Todd v. City of LaFayette, Alabama et al

Filing 95

OPINION AND ORDER directing that, by March 28, 2013, plaintiff Merrill Todd shall provide evidence on the following two questions: (1) When did plaintiff Todd first learn defendant Steve Smith's identity? (2) What efforts did plaintiff Todd and his attorney take to discover defendant Smith's identity?. Signed by Honorable Judge Myron H. Thompson on 3/14/13. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

MERRILL TODD,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF LAFAYETTE, et al., )
)
Defendants.
)

CIVIL ACTION NO.
3:12cv589-MHT
(WO)

OPINION AND ORDER
Relying on 42 U.S.C. § 1983, plaintiff Merrill Todd
brings this lawsuit naming as defendants the City of
LaFayette and police officers Jerome Bailey, Larry Clark,
Terry

Woods,

capacities.
Bailey,

and

Steve

Smith,

in

their

individual

The first count in his lawsuit contends that

Clark,

Woods,

and

Smith

violated

his

constitutional rights by using excessive force against
him; the second count asserts that the City of LaFayette
violated his constitutional rights by negligently hiring,
retaining,

and

failing

to

supervise

the

four

police

officers; and the final count is a state-law battery
claim against the four police officers.

Jurisdiction for

the federal claims is proper under 28 U.S.C. §§ 1331
(federal
state-law

question)
claim

is

and

1343

(civil

properly

before

rights),
the

and

court

the

under

supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
This case is currently before the court on Smith’s
motion for summary judgment based on the statute of
limitations.1

The court is unable to resolve this issue

on the record before it and will therefore require Todd
to provide additional evidence, as discussed in this
opinion.
Smith argues that the statute of limitations for
§ 1983 claims bars Todd from raising this claim.

While

Todd’s original complaint, filed July 6, 2012, was filed
within the statute of limitations for § 1983 claims, he
did not name Smith in that complaint; rather, he named
Smith in the amended complaint filed on August 30, 2012,
by which time, the two-year statute of limitations for

1. Smith also seeks summary judgment on grounds of
qualified immunity and insufficient evidence; these
contentions will be addressed in a later opinion.
2

his § 1983 claim had expired.

See Owens v. Okure, 488

U.S. 235 (1989) (holding that § 1983 claims look to the
general state-law limitations statute for personal injury
actions); 1975 Ala. Code § 6-2-38(l) (providing for a
two-year

statute

actions).

Todd

of

limitations

argues,

for

however,

personal-injury

that

the

amended

complaint relates back to the date he filed the original
complaint.

He has two arguments: (1) he was mistaken as

to Smith’s name and corrected the pleading upon learning
his name; and (2) state-law fictitious-party practice
allows relation-back.
The

first

situation.

argument

does

not

apply

to

Todd’s

Subpart (c)(1)(C) of Federal Rule of Civil

Procedure 15 allows relation-back of amendments naming a
new defendant, but only where there has been “a mistake
concerning the proper party’s identity.”
15(c)(1)(C)(ii).

Fed. R. Civ. P.

Todd explains that, because he was

unconscious during the assault, he did not know the names
of all the officers involved and did not learn them until

3

discovery began.

Ignorance of Smith’s name, however,
Wayne v. Jarvis, 197

does not qualify as a “mistake.”

F.3d 1098, 1103 (11th Cir. 1999) (“While we have stated
that we read the word ‘mistake’ in Rule 15(c) liberally,
we do not read the word ‘mistake’ to mean ‘lack of
knowledge.’”) (internal quotations and citation omitted))
overruled on other grounds, Manders v. Lee, 338 F.3d
1304, 1328 n.52 (11th Cir. 2003).

Because the reason

Todd did not plead Smith’s real name in his original
complaint was ignorance, not error, the relation-back
provision

of

subpart

(c)(1)(C)

of

Rule

15

is

inapplicable.
Todd’s second reason for asserting that the relationback principle saves his claim has more merit.
out

that

his

initial

complaint

named

ten

He points
fictitious

defendants, described as “the other officers who were at
the scene of the event described below and who either
personally participated or failed to intervene during the
commission of said event.”

