only evening at the facility, and may have been the last
person (instead of Officer Dimler) to see Robert alive. The
details of Officer X’s interaction with Robert, as related in the
Report, were very disturbing. Six inmates, who had been
interviewed about Robert hours after his suicide—close in
time to the incident, and potentially before having any
opportunity to get their stories straight—volunteered that they
had heard Robert ask Officer X to see “psych,” and that
Officer X had refused Robert’s request and taken no action.
Three of the inmates went further: Officer X not only refused
assistance, but egged Robert on, telling him that he “might as
well kill [him]self.” 6 The Report therefore suggested Officer
X’s actual awareness of, and indifference to, Robert’s
condition. The Report elsewhere revealed that Robert was in
fact classified as a “special needs” inmate requiring enhanced
levels of care. 7 Thus, although Officer X, interviewed later,
flatly denied both parts of this account, the Report had the
potential to reframe and support Mullin’s case.




5
  Because the guard is not currently a party and might not
become one, his name is redacted in this opinion.
6
  JA 986.
7
  JA 989.




                               8
           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.” 8 Due to a clerical
error,   Mullin’s     attorney failed     to    review    the
CONFIDENTIAL MULLIN material that contained the
Report and other relevant documents. The disclosures had
been provided by the State Defendants on two optical discs,
one for the MULLIN material and the other for the
CONFIDENTIAL MULLIN material. The attorney asked her
staff to print out both discs for review, but one disc was
printed twice and the other was misfiled in the folder of an
unrelated matter. And because Mullin’s attorney was not
aware of the new material, she did not move to further amend
her complaint, even though an earlier scheduling order had
suggested that further amendment for truly “new” discoveries
might be allowed.

           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


8
    JA 1098.




                              9
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. 9

          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


9
  See Mullin v. Balicki, No. 11-247, 2013 WL 5935998, at *6
(D.N.J. Nov. 1, 2013). The halfway house itself, which had
been named as a defendant but did not file a Rule 12 motion,
also remained in the case through November 2015, when it
entered into a stipulation of dismissal.




                             10
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. 10 Mullin timely appealed.




10
     See JA 80–85, 2015 U.S. Dist. LEXIS 90384.




                              11
 II.   DISCUSSION 11



11
   We have jurisdiction under 28 U.S.C. § 1291. Mullin’s
appeal challenges the dismissal of the SAC (per Officer
Dimler only) and the subsequent denial of reconsideration, in
addition to the order denying further leave to amend. The last
of these, which was the only topic addressed at oral argument,
is discussed at length above the margin; the first two are
summarily resolved in this note.

With regard to the order dismissing the SAC, we have
reviewed the District Court’s dismissal decision against the
backdrop of Palakovic v. Wetzel, 854 F.3d 209 (3d Cir. 2017),
which clarified our vulnerability-to-suicide precedent but was
decided after the District Court issued its opinion in this case.
Having the benefit of the parties’ supplemental briefing, we
are satisfied that the District Court correctly dismissed the
constitutional and state-tort claims against Officer Dimler for
substantially the reasons set forth in that Court’s opinion. We
particularly agree that, when pleading a vulnerability-to-
suicide claim, an allegation that a defendant “knew or should
have known” of a prisoner’s vulnerability is a conclusory
recitation of the knowledge element of the underlying cause
of action, and cannot meet the plaintiff’s pleading burden
without additional facts showing (or allowing the reasonable
inference of) knowledge or the responsibility to know. See
Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (per
curiam).

In light of our leave-to-amend disposition, we need not reach
the order denying reconsideration, which was premised
largely on the new discovery evidence probative of the




                               12
          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. 12 Lacking a time limit or an outer bound on
when amendment is permissible, the Rule instructs courts to
“freely give leave [to amend] when justice so requires.” 13
This liberal amendment regime helps effectuate the “general
policy embodied in the Federal Rules favoring resolution of
cases on their merits.” 14

        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 (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. 15 The Foman factors are not exhaustive, allowing a
court to ground its decision, within reason, on consideration

request for amendment.          Accordingly, both the order
dismissing the SAC and the order denying reconsideration
will be affirmed.
12
   See Fed. R. Civ. P. 15(a)(2).
13
   Id.
14
   Island Creek Coal Co. v. Lake Shore, Inc., 832 F.2d 274,
279 (4th Cir. 1987) (internal quotation marks and citation
omitted).
15
    Foman, 371 U.S at 182; see also United States ex rel.
Schumann v. AstraZeneca Pharm. L.P., 769 F.3d 837, 849
(3d Cir. 2014).




