Jordan v Masterson et al

Filing 45

ORDER denying 35 Motion to Amend/Correct. Signed by Judge Holly B. Fitzsimmons on 8/2/2011. (Garcia, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

VICTOR L. JORDAN, SR.,
Plaintiff,
v.
JAMES MASTERSON, et al.,
Defendants.

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CASE NO. 3:10cv1293(HBF)

RULING ON PENDING MOTIONS
The plaintiff filed this action in August 2010.

He named as

defendants Deputy U.S. Marshal James Masterson, Task Force
Officers Jerry Pinto and Robert Martin, Detectives Orlando Rivera
and David McKnight, Sergeant Michael Ponzillo, Lieutenant Patrick
Deely and Patrolmen Brian Distefano and Timothy Brown.

Pending

are the plaintiff’s motions to cite in new parties, to compel and
for extension of time to conduct discovery.

For the reasons that

follow, all three motions are denied.
I.

Motion to Cite in New Parties
The plaintiff seeks leave to amend his complaint to add as

defendants the persons occupying the following positions on April
16, 2008:

Mayor, Police Commissioner and Chief of Police for the

city of Waterbury and Supervisor of the U.S. Marshal Violent
Fugitive Task Force.

The plaintiff alleges that these defendants

failed to enforce proper training of their subordinate officers,
agents or deputies and failed to ensure the safety, security and
well-being of all individuals with whom their subordinate

officers, agents or deputies came into contact.
The plaintiff may amend his complaint once, as of right,
until twenty-one days after the defendants respond to the
complaint.

Fed. R. Civ. P. 15(a)(1).

right has long passed.

The time to amend as of

Defendants Masterson, Martin and Pinto

(“the federal defendant”) filed their answer on November 4, 2010,
and defendants Brown, Deely, Distefano, McKnight, Ponzillo and
Rivera (“the Waterbury defendants”) filed their answer on
November 29, 2010.
“Although leave to amend a pleading under the Federal Rules
of Civil Procedure ‘shall be freely given when justice so
requires,’ such leave will be denied when an amendment is offered
in bad faith, would cause undue delay or prejudice, or would be
futile.”

Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1198 (2d

Cir. 1989) (citing Foman v. Davis, 371 U .S. 178, 182 (1962)).
While motions to amend generally are considered under Rule
15(a), Fed. R. Civ. P., motions to add new parties are considered
under Rule 21.

See Momentum Luggage & Leisure Bags v. Jansport,

Inc., No. 00 Civ. 7909, 2001 WL 58000, at *1 (S.D.N.Y. Jan. 23,
2001).

Under Rule 21, a new party may be added to an action “at

any time, on just terms.”

When reviewing a request to add a

party, the court applies the same standard used to review a
request to amend under Rule 15.

Soler v. G & U, Inc.. 86 F.R.D.

524, 528 (S.D.N.Y. 1980).

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The most important factor in considering whether to allow
amendment under Rule 15(a) is whether the opposing party would be
prejudiced by the proposed amendment.
York, 514 F.3d 184, 191 (2d Cir. 2008).

Ruotolo v. City of New
This inquiry is “often

intertwined” with the consideration of whether there was undue
delay on the part of the movant as a long delay is more likely to
be found prejudicial.

Evans v. Syracuse City School Dist., 704

F.2d 44, 47 (2d Cir. 1983).

Where a party seeks to add an

additional claim, evaluation of prejudice requires the court to
consider whether the new claim would “(i) require the opponent to
expend significant additional resources to conduct discovery and
prepare for trial; (ii) significantly delay the resolution of the
dispute; or (iii) prevent the plaintiff from bringing a timely
action in another jurisdiction.”

Block v. First Blood Assocs.,

988 F.2d 344, 350 (2d Cir. 1993).

Unless the defendants

demonstrate prejudice, a satisfactorily explained lengthy delay
is insufficient to deny leave to amend.

