Wilson v. Doss et al
ORDER directing that: (1) the City Defendants' 125 MOTION for Leave to File Third-Party Complaint is DENIED; and (2) plaintiff's MOTION to Strike Defendants' Third-Party Complaint, or in the alternative, plaintiff's MOTION to Sever or try separately is DENIED as MOOT. Signed by Honorable Judge Mark E. Fuller on 11/9/12. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
MARGARET WILSON, as Guardian and
next friend to J.W., a minor child,
BILLY GENE DOSS, et al.,
CASE NO. 2:09-cv-21-MEF
(WO – Do Not Publish)
Before the Court is Defendants City of Montgomery, Art Baylor, William E. Herman,
Jerry McQueen, Terry Reid, and John Carnell’s (collectively, “City Defendants”) Motion
for Leave to File Third-Party Complaint, (Doc. #125), Plaintiff’s Response in Opposition
and Motion to Strike Defendants’ Third-Party Complaint, or in the Alternative, Plaintiff’s
Motion to Sever or Try Separately (Doc. #137), and the City Defendants’ Reply to Plaintiff’s
Opposition (Doc. #141). During a status conference held on November 7, 2012, the Court
heard oral argument on these motions. Upon consideration of the parties’ briefs, the
arguments of counsel, and the record as a whole, the Court finds that the City Defendants’
Motion for Leave to File Third-Party Complaint is due to be denied.
This case, which involves various state and federal claims arising out of the alleged
sexual abuse of a minor, J.W., by Defendant and former City of Montgomery School Bureau
Officer Billy Gene Doss (“Doss”), is presently set for a jury trial on December 10, 2012.
Plaintiff filed her original complaint,1 which contained five state law claims and one federal
law claim under 42 U.S.C. § 1983, in the Circuit Court of Montgomery County, Alabama
on December 8, 2008. (Doc. #1-4.) Defendants removed this case to federal court on
January 7, 2009. (Doc. #1.) On August 14, 2009, this Court denied Plaintiff’s motion to
remand the state law claims to state court. (Doc. #19.) In denying the motion to remand,
this Court found the removal of both state and federal claims appropriate under 28 U.S.C.
§ 1441(b), because the federal and state causes of action were asserted as a result of a single
wrong—Doss’s improper sexual conduct with J.W. (Doc. #19, at 7) (citing Am. Fire & Cas.
Co. v. Finn, 341 U.S. 6, 14 (1951); In re City of Mobile, 75 F.3d 605, 608 (11th Cir. 1996)).
On October 24, 2012, the City Defendants moved this Court for leave to file a third-party
complaint pursuant to Rule 14(a)(1) of the Federal Rules of Civil Procedure against Linda
Holmberg (“Holmberg”) and American Behavioral Benefits Manager, Inc. (“American
II. RELEVANT FACTS
When the claims in this case arose, Holmberg was a Licensed Professional Counselor
employed by American Behavioral. In January 2006, Holmberg provided counseling to
Doss through the City of Montgomery’s Employee Assistance Program (“EAP”); Doss was
referred to Holmberg through the EAP for stress and performance issues.
During their counseling sessions, Doss told Holmberg that he wanted to hurt the
Plaintiff amended her complaint on April 28, 2010, to add Terry W. Reid and John Carnell
as defendants. (Doc. #46.)
children in his work environment. (Holmberg Dep., 40:4, Doc. #115-19). On January 9,
2006, Holmberg made a recommendation to the City Defendants that Doss “be put on desk
duty away from his regular high stress environment for approximately two to three months”
and continue his weekly therapy sessions. (Pl.’s Ex. A, Doc. #137-1; Holmberg Dep.,
42:22–43:6, Doc. #115-19.) After receiving Holmberg’s recommendation of desk duty for
Doss, Defendant Sergeant William Herman (“Herman”), who was one of Doss’s supervisors,
called Holmberg back at the instruction of Captain Jerry McQueen (“McQueen”), to inform
her that a psychiatrist would need to make the determination of whether light or desk duty
was necessary for Doss. (Herman Dep., 108:20–109:10, Doc. #115-7.) On that phone call,
Herman told Holmberg that there were no desk jobs available for Doss, and that absent a
recommendation of full duty from Holmberg, Doss would likely have to be placed on
administrative leave with pay for as long as he had leave, and without pay once his leave
expired. (Herman Dep., 106:18–108:23, Doc. #115-7.) Holmberg admitted that she felt
pressure from Herman, McQueen, and Terry Reid (“Reid”) to get Doss back to work.
(Holmberg Dep., 57:10–18 & 59:16–22, Doc. #115-20.)