                              13
of additional equities, such as judicial economy/burden on the
court 16 and the prejudice denying leave to amend would cause
to the plaintiff. 17 All factors are not created equal, however,


16
   See USX Corp. v. Barnhart, 395 F.3d 161, 167–68 (3d Cir.
2004).
17
   See Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th
Cir. 1998).
As they did before the District Court, the State Defendants
suggest that the liberal amendment standard should not apply
with its ordinary force because Mullin did not seek leave until
after “judgment” had been entered—meaning, in this case, the
order granting the pending motions to dismiss in large part.
State Defs. Br. 26. They refer to a line of cases in which we
explained that “[w]hen a party seeks leave to amend a
complaint after judgment has been entered, it must also move
to set aside the judgment pursuant to Federal Rule of Civil
Procedure 59(e) or 60(b), because the complaint cannot be
amended while the judgment stands.” Jang v. Boston Sci.
Scimed, Inc., 729 F.3d 357, 367–68 (3d Cir. 2013); see also
Ahmed v. Dragovich, 297 F.3d 201, 207–08 (3d Cir. 2002).
The “judgment” in that line of cases, however, meant a final
or appealable order. See Cureton v. Nat’l Collegiate Athletic
Ass’n, 252 F.3d 267, 272–73 (3d Cir. 2001). But here,
judgment had not been entered at the time Mullin moved to
amend, as the case was still ongoing against the intake nurse
and the District Court had not otherwise solemnized its Rule
12 decision into a judgment by using Rule 54(b). Jang,
Cureton, Ahmed, and other decisions in this line are thus
distinguishable from this case, and no formal post-judgment
standard applies (although these concerns can of course still
be considered).




                              14
as “prejudice to the non-moving party is the touchstone for
the denial of an amendment.” 18

       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). 19 If we find an error
in the District Court’s reasoning, we exercise our own
discretion in determining whether we will nevertheless affirm
“if . . . the District Court’s [remaining] findings would
support denial of leave to amend.” 20

       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.” 21 Moreover, leave to amend is not
an all-or-nothing proposition. Relying on the Foman factors,
courts can choose instead to impose reasonable conditions on
the right to amend in lieu of a pure grant or denial.

18
   Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006)
(internal quotation marks and citation omitted).
19
   See Schumann, 769 F.3d at 849.
20
   Maersk, 434 F.3d at 204.
21
   Berkshire Fashions, Inc. v. The M.V. Hakusan II, 954 F.2d
874, 886 (3d Cir. 1992); see also Martin’s Herend Imports,
Inc. v. Diamond & Gem Trading United States of Am. Co.,
195 F.3d 765, 770 (5th Cir. 1999) (explaining that
“discretion” is misleading because of the “bias in favor of
granting leave to amend” (internal quotation marks and
citation omitted)).




                             15
Specifically, a court “may use its discretion to impose
conditions on the allowance of a proposed amendment as an
appropriate means of balancing the interests of the party
seeking the amendment and those of the party objecting to it,”
such as by “narrow[ing] the scope of the amendment if it
considers the request too broad.” 22

        One additional background consideration applies in
civil rights cases like this one. In our Circuit, “district courts
must offer amendment [in civil rights cases]—irrespective of
whether it is requested—when dismissing a case for failure to
state a claim unless doing so would be inequitable or futile.”23
By contrast, plaintiffs in “ordinary” civil litigation—
commercial disputes, for instance—must take affirmative
steps to obtain amendment in the face of dismissal. 24

          B. Analysis

       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

22
   Wright & Miller § 1486; see also Garfield v. NDC Health
Corp., 466 F.3d 1255, 1271 (11th Cir. 2006) (“[T]he granting
of leave to amend can be conditioned in order to avoid
prejudice to the opposing party.” (internal quotation marks
and citation omitted)).
23
   Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc.,
482 F.3d 247, 251 (3d Cir. 2007); see also Estate of Lagano
v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 861 (3d
Cir. 2014).
24
   See Fletcher-Harlee, 482 F.3d at 252–53.




