Holmes v. City of Wilmington et al
MEMORANDUM regarding dismissal of complaint.. Signed by Judge Mark A. Kearney on 7/11/2017. (bkb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KIMBERLY PFAFF, et al.
July 11, 2017
A person filing a lawsuit must define and describe their claim in a pleading.
pleading must contain a short and plain statement of the claim showing a right to relief. The
Court and defendants cannot proceed to trial on unplead claims.
We liberally allow parties to
amend their pleading to ensure a valid claim or defense is resolved. When a party neither pleads
the claim she later wants to try nor asks for amendment after the Court has provided many
opportunities to do so because these steps are "unnecessary", and otherwise fails to show good
cause for not diligently following the Court's multiple scheduling orders allowing her more time
to plead a new claim, we are left with no option but to dismiss her case as all plead claims are
dismissed and an alleged remaining claim is not plead and to the proposed amendment is futile.
In the accompanying Order, we dismiss this case with prejudice.
Relevant procedural history
The late Medford Holmes 1 sued the City and various City law enforcement officials for
claims arising from his pretrial detention under 42 U.S.C. § 1983. 2 Although Mr. Holmes sued
under many different Fourth Amendment theories including false arrest/imprisonment and
malicious prosecution, he admits the Complaint does not include facts supporting a Fourth
Amendment claim based on false statements/omissions in an affidavit for probable cause for an
A. Defendants moved to dismiss but the parties did not brief the issue of a claim
predicated on false statements or omissions in an affidavit of probable cause.
Although Defendants did not initially move to dismiss the false arrest/imprisonment
claims, in their Reply they argued these claims (and the malicious prosecution claim) were
barred because Mr. Holmes' grand jury indictment conclusively established probable cause. 3
Holmes argued the grand jury indictment could not demonstrate probable cause because
Defendants procured the indictment by fraud, perjury or other corrupt means. 4 The parties did
not brief the issue of fraud in an affidavit of probable cause.
In her February 4, 2015 Memorandum, Judge Robinson found Mr. Holmes did not plead
sufficient facts to show fraud before the grand jury because Holmes did not identify which
witnesses perjured themselves. 5 In the accompanying Order, Judge Robinson granted Holmes
leave to file an Amended Complaint to cure pleading defects on or before March 4, 2015. 6
Holmes did not file an Amended Complaint. On March 23, 2015, Judge Robinson issued
an order to show cause why the action should not be dismissed for failing to file an Amended
Complaint. 7 Mr. Holmes responded, "Plaintiff is presenting claims against the defendants for
malicious prosecution, procedural due process, false arrest and false imprisonment." 8
Holmes complained the facts he needed to prove his claims-such as the grand jury transcript
and investigative materials-are only available through discovery. 9
Judge Robinson found
Holmes' response "sufficient to enable the case to proceed to the discovery process, without
amendment at this time." 10
B. Judge Robinson set deadlines for amending pleadings and completing
On July 20, 2015, Judge Robinson entered a Scheduling Order requiring "Amended
Pleadings (are] due by 8/30/2015" and "Discovery [is] due by 1/30/2016." 11 Holmes did not file
an amended pleading at any point after the July 20, 2015 Scheduling Order.
On January 22, 2016, Defendants moved to extend the discovery deadline. 12 Judge
Robinson granted the motion, extending the discovery deadline to February 23, 2016. 13
C. Defendants moved for summary judgment, arguing no evidence an affiant
made false statements or omissions in seeking an arrest warrant.
Defendants timely moved for summary judgment, arguing the unchallenged arrest
warrant established probable cause, precluding Holmes' claims for false arrest, false
imprisonment, and malicious prosecution. 14 Defendants addressed case law providing a warrant
is presumptively valid unless the affiant knowingly, deliberately, or with reckless disregard for
the truth, made false statements or omissions creating a falsehood, and the statements/omissions
were material to the finding of probable cause. 15
Defendants argued Holmes neither alleged nor provided evidence demonstrating the
affiant falsified the warrant application: "In this case, Plaintiff has not alleged the warrant affiant
... falsified any of the information contained in the affidavit of probable cause, nor is there any
evidence in the record to support such an allegation." 16
Holmes responded the evidence
demonstrated Defendants "knowingly and deliberately, or with reckless disregard for the truth,
made false statements and omissions when they applied for the warrant to arrest Mr. Holmes." 17
Holmes did not respond to Defendants' argument Holmes never alleged the warrant affiant
On April 19, 2017, Judge Robinson denied summary judgment in part on Holmes' "§
1983 Fourth Amendment Claim" because "Defendants' brief did not squarely address whether
[the City detectives] are subject to qualified immunity" for this claim. 18
dismissed Holmes' § 1983 malicious prosecution claim because Holmes failed to demonstrate a
genuine issue of material fact as to whether the criminal proceedings terminated in Mr. Holmes'
favor, explaining Mr. Holmes' nolle prosequi and the prosecutor's accompanying explanation"credibility of witnesses"-did not demonstrate the prosecutor dismissed the charges due to his
innocence. 19 The only remaining claim following Judge Robinson's summary judgment decision
is Holmes' "§ 1983 Fourth Amendment claim."
