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
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 ...