                               16
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. 25
As there is “no presumptive period in which . . . delay
becomes ‘undue,’” 26 the “question of undue delay requires
that we focus on the movant’s reasons for not amending
sooner” while “bearing in mind the liberal pleading
philosophy of the federal rules.” 27 “Following this principle,
we have refused to overturn denials of motions for leave to

25
   See Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266
(3d Cir. 2008); Cureton v. Nat’l Collegiate Athletic Ass’n,
252 F.3d 267, 273 (3d Cir. 2001).
26
   Maersk, 434 F.3d at 205. In Maersk, we suggested that an
eleven-month delay, as measured from “commencement of an
action,” would not generally be “undue” by itself. See
Maersk, 434 F.3d at 205. As discussed more fully below,
there are two periods of delay here, the longer of which can
be measured to run ten months. Although neither period of
delay would be presumptively undue if measured from the
beginning of a lawsuit, the reasoning of Maersk may not
apply with equal force to delays measured from a different
point in an already long-running lawsuit.
27
   Cureton, 252 F.3d at 273.




                                17
amend where the moving party offered no cogent reason for
the delay in seeking the amendment.” 28

       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 she first
brought the material to the Court’s attention was thus not
undue. 29 She explained that she received the discovery after
the return date for the motions to dismiss, assumed the period
for requesting amendment was closed, and further assumed
that the Court would not reopen the record. Counsel also
argued that amending was unnecessary. She believed that the
SAC’s description of various policies and procedures was
enough to survive the motions to dismiss, and that the
meaning of the various policies of procedures would become
clearer after she had received additional discovery.


28
   CMR D.N. Corp. v. City of Phila., 703 F.3d 612, 629 (3d
Cir. 2013).
29
    We assume, as the Magistrate Judge appears to have
decided, that the relevant delay is from July to November,
which is when Mullin brought the July 2013 discovery to the
Court’s attention via her motion for reconsideration




                             18
       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.” 30 The
Magistrate Judge also thought that counsel’s delay was
impermissibly “tactical,” resulting in “waiting until the
Motions to Dismiss were largely granted, and then asking for
a ‘do-over.’” 31 Deciding that this delay was not supported by
a cogent reason, the Magistrate Judge deemed it “clearly
undue.” 32

        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. 33 More recently, we have
cautioned against overreading the scope of some of those
earlier cases. 34 Further, the decisions spurning a wait-and-see
approach are “standard” civil disputes. 35 This, by contrast, is


30
   JA 73.
31
   JA 74.
32
   JA 74.
33
   See supra note 17; see, e.g., Jang, 729 F.3d at 368; In re
Adams Golf, Inc. Sec. Litig., 381 F.3d 267, 280 (3d Cir. 2004)
(addressing unjustified two-and-a-half-year delay).
34
    See United States ex rel. Customs Fraud Investigations,
LLC. v. Victaulic Co., 839 F.3d 242, 252 (3d Cir. 2016)
(distinguishing, among other things, Jang and Adams).
35
   Jang is a contract case, see 729 F.3d at 359; Adams is a
securities case, see 381 F.3d at 270; and California Public
Employees’ Retirement System v. Chubb Corp., 394 F.3d 126




                              19
a civil rights case, with the attendant requirement in our case
law that an opportunity to amend be presumed. In the
ordinary course, a civil rights plaintiff would not expect a
modest wait-and-see approach to constitute undue delay by
itself—unless egregious or excessive, or if some other factor
rendered the delay undue.

        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. 36 It is certainly reasonable to think
that there may be some situations where a civil rights
plaintiff’s pre-dismissal actions, or a court’s informal testing
of the merits of the pleading, might count against granting
amendment. But this case does not present such a situation.
For one, although Mullin amended twice before, the second
amendment (leading to the SAC) can be viewed as a
perfection of the first, partially unsuccessful amendment. 37
For another, her pleadings had never actually been formally
evaluated by the District Court, and “the mere fact that a
defendant files a motion to dismiss is not necessarily


(3d Cir. 2004), is a “securities class action lawsuit,” id. at
134.
36
   See Customs Fraud, 839 F.3d at 252 (“In none of the cases
the District Court relied upon did we uphold a dismissal with
prejudice where the plaintiff had been given no opportunity to
amend its complaint and would not be given an opportunity to
amend in the future.” (emphasis added)).
37
   Cf. Bower v. Jones, 978 F.2d 1004, 1010 (7th Cir. 1992)
(favoring amendment despite prior amendments when party
acquired newly discovered documents and did not delay in
seeking amendment).




                              20
sufficient to put a plaintiff on notice that the court will find
his complaint to be deficient.” 38

       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. 39 The Magistrate Judge’s decision was, of
course, not binding on the District Court, let alone on us. But
it does suggest that Mullin’s “tactical” approach to the
dismissal cannot be fairly called dilatory or contumacious, in
light of the solicitude given in civil rights cases and the prior
suggestion from the Magistrate Judge that the motion to
dismiss would fail.