D. In May 2017, we ordered briefing on any remaining §1983 Fourth
Following reassignrnent20 and upon recognizing Judge Robinson dismissed Holmes'
Fourth Amendment claims based on theories of excessive force, malicious prosecution, false
arrest, and false imprisonment, we ordered Holmes "to define any remaining viable Fourth
Amendment claim."21 In response, Holmes identified an "unlawful seizure" claim based on the
City detectives' materially false statements and omissions in an arrest warrant application. 22
On June 20, 2017, we held a status call in which we discussed Holmes' unlawful seizure
claim. 23 We asked Holmes' counsel to identify factual allegations in the Complaint supporting
this claim, and counsel admitted there were none.
Rather than dismissing Holmes' lawsuit
outright for lack of any remaining pleaded claims, we ordered Holmes to file a memorandum
explaining why she would have good cause under Federal Rule of Civil Procedure 16(b)(4) to
file an Amended Complaint asserting a claim under her admittedly unpled Fourth Amendment
We dismiss Holmes' Complaint because she fails to demonstrate good cause to seek
leave to amend.
Even if Holmes had timely or diligently moved to amend, the "unlawful
seizure" claim Holmes presses would have been futile.
A. Holmes does not demonstrate good cause under Rule 16(b)(4).
A party seeking leave to amend a pleading after the date set in a scheduling order must
demonstrate good cause under Federal Rule of Civil Procedure 16(b)(4), 25 which provides "[a]
schedule may be modified only for good cause and with the judge's consent."26 "In contrast to
Rule 15(a), the good cause standard under Rule 16(b) hinges on diligence of the movant, and not
on prejudice to the non-moving party." 27 "The good cause element requires the movant to
demonstrate that, despite diligence, the proposed claims could not have been reasonably sought
in a timely manner." 28
Courts find good cause where the party seeks leave to amend soon after it learns of the
factual basis warranting amendment. 29 For example, in Roquette Freres, the court found good
cause where the plaintiff filed its motion to amend within one month of learning information
forming the basis of the motion through discovery. 30 Similarly, in SunPower Corporation v.
PaneClaw, Inc., the court found good cause for the defendant to amend its Answer where the
plaintiff produced the pertinent discovery approximately one month before the amendment
deadline and the defendant moved to amend just over two weeks after the deadline, recognizing
"Defendant had to review those new documents, prepare its supplemented amended answer, and
draft its motion to supplement." 31
Holmes does not demonstrate she acted with diligence. Judge Robinson set the deadline
for amending pleadings on August 30, 2015. Judge Robinson extended the discovery deadline
from January 30, 2016 to February 23, 2016. Holmes admits she "could have sought leave to
amend after discovery was complete," but she declined to do so because "it appeared that such
Amendment was not necessary as Defendants were on notice of the claims and the factual basis
thereof as demonstrated by their Motion for Summary Judgment."32 But the good cause analysis
focuses not on the prejudice to Defendants, but on the diligence of Holmes. Given Holmes'
admitted lack of diligence, she fails to demonstrate she could not have reasonably sought leave to
amend in a timely manner.
B. Amendment would be futile.
Holmes fails to demonstrate amendment would not be futile.
We may deny leave to
amend if amendment would be futile, which means the Complaint, "as amended, would fail to
state a claim upon which relief could be granted. " 33
Despite Holmes characterization of the Fourth Amendment claim as an "unlawful
seizure" claim, this claim is a malicious prosecution claim. Both malicious prosecution and false
arrest/imprisonment claims are remedies for unconstitutional detentions.