At Holmberg’s next meeting with Doss on January 12, 2006, Doss indicated to
Holmberg that if he was placed on administrative leave, he would not be able to work his
second job and would have a hard time paying his bills. (Def.’s Ex. 8A, at 14, Doc. #11522.) On January 12, 2006, Holmberg submitted a second recommendation to the City
Defendants that Doss be placed on full duty. (Pl.’s Ex. B, Doc. #137-2; Holmberg Dep.,
60:4–10, Doc. #115-20.)
Federal Rule of Civil Procedure 14(a)(1) provides that “[a] defending party may, as
third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable
to it for all or part of the claim against it.” However, a defending party must obtain leave
from the court to file a third-party complaint more than fourteen days after serving its
original answer. Fed. R. Civ. P. 14(a)(1).
Although the Court recognizes the liberal spirit of Rule 14, it is also aware that
“whether a third-party defendant may be impleaded under Rule 14 continues to be a question
addressed to the sound discretion of the trial court.” Wright & Miller, Federal Practice and
Procedure: Civil, § 1443 (3d ed. 2010); see also Southern. Ry. Co. v. Fox, 339 F.2d 560,
563–64 (5th Cir. 1964)2 (“[I]f it appears that in the exercise of its discretion the trial court
acted on an erroneous theory (in dismissing the third-party complaint), then the case must
be referred back to that court for further consideration based upon the proper rules.”). In its
brief in opposition, Plaintiff directed the Court to the factors listed in Oklahoma ex rel.
Edmondson v. Tyson Foods, Inc., 237 F.R.D. 679, 681–82 (N.D. Okla. 2006), which this
Court finds instructive in reaching its decision. These factors include: (1) prejudice to the
parties; (2) the status of discovery; (3) the defending party’s delay in seeking leave to file
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. Nov. 3, 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down
prior to the close of business on September 30, 1981.
a third-party complaint; (4) judicial economy or efficiency; (5) avoidance of delay in the
underlying trial; and (6) whether discovery favors separate trials. Id.
In support of their request to file a third-party complaint against Holmberg and
American Behavioral, the City Defendants argue that Holmberg acted with deliberate
indifference to a known risk of harm to J.W. by submitting her second recommendation to
the City Defendants, which she knew would be relied upon by the City Defendants in
determining Doss’s fitness for full duty in the school district. The City Defendants contend
that they had no knowledge of Holmberg’s appreciation for the risk that Doss presented to
minors until Plaintiff’s counsel deposed her on September 6, 2012. The City Defendants
further contend they had no knowledge that Holmberg “falsified” her second assessment of
Doss’s fitness for duty until Holmberg’s deposition on September 6, 2012.
Counsel for the City Defendants asserted at the November 7, 2012 status conference
that very little additional discovery would be needed if this Court were to grant them leave
to file a third-party complaint against Holmberg and American Behavioral, since Holmberg
has already participated in depositions in her capacity as a fact witness, and thus the trial
continuance would be minimal. In sum, the City Defendants assert that judicial resources
would be saved if this Court either (1) grants them leave to file a third-party complaint and
continues the trial or (2) grants their motion and stays or severs their claim against Holmberg
and American Behavioral and tries that claim separately from Plaintiff’s claims.
Plaintiff argues in opposition that “the benefits of allowing the [City Defendants’
third-party] claim to proceed is strongly outweighed by the prejudice to the Plaintiff at this
late stage in the litigation process.” (Doc. #137, at 2.) Plaintiff points out that this trial date
was set specially so that J.W. could be present for the trial before deploying for a tour of
military service. Plaintiff further argues that it is “disingenuous at best for the [City]
Defendants to . . . assert to the Court that they did not have any knowledge of these issues
when the original complaint was filed” given that the City Defendants received two separate
contradictory reports from Holmberg within six days time. (Doc. #137, at 3.)
The Court finds that the original action would be unduly prejudiced if trial in this
case, set specially to accommodate J.W.’s military deployment schedule, is delayed any
further. The Court disagrees with the City Defendants that judicial resources would be
conserved if it is allowed to file a third-party complaint at this late stage in the litigation
process. Although it is true that Holmberg has participated in discovery up to this point, she
has only done so in her capacity as a fact witness, not as a party-defendant. Adding claims
against Holmberg and American Behavioral at this stage in the proceedings would require
continuing the trial and would unnecessarily complicate the discovery in this case.
Moreover, the Court finds that the City Defendants will not be unduly prejudiced by
this Court’s decision to deny leave to file a third-party complaint against Holmberg and
American Behavioral. The City Defendants will be able to seek indemnification from
Holmberg and American Behavioral in a separate state court action in the event Plaintiff
prevails at trial.
For the foregoing reasons, it is hereby ORDERED that:
(1) The City Defendants’ Motion for Leave to File Third-Party Complaint (Doc.
#125) is DENIED; and
(2) Plaintiff’s Motion to Strike Defendants’ Third-Party Complaint, or in the
Alternative, Plaintiff’s Motion to Sever or Try Separately (Doc. #137) is DENIED as
DONE this the 9th day of November, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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