                     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. 40 The issue is whether this can suffice as a reason at
all. We will, for the moment, disregard the issue of prejudice
and instead look to whether, prejudice notwithstanding, the
delay was “undue.”


38
   Customs Fraud, 839 F.3d at 249.
39
   Order at 7, ECF No. 101.
40
   See Langbord v. U.S. Dep’t of Treasury, 832 F.3d 170, 188
(3d Cir. 2016) (en banc), cert. denied, 137 S. Ct. 1578 (2017).




                               21
       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.” 41 Several
“clues” should have alerted counsel to the missing discovery:
(1) the initial April 2013 cover letter, which referred to the
production of confidential materials; (2) the subsequent
production in July 2013 of additional CONFIDENTIAL
documents with bates numbers following the “missing”
range, which should have indicated that the “missing” range
had already been provided 42; and (3) an October 2013
interrogatory response that pointed to the Report but did not
separately provide it. The Magistrate Judge concluded that
counsel’s “lack of diligence” was to blame, given the
“repeated opportunities and repeated clues” that “should have
made a diligent attorney aware that something was missing”;
that there was “no inquiry made . . . leads to the inescapable
conclusion that the [April 2013 discovery] delay was in fact
undue.” 43

        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

41
  JA 75.
42
  The April 2013 production of confidential materials had a
Bates stamp range of 0001-0305, and the July 2013
production of confidential material had a bates stamp range of
0306-0918. JA 887, 889
43
     JA 76.




                             22
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. 44

       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,” 45 but, as explained below, something more is
required.

       It is well established that “clients must be held
accountable for the acts and omissions of their attorneys.”46
In some circumstances, the Federal Rules allow for a court to
relieve a party from adverse consequences arising out of
“mistakes” or “excusable neglect,” which are often not the
party’s but the attorney’s. 47 In that context, we have
conducted an “equitable” inquiry into the circumstances

44
   See JA 689. We note that, if the October 2013 interrogatory
response referring to the Report is the point where a
reasonable attorney should have been alerted to the missing
discovery, it may have been appropriate to measure the delay
from the time of reasonable discovery as opposed to the
moment when the initial error occurred, depending on
whether the error was in fact excusable.
45
   JA 76.
46
   Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 396 (1993).
47
   See, e.g., Fed. R. Civ. P. 60(b)(1) (allowing for relief from
a final judgment on the basis of “mistake, inadvertence,
surprise, or excusable neglect”); Fed. R. App. P. 4(a)(5)
(allowing for extension of time to appeal a notice of appeal
when a party shows “excusable neglect or good cause”).




                              23
surrounding a party’s failure, balancing the factors of
prejudice to the non-movant, the length of the delay, the
reason for the delay, and the movant’s good faith. 48

       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.” 49 An omission caused by
carelessness, even if within counsel’s control, may therefore
be excusable. 50

        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
between the Rule 15 test and the excusable neglect analysis,
mistakes, omissions, or neglect, should be evaluated with

48
   Ragguette v. Premier Wines & Spirits, 691 F.3d 315, 319,
325 (3d Cir. 2012); see also Jennings v. Rivers, 394 F.3d 850,
857 (10th Cir. 2005) (“An additional consideration is whether
the . . . underlying claim is meritorious.”). This equitable test
is not at all dissimilar from the Rule 15 amendment inquiry.
As a result, some courts use the same analysis in determining
whether a Rule 15 delay is undue. See, e.g., Gregory v.
Mitchell, 634 F.2d 199, 203 (5th Cir. 1981).
49
    Jennings, 394 F.3d at 857 (internal quotation marks,
alterations, and citations omitted).
50
   See Cheney v. Anchor Glass Container Corp., 71 F.3d 848,
849–50 (11th Cir. 1996).




                               24
similar solicitude under Rule 15 as they would be under a
Rule with an explicit “excusable neglect” condition.

        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. 51 Nor is there indication
that Mullin could have obtained the CONFIDENTIAL
MULLIN documents before she did. And when the mistake
was discovered, counsel moved swiftly to bring it to the
Court’s attention; the delay prior to the filing of the formal
motion to amend was due to a scheduling order delaying




51
   See, e.g., Brief in Support of Motion for Reconsideration 3
(“In April 2013 plaintiff received initial discovery from the
State Defendants which was limited to the records already in
plaintiff’s possession.”), ECF No. 155-2.