While a false
arrest/imprisonment claim remedies a detention "without legal process" (such as an arrest
warrant), a malicious prosecution claim remedies an unlawful detention "accompanied, not by
absence of legal process, but by wrongful institution of legal process."34
Holmes' claim is
predicated upon false statements and omissions in an affidavit of probable cause resulting in an
unlawfully acquired arrest warrant, which is a form of legal process.
We accordingly find
Holmes "unlawful seizure" claim is a malicious prosecution claim based on false statements and
omissions in an affidavit of probable cause.
As Judge Robinson explained, a successfully malicious prosecution claim requires proof
the criminal proceeding end in Mr. Holmes' favor. 35 Mr. Holmes' criminal proceedings ended as
a result of a nolle prosequi of his charges. Our court of appeals instructs "[a] no! pros signifies
termination of charges in favor of the accused 'only when their final disposition is such as to
indicate the innocence of the accused. "' 36 Judge Robinson dismissed Holmes' § 1983 malicious
prosecution claim because Holmes failed to demonstrate the prosecutor's nolle prosequi
dismissal of the charges for "credibility of witnesses" showed Holmes' innocence.
We agree. A nolle prosequi dismissal for "credibility of witnesses" does not indicate
innocence, but instead demonstrates the prosecutor's belief the witnesses lack the requisite
credibility to acquire a conviction. Because Holmes' newly asserted malicious prosecution claim
could not have satisfied the favorable termination requirement, we deny Holmes leave to amend
We hesitate to dismiss Ms. Holmes' case because she never plead her current claim. But
Judge Robinson provided her many opportunities to diligently pursue an amendment.
unknown reasons, she declined to do so. She now claims amending pleadings is unnecessary.
We disagree. Ms. Holmes does not show good cause for never timely moving to amend. Even
if we found good cause, her unplead claim is futile.
In the accompanying Order, we dismiss
Holmes' Complaint with prejudice because Holmes cannot demonstrate good cause or lack of
Medford Holmes' personal representative, Patricia Holmes, replaced Mr. Holmes. ECF Doc.
ECF Doc. No. 1, at pp. 6-7. Count I includes § 1983 claims under a litany of different theories
in one run-on sentence: "right to be free from unreasonable searches and seizures, excessive
force, false arrest, false imprisonment, malicious prosecution, verbal abuse, to be secure in ones'
person and property, and to due process and equal protection oflaw." Id. ~ 39.
ECF Doc. No. 11, at p. 6.
ECF Doc. No, 10, at p. 15.
ECF Doc. No. 21, ~ 39.
ECF Doc. No. 22.
ECF Doc. No. 24.
ECF Doc. No. 25, at p. 2.
ECF Doc. No. 27, ~ 5.
July20, 2015 Text Order.
ECF Doc. No. 37.
January 27, 2016 Text Order.
ECF Doc. No. 48, at p. 17.
ECF Doc. No. 56, at p. 15.
ECF Doc. No. 61, at p. 6.
ECF Doc. No. 64.
ECF Doc. No. 65.
ECF Doc. No. 68, at p. 2.
ECF Doc. No. 72.
Dimensional Commc 'ns, Inc. v. OZ Optics, Ltd, 148 F. App'x 82, 85 (3d Cir. 2005) (citing E.
Minerals & Chemicals Co. v. Mahan, 225 F.3d 330, 340 (3d Cir. 2000)).
Fed. R. Civ. P. 16(b)(4).
ICU Med., Inc. v. RyMed Techs., Inc., 674 F. Supp. 2d 574, 577-78 (D. Del. 2009) (quoting
Roquette Freres v. SP! Pharma, Inc., No. 06-540, 2009 WL 1444835, at *4 (D. Del. May 21,
Cornell Univ. v. lllumina, Inc., No. 10-433, 2016 WL 3046258, at *4 (D. Del. May 27, 2016)
See, e.g., Roquette Freres, 2009 WL 1444835, at *6.
SunPower Corp. v. PaneClaw, Inc., No. 12-1633, 2016 WL 5107029, at *21 (D. Del. Sept. 19,
ECF Doc. No. 74, at pp. 6-7.
Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citation omitted).
Wallace v. Kato, 549 U.S. 384, 389-90 (2007) (italics omitted).
See Donahue v. Gavin, 280 F.3d 371, 379 (3d Cir. 2002).
Id. at 3 83 (citation and italics omitted).
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