Compl. (Doc. No. 1) at 2.

4

He

asks that the court construe his addition of Smith as a
substitution for one of the previously named fictitious
defendants.
The legal basis for Todd’s claim is subpart (c)(1)(A)
of Federal Rule of Civil Procedure 15.

This subpart

provides that an amendment relates back to the original
pleading

when

“the

law

that

provides

the

applicable

statute of limitations allows relation back.”
Civ. P. 15(c)(1)(A).

Fed. R.

In Saxton v. ACF Industries, 254

F.3d 959 (2001) (en banc), the Eleventh Circuit Court of
Appeals stated that this provision requires application
of state-law relation-back principles, including Alabama
fictitious-party practice, when state law supplies the
statute of limitations.

Id. at 960.

Though Saxton was

a diversity suit, this court has previously determined
that Saxton’s logic and the purpose of subpart (c)(1)(A)
support applying Saxton’s holding to federal-question
lawsuits

where

limitations.

state

law

provides

the

statute

of

Mann v. Darden, 630 F. Supp. 2d 1305, 1311

5

(2009)

(Thompson,

Committee

on

1991

J.);

see

also

Amendments

Notes

of

(“Whatever

may

Advisory
be

the

controlling body of limitations law, if that law affords
a more forgiving principle of relation back than the one
provided in this rule, it should be available to save the
claim.”).
Smith argues that, even if fictitious-party practice
is

allowed

in

some

federal-question

cases,

the

requirements for fictitious-party pleading set out in
Dean v. Barber, 951 F.2d 1210 (11th Cir. 1992), govern.
In Dean, the Eleventh Circuit held the district court
erred by denying the plaintiff’s motion to join a “John
Doe”

defendant

opportunity

to

before
learn

through discovery.

allowing

the

John

Id. at 1215.

the

Doe

plaintiff

defendant’s

an
name

In so ruling, it noted

the difference between “suing fictitious parties” and
“real parties sued under a fictitious name” and found
that, where the plaintiff had named “Chief Deputy of the
Jefferson County Jail John Doe” as a defendant, the name

6

was specific enough to comport with Federal Rule of Civil
Procedure 10's requirement that the pleading name the
party.

Id. at 1215 n.6.

Thus, the defendant could have

been served with the complaint, despite the use of the
“John Doe” title.

Id.

The complaint in Dean was filed in 1989, two years
before the addition of Federal Rule of Civil Procedure
15's provision on the relation-back of amendments.

Id.

at 1212; Fed. R. Civ. P. 15, Notes of Advisory Committee
on 1991 Amendments.

For this reason, Dean did not so

much as mention subpart (c)(1)(A) of Rule 15 and instead
considered the sufficiency of the complaint under Rule
10.

951 F.2d at 1215 n.6.

When Rule 15 was amended to

include subpart (c)(1)(A)’s relation-back provision, the
advisory committee specifically noted the provision was
“new.”

Fed. R. Civ. P. 15, Notes of Advisory Committee

on 1991 Amendments.

Though this court’s opinion in Mann

cited Dean, it did so to show one way plaintiffs could

7

proceed without knowing the true name of a defendant--not
the only way.

Mann, 630 F. Supp. 2d. at 1312.

Having determined that Todd was within his rights to
attempt to relate back the naming of Smith in his amended
complaint to the time he filed his original complaint,
the court must now look to whether he has satisfied the
state-law prerequisites for doing so.

As stated in

Saxton, under Alabama law a plaintiff can avoid the bar
of the statute of limitations if: “(1) the original
complaint adequately described the fictitious defendant;
(2) the original complaint stated a claim against the
fictitious defendant; (3) the plaintiff was ignorant of
the true identity of the defendant; and (4) the plaintiff
used

due

identity.”

diligence

to

discover

the

defendant’s

true

254 F.3d at 965 (citing Jones v. Resorcon,

604 So. 2d 370, 372-73 (Ala. 1992)).

Smith contends that

Todd has not satisfied the first, third, and fourth
requirements.