                              25
consideration of amendment until reconsideration had been
granted or denied. 52

       For the above reasons, we disagree with the Magistrate
Judge that the delay attributable to the April 2013 discovery
was “inescapabl[y]” undue. 53 The record indicates that
counsel followed up on documents that appeared to be
missing; while counsel undoubtedly erred, with disastrous
consequences for her client, the Magistrate Judge did not
properly inquire as to whether the mistake was excusable in
context, or from when the delay should have been measured.
These considerations should be addressed on remand.

              2. Prejudice

      As set forth above, prejudice to the non-moving party
has long been the “touchstone” for the denial of leave to
amend. 54 Here, the State Defendants had argued that the

52
    On the other hand, Mullin’s attorney does not help her
cause by arguing on appeal, as she did before, that the
Attorney General should have simply told her that she was
missing something. The Attorney General does not appear, as
an ethical matter, to owe that enhanced degree of fairness to
opposing counsel, so long as it does not undermine the candor
required towards the tribunal. See N.J. R.P.C. 3.4; cf. also In
re Jemsek Clinic, P.A., 850 F.3d 150, 159 (4th Cir. 2017)
(“Under our adversarial system, litigants are not their
opponents’ keepers. They have no duty to help their
opponents maximize their recovery or prevent them from
losing their claims.”).
53
   JA 76.
54
   See Heyl & Patterson Int’l, Inc. v. F. D. Rich Hous. of V.I.,
Inc., 663 F.2d 419, 425 (3d Cir. 1981); United States v. 47




                              26
“numerous motions to amend” and other briefings had led
them to expend significant resources on the litigation, and
they further objected to Mullin’s “adding completely new
defendants at this late stage of the litigation.” 55 They asked
the Magistrate Judge to “intercede by denying [amendment]
and putting a stop to what seems like an endless cycle.” 56

        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.” 57 In the summary section, the Judge wrote that
“allowing the amendment at this point of the litigation, after
so much motion practice, would only cause further delay, to
the prejudice of the parties.” 58

       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”

Bottles, More or Less, Jenasol RJ Formula “60”, 320 F.2d
564, 573 (3d Cir. 1963).
55
   JA 76.
56
   JA 20.
57
   JA 77.
58
   JA 78.




                              27
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. 59

       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

59
   Cf. Joseph v. Elan Motorsports Techs. Racing Corp., 638
F.3d 555, 560 (7th Cir. 2011) (“Prejudice manufactured by a
defendant is not a ground for refusing relation back.”). The
multiple rounds of motions practice are also of uncertain
relevance to prejudice. Had Mullin sought leave to amend at
the moment when she obtained the April 2013 disclosures,
she would have interrupted pending Rule 12 motions then,
too.




                               28
voluntarily dropped from an amended complaint do not
remain in the case.” 60 Claims omitted from an amended
complaint remain in the case only if previously dismissed on
“legal grounds, rather than due to a lack of factual
specificity.” 61 Dropping parties and dropping claims can
therefore lead to abandonment later in the case and on appeal.
Thus, to the extent that the Magistrate Judge counted this
against Mullin with regard to prejudice or judicial economy,
it was error to do so; since the abandonment rule applies only
to claims or parties “voluntarily” dropped, allowing
amendment but conditioning it on omission of previously
dismissed claims or parties does not trigger the rule, and is
the preferred way to resolve the problem.

       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. 62 And because Mullin did
not appeal the dismissal of any defendants other than Dimler,
or the subsequent grant of summary judgment for the intake



60
   Palakovic, 854 F.3d at 221 n.13.
61
   Id. at 221.
62
   See Miller v. Admin. Office of the Courts, 448 F.3d 887,
898–99 (6th Cir. 2006) (explaining that the close of discovery
indicates prejudice).




                              29
nurse, any challenges relating to those decisions have now
been abandoned. 63

        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




63
  See Beazer E., Inc. v. Mead Corp., 525 F.3d 255, 263 (3d
Cir. 2008) (collecting cases); Cty. of Suffolk v. Stone &
Webster Eng’g Corp., 106 F.3d 1112, 1117 (2d Cir. 1997)
(when “a decision made at a previous stage of litigation” was
not “challenged in the ensuing appeal . . . [,] the parties are
deemed to have waived the right to challenge that decision”).