See Richardson

Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir.
1987) (reviewing cases and holding that an eighteen month delay
between filing of answer and motion for leave to file amended
answer did not constitute undue delay absent a finding of undue
prejudice to plaintiffs).
The plaintiff filed his complaint in August 2010.

The

initial scheduling order required that discovery be concluded by

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April 11, 2011.

When the plaintiff was taken to court on a state

matter and failed to appear for his deposition, the court
extended the discovery deadline until June 30, 2011.
#30.

See Doc.

On May 19, 2011, the court extended the dispositive motion

deadline until July 31, 2011, and specified that the deadline
would not be further extended.

See Doc. #31.

This proscription

was repeated during a telephonic status conference on June 15,
2011.

See Doc. #34.

On June 27, 2011, three days before the close of discovery,
the plaintiff filed his motion to add four John Doe defendants.
The plaintiff did not explain why he waited so long to file his
motion.

In response to the defendants’ objections, the plaintiff

now states that he could not file his motion sooner because he
was waiting for responses to interrogatories.

The plaintiff

acknowledged during the telephone conference that he did not
serve his interrogatories until May 26, 2011, barely one month
before the conclusion of discovery.

He does not explain why he

waited so long to serve his interrogatories and does not indicate
what information he sought that prevented him from filing his
motion sooner.

The court finds disingenuous the plaintiff’s

assertion that he could not file his motion sooner because he was
relying on receiving the defendants’ responses “in a reasonable
time.”

See Pl.’s Reply, Doc. #38, at 2.

Both the federal and Waterbury defendants argue that they

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will be prejudiced if the motion to add parties is granted.
Adding new defendants will necessarily delay resolution of this
case.

The new defendants must be identified and served.

The

claims against them are entirely different from the claims that
the existing defendants used excessive force in effecting the
plaintiff’s arrest and denied him medical attention.

The

existing claims all relate to one incident occurring on one day.
The claims against the new defendants are not related to this
incident.

The plaintiff generally alleges that the new

defendants failed to train the current defendants and did not
protect the safety and security of persons like the plaintiff.
The new claims relate to activities and practices that occurred
prior to the plaintiff’s arrest.

Because the claims against the

new defendants are different from the claims against the current
defendants, the parties will need to expend significant resources
conducting additional discovery and preparing for trial.

This

delay and increased expense demonstrates prejudice to the
defendants.
Finally, the court concludes that amendment to add the new
defendants would be futile.

The plaintiff fails to provide the

name of any proposed defendant.

The plaintiff is proceeding in

forma pauperis in this action and, therefore, is entitled to have
service effected by the U.S. Marshal Service.

The Marshal cannot

effect service without the name and current work address of each

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defendant.

Providing this information is the responsibility of

the plaintiff.

Shirback v. Lantz, No. 3:06cv995(JCH), 2008 WL

878939, at *3 (D. Conn. Mar. 28, 2008). As there are no new
defendants who can be served at this time, amendment would be
futile.
Further, even if the plaintiff had provided the names of the
proposed defendants, he has not stated a cognizable federal
claim.

The plaintiff states in his motion and reply that the

John Does were negligent because they failed to train and
supervise the named defendants and failed to take action to
protect persons like himself.
The Waterbury defendants are sued pursuant to 42 U.S.C. §
1983, which governs suits against state actors for violation of
federally protected rights.

The federal defendants are sued

under Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971), which provides a federal
constitutional counterpart to section 1983.

Claims of negligence

are not cognizable under section 1983 or Bivens.

See Hayes v.

New York City Dep’t of Corrections, 84 F.3d 614, 620 (2d Cir.
1996) and Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995)
(because Bivens action is nonstatutory federal counterpart of
section 1983, courts looks to section 1983 cases for applicable
law).

Thus, as set forth in the motion to amend, the plaintiff

has not asserted a cognizable claim against the John Doe

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defendants.
In addition, there is a three-year limitations periods for
filing actions under section 1983 and Bivens.

