IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
December 20, 2012
POLICE OFFICER JOHN DOE I, ET AL.,
The opinion of the court was delivered by: Timothy R. Rice U.S. Magistrate Judge
MEMORANDUM OPINION TIMOTHY R. RICE December 20, 2012 U.S. MAGISTRATE JUDGE
Plaintiff Keturah Anderson seeks to amend her Complaint more than one year after it was filed to add four police officers as defendants. Because the statutes of limitation on her claims have expired and the claims cannot relate back to the date her Complaint was filed, her proposed amendments are futile. I therefore deny her request to amend and dismiss the case.
On September 30, 2011, hours before the statutes of limitation on her claims expired,
Anderson filed a Complaint against four "John Doe" Philadelphia police officers and the City of Philadelphia.*fn1 See Compl. (doc. 1). She alleged the unnamed officers violated her state and federal constitutional rights to be free from excessive force and committed assault and battery during her September 30, 2009 arrest. See id. ¶¶ 24-32. She also alleged the City had a policy, custom, or practice that allowed the use of excessive force by the police. See id. ¶¶ 33-37.
Anderson served the Complaint on the City almost three months later, on January 5, 2012. See Aff. of Service (doc. 2). The City Solicitor filed an Answer with affirmative defenses for the City on February 4, 2012. It denied certain allegations about the John Does, stating they "are addressed to defendants other than the Answering Defendants." See Answer (doc. 3), ¶¶ 3-10. It also denied allegations regarding the police officers' actions and provided an alternative version of the underlying events. See id. ¶¶ 13-23. Most of the remaining allegations were denied as legal conclusions or for lack of information. See id. ¶¶ 27-37.
In April and May 2012, I entered scheduling orders directing that
discovery end by July 27, 2012, dispositive motions be filed by
September 14, 2012, and set the trial for December 3, 2012.*fn2
On September 6, 2012, I extended the discovery deadline to
September 21, 2012 at the parties' request.
On October 15, 2012, the City sought summary judgment, claiming there was no evidence showing it had a pattern or practice of engaging in excessive force. See City's Bf. in Supp. of Mot. for Summ. J. (doc. 17), at 6-7. The City also noted Anderson had not yet named or served the John Doe defendants and the statutes of limitation had expired on her claims. See id. at 5 n.1. Anderson agreed to "voluntarily withdraw" her claim against the City, but asserted her claims against the John Does "should be allowed to proceed to a jury." Anderson's Bf. in Support of Resp. to Mot. for Summ. J. (doc. 18), at 5. She noted she should be permitted to amend her Complaint to name the actual police officers, with the amendments relating back to her Complaint filing date. See id. at 5 n.1.
I granted summary judgment for the City and directed Anderson to seek leave to amend her Complaint to identify the John Doe defendants and address whether the amendments should relate back to the Complaint's filing date. Anderson filed her motion on October 26, 2012, attaching a proposed amended complaint naming the four actual police officers as defendants.*fn3
See Mot. for Leave to Amend (doc. 22). The City opposed Anderson's
motion, and I heard oral argument on November 19, 2012.*fn4
On December 19, 2012, I held an evidentiary hearing during
which former counsel for the City and two of the four actual police
officers testified about their communication regarding Anderson's
II. Legal Standard
A party seeking to amend her complaint more than twenty-one days after a responsive pleadings has been filed may do so "only by leave of court or by written consent of the adverse party." Fed. R. Civ. P. 15(a). The court "should freely give leave [to amend] when justice so requires," id., meaning amendments should be allowed unless there has been "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or the] futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962); see also Coventry v. U.S. Steel Corp., 856 F.2d 514, 519 (3d Cir. 1988).
Leave to amend is futile if the proposed amendments are barred by the statutes of limitation. See Garvin, 354 F.3d at 222. Excessive force claims under the United States and Pennsylvania Constitutions must be brought within two years of the alleged wrongful act. See Owens v. Okure, 488 U.S. 235, 249-50 (1989) (section 1983 claims are subject to state statutes of limitation for personal injury actions); 42 Pa. C.S. § 5524(7) (two-year limitation period for action seeking personal injury damages). A two-year statute of limitation period likewise applies to assault and battery claims under Pennsylvania law. See 42 Pa. C.S. § 5524(1).