                              30
whether a delay was “undue.” 64 Considerations include
judicial efficiency and effective case management. 65

       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.” 66 The Magistrate Judge also referred to
the District Court’s work “in preparing a 40-page opinion,
which would be rendered moot if the amendment were
allowed to proceed.” 67

         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


64
   See, e.g., Little v. Liquid Air Corp., 952 F.2d 841, 846–47
(5th Cir. 1992) (affirming denial of leave to amend because
party’s delay imposed burdens both on the defendants and on
the court).
65
   See Jebaco, Inc. v. Harrah’s Operating Co., 587 F.3d 314,
322 (5th Cir. 2009).
66
   JA 77.
67
   JA 77.




                               31
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. 68 While courts are permitted to combine
the question of whether amendment should be granted with
the issue of whether the proposed amendment relates back, 69
the two inquiries are analytically distinct; relation back is a
test of the legal viability of the proposed amendment, and not
a discretionary factor weighing in favor of or against
amendment. 70 Thus, in certain cases, the “better approach” is
to treat leave to amend and relation back/timeliness
separately, determining first whether amendment should be
allowed under the discretionary factors, and only then passing

68
   See Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 193 (3d
Cir. 2001).
69
   See, e.g., Maersk, 434 F.3d at 204.
70
   See Garvin v. City of Phila., 354 F.3d 215, 222 (3d Cir.
2003).




                               32
on whether the complaint relates back or is otherwise
timely. 71

       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. 72 Generally, a constitutional claim under § 1983
accrues when the plaintiff knew or should have known of the
injury upon which the action is based. 73 A vulnerability-to-
suicide claim, which is simply a more specific articulation of
the Eighth Amendment rule that prison officials must not be
deliberately indifferent to a prisoner’s serious medical needs,
requires showing (1) the existence of a particular
vulnerability to suicide, (2) that a prison official knew or
should have known of the individual’s particularly
vulnerability, and (3) that the official acted with reckless or
deliberate indifference to the particular vulnerability. 74 The
accrual of the claim is not tied solely to the prisoner’s suicide


71
   Joseph v. Elan Motorsports Techs. Racing Corp., 638 F.3d
555, 558–59 (7th Cir. 2011); see also Glover v. FDIC, 698
F.3d 139, 144–48 (3d Cir. 2012) (on dismissal posture,
addressing relation back and timeliness separately).
72
   Montanez v. Sec’y Pa. Dep’t of Corr., 773 F.3d 472, 480
(3d Cir. 2014).
73
   Id.
74
  Palakovic v. Wetzel, 854 F.3d 209, 222, 223–24 (3d Cir.
2017).




                               33
itself, but also to the unconstitutional act by the prison official
that gives rise to the claim. 75

       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, 76 the facts of this case show



75
   Cf. Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (per
curiam) (explaining that the date of the act, not the date of
consequences, controls); Heard v. Sheahan, 253 F.3d 316,
318 (7th Cir. 2001) (Posner, J.).
76
   See United States v. Norwood, 602 F.3d 830, 837 (7th Cir.
2010) (“The discovery rule starts the statute of limitations
running only when the plaintiff learns that he’s been injured,
and by whom.”). We need not definitively determine whether
the timeliness of Mullin’s proposed amended complaint is
due to deferred accrual, deferred commencement of the
limitations period, or tolling. See William A. Graham Co. v.
Haughey, 646 F.3d 138, 147–50 (3d Cir. 2011) (discussing
imprecision between accrual and the running of the




                                34
that Mullin could not have learned of the particular nature of
this serious disregard of Robert’s mental state—or who was at
fault—until she had obtained the Report or its equivalent.
Mullin’s attempt to amend therefore fell well within the
applicable two-year limitations period if measured from the
April 2013 disclosure date. 77

          C. Summary

        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. 78 If the Court
nonetheless decides that the delay was undue or that the
defendants have articulated past or potential future prejudice,
the Court may wish to consider whether attaching conditions
to amendment, or limiting amendment to certain claims and
parties, suffices to mitigate those concerns. Finally, while we
have determined that the § 1983 claims against Officer X
would be timely if allowed to proceed, the District Court may
consider whether Rule 15 relation back—including the




limitations period, especially with regard to the discovery
rule).
77
   Dique, 603 F.3d at 185.
78
   See Jennings, 394 F.3d at 857.




                              35
application of the New Jersey fictitious party rule 79—or other
limitations doctrines suffice to render timely other claims
against other proposed parties.

III.         CONCLUSION

       For the foregoing reasons, we will affirm in part,
vacate in part, and remand.




79
  See DeRienzo v. Harvard Indus., 357 F.3d 348, 353–54 (3d
Cir. 2004) (addressing N.J. Ct. R. 4:25-4).




                              36