See Walker v.

Jastremski, 430 F.3d 560, 562 (2d Cir. 2005) (Bivens); Lounsbury
v. Jeffries, 25 F.3d 131, 133 (2d Cir. 1994) (section 1983).
plaintiff was arrested on April 16, 2008.
his claims at that time.
16, 2011.

The

He was aware of all of

The limitations period expired on April

The plaintiff did not file his motion to amend until

June 27, 2011, over two months beyond the limitations period.
Thus, the claims against the John Doe defendants are untimely.
Rule 15(c)(1)(B) permits an amendment to relate back to the
date of the original pleading if the amendment asserts a claim
that arises out of the conduct set forth in the original
pleading.

That provision is not applicable here.

The plaintiff’s claims against the John Doe defendants, that
they failed to train their subordinates and failed to ensure the
safety and security of persons with whom their subordinates came
into contact, are distinct from the claims of excessive force and
denial of medical care included in the complaint.

All evidence

relating to the claims against the John Doe defendants
necessarily concerns events and decisions occurring long before
the date of the plaintiff’s arrest.

Thus, the claims would not

relate back to the date of the complaint.
The defendants have demonstrated that resolution of this

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matter will be delayed and they will suffer prejudice if the
motion is granted.
would be futile.

The court also has determined that amendment
For these reasons, the plaintiff’s motion to

add defendants is denied.

See Dougherty v. Town of North

Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)
(motion to amend may be denied as futile if motion would not
withstand motion to dismiss); Andrews v. City of Hartford Human
Relations Com’n, No. 3:04CV1474(SRU), 2005 WL 2416106, at *6 (D.
Conn. Sept. 30, 2005) (denying leave to add a defendants where
claims would be time-barred).
II.

Motion for Order Compelling Disclosure and Discovery
The plaintiff has filed a motion to compel the federal

defendants to respond to Interrogatory 6 because their objection
is without merit.
Rule 37, D. Conn. L. Civ. R., requires that, before filing a
motion to compel, the moving party must confer with opposing
counsel in a good faith effort to resolve the dispute.

The

purpose of this rule is to encourage the parties to resolve
discovery disputes without court intervention.

Hanton v. Price,

No. 3:04cv473(CFD), 2006 WL 581204, at *1 (D. Conn. Mar. 8,
2006).

If discussions are not successful, the party moving to

compel must submit an affidavit certifying the attempted
resolution and specifying which issues were resolved and which
remain.

The plaintiff states only that he disagrees with the

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federal

defendants’ objection to one interrogatory.

He does

not indicate that he made any attempts to resolve his dispute nor
has he provided the required affidavit.
In addition, Rule 37(b)1 requires that any discovery motion
be accompanied by a memorandum of law “contain[ing] a concise
statement of the nature of the case and a specific verbatim
listing of each of the items of discovery sought or opposed, and
immediately following each specification shall set forth the
reason why the item should be allowed or disallowed.”
the discovery requests must be included as exhibits.
plaintiff has not complied with this requirement.

Copies of
The

Accordingly,

the plaintiff’s motion to compel is denied without prejudice.
III. Motion for Extension of Time for Discovery
Finally, the plaintiff seeks an extension of time to conduct
discovery because he could not respond to the federal defendants’
objection to one of his interrogatories.
The end of the discovery period precludes serving any
additional discovery requests.

It does not prevent the plaintiff

from addressing one objection.

The plaintiff’s motion is denied.

IV.

Conclusion
The plaintiffs’ Motion to Cite in New Parties [Doc. #35] and

Motion for Extension of Time for Discovery [Doc. #40] are DENIED.
The plaintiff’s Motion for Order Compelling Disclosure and
Discovery [Doc. #39] is DENIED without prejudice.

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SO ORDERED this 2nd day of August 2011, at Bridgeport,
Connecticut.
/s/
Holly B. Fitzsimmons
United States Magistrate Judge

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