Using "John Doe" in place of an actual defendant will not toll the statutes of limitation. See Garvin, 354 F.3d at 220. Amendments that replace "John Doe" defendants with the actual defendant, however, may relate back to the date the complaint was filed if a three-part test in Rule 15(c)(1)(C) is satisfied: (1) the amendments assert a claim that arose out of the conduct or occurrence set out in the original complaint; (2) within the time period provided by Rule 4(m), the proposed new party "received such notice of the action that it will not be prejudiced in defending on the merits;" and (3) within that same time period, the proposed new party "knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Fed. R. Civ. P. 15(c)(1)(C); see also Garvin, 354 F.3d at 222.
Rule 15(c)(1)(C)'s notice requirement is satisfied if the proposed new party had actual or constructive notice of the lawsuit within the period provided by Rule 4(m). See Singletary v. Dep't of Corrections, 266 F.3d 186, 195 (3d Cir. 2001); Garvin, 354 F.3d at 222-23. Constructive notice can be demonstrated by showing: (1) evidence of a shared attorney relationship between a party named in the original complaint and the party sought to be added, and (2) some communication or relationship between the shared attorney and the John Doe defendant during the period provided by Rule 4(m).*fn6 See Singletary, 266 F.3d at 196; Garvin, 354 F.3d at 225.
Rule 4(m) generally requires that a complaint be served on a defendant within 120 days of its filing. The court must extend this period for an appropriate time "if the plaintiff shows good cause for the failure." Fed. R. Civ. P. 4(m); see also MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1096-97 (3d Cir. 1995). Absent good cause, the court has discretion to extend the time for service. See MCI Telecomms. Corp., 71 F.3d at 1098 (citing Petrucelli v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995)).
The pivotal inquiry in deciding Anderson's motion for leave to amend is whether her amendments are futile because they are barred by the statutes of limitation.*fn7 The limitation periods on Anderson's constitutional and assault and battery claims against the officers expired on September 30, 2011, the day she filed her Complaint.*fn8 These periods could not be tolled because she named "John Does" as defendants. See Garvin, 354 F.3d at 220. Anderson's claims against the officers, however, may relate back to the date she filed her Complaint if she can satisfy Rule 15(c)(1)(C).
The first element of the Rule 15(c)(1)(C) test is undisputed. The proposed amendments against the actual officers "arose out of the conduct . . . or occurrence set out . . . in the original [complaint]," namely the officers' alleged actions during Anderson's September 30, 2009 arrest. See Fed. R. Civ. P. 15(c)(1)(B); Compl. ¶¶ 1-23.
The second element, which requires that Anderson show the actual officers had notice of her lawsuit within the time provided by Rule 4(m), is hotly contested. See Singletary, 266 F.3d at 195; Garvin, 354 F.3d at 222-23. Anderson maintains the actual officers had notice of her lawsuit because they share an attorney with the City. She claims the City Solicitor has represented the actual officers "every step of the way" by: (1) denying allegations against the officers in the City's Answer and setting forth their version of the facts; (2) producing the officers' statements in police internal affairs and investigative reports as part of discovery; (3) stating that the officers named in the City's initial disclosures can be contacted through the City Solicitor; and (4) stating that the City Solicitor is counsel for Police Officer Michelle Glenn during Glenn's September 28, 2012 deposition. See Anderson's Bf., at 8.
Notice can be imputed on the officers under the shared attorney method only if Anderson shows there was a communication or shared attorney relationship between City Solicitor and the officers about her lawsuit "within the period provided by Rule 4(m)." Fed. R. Civ. P. 15(c)(1)(C); see also Singletary, 266 F.3d at 196; Garvin, 354 F.3d at 225. Anderson has not established that there was any such communication or relationship during Rule 4(m)'s general 120-day service period, which expired on January 28, 2012. The City Solicitor did not even enter its appearance for the City until filing the City's Answer one week after that date, on February 4, 2012. Anderson argues that the City Solicitor must have communicated with the four officers about the lawsuit before filing the City's Answer because it included information that could have come only from the four officers.*fn9 However, former counsel for the City and the four officers swore there was no such communication.*fn10 Counsel testified that she obtained the information within the Complaint solely from police department files and I find that testimony credible.
Anderson also has argued that she should be entitled to show that there was a communication or shared attorney relationship between the City Solicitor and the four officers beyond Rule 4(m)'s general 120-day period because she has "good cause" for extending that period under the rule.*fn11 See Reply Bf., at 4-5; see also Fed. R. Civ. P. 4(m). However, even if an extension under Rule 4(m) were to allow more time for establishing notice under Rule 15(c)(1)(C),*fn12 Anderson is not entitled to the indefinite extension she is seeking because she fails to show the requisite "good cause."
"Good cause" under Rule 4(m) depends on: (1) "the reasonableness of plaintiff's efforts to serve" the defendants; (2) prejudice to the defendant by the lack of timely service; and (3) whether the plaintiff moved for an enlargement of time to serve. See MCI Telecomms. Corp., 71 F.3d 1086, 1097 (3d Cir. 1995) (citing United States v. Nuttall, No. 87-541-JLL, 122 F.R.D. 163, 166-67 (D. Del. 1998)). Although "prejudice may tip the 'good cause' scale, the primary focus is on the plaintiff's reasons for not complying with the time limit in the first place." Id.
Anderson has made no attempt to serve the actual officers or obtain an extension of Rule 4(m)'s 120-day service period. She argues she was precluded from doing so because she did not know the officers' identities. She claims: "[t]he City did not provide . . . the names of the officers present at the time of the assault until February 23, 2012, well after the statutory time for service of these officers." Reply Bf., at 5. Yet, Anderson took no action to compel the City to provide her with this information earlier.*fn13 See Garvin, 354 F.3d at 222 n.6 (plaintiff, who filed additional time resulting from any extension ordered by the court pursuant to [Rule 4(m)], as may be granted, for example, if the defendant is a fugitive from service of the summons.
Fed. R. Civ. P. 15 advisory committee note (1991 Amendment). Courts, however, are divided on whether a Rule 4(m) extension also creates a longer period under Rule 15(c)(1)(C). Compare Arthur v. Maersk, Inc., 434 F.3d 196, 207 (3d Cir. 2006) (notice must be had "within 120 days of institution of the action"); Singletary, 266 F.3d at 194 (same); Garvin, 354 F.3d at 220 (same); E.H. v. Sch. Dist. of Phila., No. 08-2392, 2009 WL 4911936, *4 (E.D. Pa. Dec. 21, 2009) (declining to "engage in a 'good cause' analysis because [Rule 15(c)(1)(C)] says nothing about a 'good cause' exception"), with Green v. Robinson, 112 F. App'x 165, (3d Cir. 2004) (considering whether plaintiff had good cause for not serving defendant in 120-day period as part of Rule 15(c)(1)(C) analysis), Gipson v. Wells Fargo Corp., 382 F. Supp. 2d 116, 122 (D.D.C. 2005) (applying extended Rule 4(m) period to Rule 15(c)(1)(C) analysis), Wilke v. Bob's Route 53 Shell Station, 36 F. Supp. 2d 1068, 1073 (N.D. Il. 1999) (same).
her action near the end of the statute of limitation period "could have attempted to expedite the matter by filing a motion to compel the City to provide its initial disclosures"); see also Fed. R. Civ. P. 27 (allowing pre-complaint discovery). Even after receiving the officers' names in February 2012, Anderson did not timely move to amend her Complaint to add the actual officers as defendants or seek an extension of the service period. Rather, she waited another eight months to seek leave to amend, doing so only when ordered.
Anderson claims she needed to depose the officers to obtain sufficient information to assert claims against them and, because of scheduling issues, she did not have the opportunity to depose an officer until September 28, 2012. Anderson, however, never sought my assistance in resolving these issues, even though the statutes of limitation on her claims had expired, Rule 4(m)'s general 120-day service period had expired, and the discovery deadline and December 3, 2012 trial date loomed.
Given these circumstances -- and because I find that the actual officers would be prejudiced if added as parties and served now -- more than three years after the alleged incident and well after the discovery period and the dispositive motion deadline have passed*fn14 -- Anderson has not shown "good cause" for an extension of Rule 4(m)'s 120-day service period.*fn15 See MCI Telecomms. Corp, 71 F.3d at 1097-98 (district court abused its discretion in finding good cause for an extension when plaintiff never moved for an extension of time and failed to explain why it waited more than three months to serve the defendant after obtaining the defendant's address); Gonzalez, 268 F.R.D. at 527 ("[T]he more stale a claim becomes, the more likely it is that a defendant may become prejudiced by the lack of timely service.").
Because Anderson cannot show that the actual officers had any notice of her lawsuit within Rule 4(m)'s 120-day service period or that she is entitled to an extension of this period, she cannot satisfy the second element of Rule 15(c)(1)(C)'s relation-back test. I do not need to consider the test's third element. See Garvin, 354 F.3d at 228 n.18. Anderson's amendments naming the actual officers must be denied as futile because they are barred by the statutes of limitation. See Garvin, 354 F.3d at 222.*fn16 Her case is dismissed.
An appropriate order follows.
BY THE COURT:
Timothy R. Rice