8

As to the first requirement, the description of
“other officers who were at the scene of the event
described below and who either personally participated or
failed to intervene during the commission of said event”
adequately describes Smith.

Compl. (Doc. No. 1) at 2.

The complaint explains that the officers are accused of
beating

Todd

objects.”

“with

Id. at 3.

their

fists,

boots,

and

other

Smith objects that Todd should have

described him, more pointedly, as “the police officer who
struck the Plaintiff with an automobile.”
No. 49) at 9.

Def. Br. (Doc.

Alabama law, however, does not require

this level of precision.

See, e.g., Ex Parte Griffin, 4

So. 3d. 430, 433 (Ala. 2008) (approving relation-back of
fictitiously named defendant where he was described as
“that person or persons who were the supervisor(s) of
[the plaintiff] on the occasion complained of in [the
plaintiff’s] complaint”).
As

to

the

third

and

fourth

requirements,

Smith

contends that there is no evidence Todd was ignorant of

9

his name, nor any evidence that he acted diligently to
discover it.

The court agrees that there is insufficient

evidence in the record for it to determine when Todd
learned Smith’s identity and how diligently he pursued
this knowledge.

Having reviewed the record, the court

notes that, during a conference call on August 13, 2012,
Todd mentioned the name Steve Smith and alerted the court
that he would be amending his complaint to include him.2
Thus, at the latest, Todd knew Smith’s identity as of
August 13, 2012.

In response to Smith’s motion to

dismiss, the only basis Todd provides the court for

2. Statements made during this conference call also
explain why Smith’s contention that the court’s August
14, 2012, order precluded the amendment naming Smith is
incorrect.
See Order (Doc. No. 20).
During that
conference call, Todd specified, in response to a motion
for a more definite statement, that the excessive-force
and state-law battery claims related solely to the
individual defendants and that the negligent hiring, etc.
claims related solely to LaFayette.
The order
memorialized Todd’s intention to exclude the city from
the excessive-force and battery claims; it did not
preclude him from amending the complaint to include
additional individuals as defendants for those claims.
See id. (“Based upon the representations made on the
record on August 13, 2012....”).
10

finding he diligently pursued Smith’s identity is that
the “amended complaint was filed before the City of
LaFayette named him as the person driving the vehicle
that struck Todd in its initial disclosures (amended
complaint was filed on 8/30/2012 and disclosures were
served on Plaintiff on 9/14/2012).”
48)

at

2

(emphasis

in

Pl. Br. (Doc. No.

original).

While

this

parenthetical explanation tells the court that Todd did
not wait until receiving discovery from the defendants
before amending his complaint, it does nothing to answer
the relevant questions: what did Todd do to learn Smith’s
identity and when he did he discover it?
These are simple questions that Todd is uniquely
positioned to answer.
opportunity to do so.

The court will provide him an
See Fed. R. Civ. P. 56(e)(1) (“If

a party fails to properly support an assertion of fact...
the court may... give an opportunity to properly support
or address the fact.”).

Todd must come forward with

evidence--not just argument–-showing his ignorance of

11

Smith’s identity and diligence in pursuing it or be
barred by the statute of limitations from pursuing his
§ 1983 claim against Smith.
Smith does not argue that the statute of limitations
forecloses the state-law claim against him, and the court
clarifies that Todd’s state-law claim is not implicated
in the foregoing discussion.

See 1975 Ala. Code § 6-2-

34(1) (establishing a six-year statute of limitations for
any trespass to person or liberty, including assault and
battery).
***
Accordingly, it is ORDERED that, by March 28, 2013,
plaintiff Merrill Todd shall provide evidence on the
following two questions:
(1) When did plaintiff Todd first learn defendant
Steve Smith’s identity?
(2) What efforts did plaintiff Todd and his attorney
take to discover defendant Smith’s identity?
DONE, this the 14th day of March, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE