Johnson-Krumm v. City of Seaford et al

Filing 46

MEMORANDUM OPINION Signed by Judge Colm F. Connolly on 5/10/2019. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CAROL ANN JOHNSON-KRUMM,
Individually and as Personal
Representative of the Estate of
JUSTIN M. JOHNSON, deceased,
Plaintiff,

v.
Civil Action No. 16-496-CFC
CITY OF SEAFORD, SEAFORD
POLICE DEPARTMENT,
LT. RICHARD JAMISON,
SGT. THOMAS LEE, CPL. TOBY
LAURION, CPL. JAMES
BACHMAN, CPL. COLE SCOTT,
in their Official and Individual
Capacities.
Defendants.

Brian E. Farnan, Michael J. Farnan, Rosemary Jean Piergiovanni, FARNAN LLP,
Wilmington, Delaware

Counsel for Plaintiff
Daniel A. Griffith, Kaan Ekiner, WHITEFORD TAYLOR & PRESTON LLC,
Wilmington, Delaware

Counsel for Defendants
MEMORANDUM OPINION
May 10, 2019
Wilmington, DE

UNITED STATES DISTRICT JUDGE

Plaintiff Carol Ann Johnson-Krumm initiated this action with the pro se
filing of a complaint against Defendants City of Seaford (the "City") and Seaford
Police Department (the "Police Department") on June 24, 2016. D.I. 2. In
November 2016, the Honorable Gregory M. Sleet, who originally presided over
this action, issued an order to show cause why the complaint should not be
dismissed for failure to serve process within 90 days of the filing of the complaint.
D.I. 4. After receiving a letter from Plaintiff in response to the order to show
cause, Judge Sleet issued an order on December 13, 2016 "pursuant to Fed. R. Civ.
P. 4(m)" that granted Plaintiff until February 13, 2017 "to effect service upon the
defendants." D.I. 8. Plaintiff subsequently retained counsel, who assisted her in
filing a First Amended Complaint on November 6, 2017. The First Amended
Complaint added claims against Lt. Richard Jamison, Sgt. Thomas Lee, Cpl. Toby
Laurion, Cpl. James Bachman, and Cpl. Cole Scott in their official and individual
capacities (collectively the "Individual Defendants"; collectively with City and the
Police Department, "Defendants"). D.I. 40.

Pending before me is Defendants' motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)( 6) Plaintiff's claims against the Individual
Defendants. D.I. 41.

I.

BACKGROUND 1
Plaintiff's claims arise from an incident occurring on July 11, 2014 at the

Nanticoke Riverfest, an annual festival in Seaford, Delaware. D.I. 2 at 4-5; D.I. 40
at ,r,r 15, 22. Plaintiff's son, Justin M. Johnson, was apprehended by Seaford
police officers after being told he could not ride his bike through the festival. D.I.
2 at 4; D.I. 40 at ,r,r 22-27. While Mr. Johnson was still on his bike and wearing a
backpack, one of the officers handcuffed him and placed him under arrest. D.I. 2
at 4; D.I. 40 at ,r,r 26-27. Shortly after being handcuffed, Mr. Johnson, while still
wearing his backpack, broke free from the officers and ran into the Nanticoke
River. D.I. 2 at 5; D.I. 40 at ,r 38. Mr. Johnson struggled in the water and was
pulled out by rescue personnel after he had been in the water for at least 30
minutes. D.I. 2 at 5; D.I. 40 at ,r,r 40--46. After his rescue, Mr. Johnson was
transported to Nanticoke Memorial Hospital, where he was declared brain dead.
D.I. 2 at 5-6; D.I. 40 at ,r 47. Mr. Johnson died on July 15, 2014. D.I. 40 at ,r 48.

1

Unless otherwise noted, the facts recited herein are taken from Plaintiff's
complaints, which I generally "accept as true" for purposes of deciding a motion to
dismiss. See Spruill v. Gillis, 372 F.3d 218,223 (3d Cir. 2004).
2

Plaintiff has alleged claims under 42 U.S.C. § 1983 against the City, the
Police Department, and the Individual Defendants in their official capacities. D.I.
40 at 9-12. Plaintiff also alleges claims against the Individual Defendants in their
individual capacities under§ 1983 and Delaware state tort law. Id. at 12-16.
Defendants have moved for dismissal of the claims against the Individual
Defendants pursuant to Rule 12(b)(6) on the grounds that the claims are timebarred as a matter of law. D.I. 42 at 4.
II.

LEGALSTANDARD
To state a claim upon which relief can be granted, a complaint must contain

"a short and plain statement of the claim showing that the pleader is entitled to
relief." FED. R. CIV. P. 8(a)(2). Detailed factual allegations are not required, but
the complaint must set forth sufficient factual matter, accepted as true, to "state a
claim to relief that is plausible on its face." Bell At/. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is facially plausible when the factual content allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When
considering a Rule 12(b)( 6) motion to dismiss, the court must accept as true all
factual allegations in the complaint and view them in the light most favorable to
the plaintiff. Umland v. Planco Fin. Servs., 542 F.3d 59, 64 (3d Cir. 2008).

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III.

DISCUSSION
Defendants have moved for dismissal on the basis that the claims alleged

against the Individual Defendants are time-barred, having been asserted after the
expiration of the two-year statute of limitations. Plaintiff counters that the claims
against the Individual Defendants relate back to the filing date of the original
complaint and are permitted by Federal Rule of Civil Procedure 15(c)(l)(C).
"Section 1983 claims are characterized as personal injury claims, and district
courts must apply the state statute of limitations for personal injury claims." Gibbs
v. Deckers, 234 F. Supp. 2d 458,461 (D. Del. 2002). Thus, each of Plaintiffs
claims is subject to a two-year statute of limitations. See l 0 Del. C. § 8119
(imposing a two-year statute of limitations for personal injury claims). "Claims
not filed within the two-year statute of limitations period are time-barred and must
be dismissed." Cohee v. Danberg,, 2018 WL 1110285, at *2 (D. Del. Feb. 28,
2018). Here, the date of underlying incident was July 11, 2014, meaning Plaintiff
was required to bring her claims by July 11, 2016 in order for them to fall within
the two-year statute of limitations. Plaintiff filed her initial complaint before July
11, 2016 but she did not add her claims against the Individual Defendants until she
filed her First Amended Complaint on November 6, 2017. Therefore, the claims
asserted against the Individual Defendants will be time-barred unless Plaintiff
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.proves they relate back to the original complaint under Rule 15(c). See Singletary

v. Pa. Dep 't of Corr., 266 F .3d 186, 189 (3d Cir. 2001) ("Rule 15(c)[] provides for
the 'relation back' of amended complaints that add or change parties if certain
conditions are met, in which case the amended complaint is treated, for statute of
limitations purposes, as if it had been filed at the time of the original complaint.").
Because Plaintiff names additional parties in her amended pleading, three
conditions must be satisfied for her First Amended Complaint to relate back to the
filing of the original complaint. First, the new claims must have arisen from the
same conduct set out in the original pleading. See FED. R. Crv. P. 15(c)(l)(C).
Second, within the time period provided by Rule 4(m), the newly named parties
must have "received such notice of the action that [they] will not be prejudiced in
defending on the merits." FED. R. Crv. P. 15(c)(l)(C)(i). Third, the newly named
parties must have "kn[own] or should have known that the action would have been
brought against [them] but for a mistake concerning the proper party's identity."
FED. R. CIV. P. 15(c)(l)(C)(ii).

A.

Whether Plaintiff's Claims Against the Individual Defendants
Arise Out of the "Same Conduct" Set Out in the Original
Complaint

This first condition is satisfied because all of Plaintiffs claims arise out of
the same conduct set out in the original complaint-the arrest of Plaintiffs son and
his subsequent escape from police custody. See D.I. 2 at 4-5; D.I. 40 at 5-8.

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Defendants argue that Plaintiff's First Amended Complaint does not satisfy
the "same conduct, transaction, or occurrence test" because the original complaint
does not name any of the Individual Defendants and did not allege civil rights
violations. D.I. 45 at 7-8. But although the original complaint did not name
individual police officers or allege specifically violations under 42 U.S.C. § 1983
or state tort laws, it contained the same factual allegations found in the First
Amended Complaint regarding the actions of the officers. Compare D.I. 2 at 4-5

with D.I. 40 at 5-8. Therefore, I find that the claims asserted against the Individual
Defendants in the First Amended Complaint arise out of the same conduct set out
in the original complaint.

B.

Whether the Individual Defendants Received within The Time
Period Provided by Rule 4(m) Such Notice of the Action That
They Are Not Prejudiced in Maintaining a Defense

To determine whether this condition is satisfied I must resolve: first, what
was the time period provided by Rule 4(m); and second, whether the Individual
Defendants received within that period such notice of the action that they are not
prejudiced in defending themselves on the merits.

1. The Time Period Provided by Rule 4(m)
It is undisputed that, for purposes of Rule 15(c)(l)(C)(i), the "time period
provided by Rule 4(m)" includes any court-ordered extension of the time for
service. Accordingly, as a result of Judge Sleet's December 13, 2016 order, the

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relevant notice period under Rule 15(c)(1 )(C)(i) was extended through February
13, 2017. See Lopez v. Bucks Cty., 2016 WL 3612056, at *4 n.5 (E.D. Pa. July 5,
2016) (extending the Rule 15(c)(l)(C) notice period to include the extension
granted by the court for time of service); Williams v. City of York, Pa., No. 150493, 2016 WL 2610007, at *7 (M.D. Pa. May 6, 2016) (same). 2

2. Whether the Individual Defendants Received Sufficient Notice
The notice requirement of Rule 15(c)(l)(C) "does not require actual service
of process on the party sought to be added; notice may be deemed to have occurred
when a party who has some reason to expect his potential involvement as a
defendant hears of the commencement of litigation through some informal means."
Singletary, 266 F.3d at 195. Thus, notice may be actual or imputed.

2

Defendants argued in their Opening Brief that "[u]nder Rule 4(m), service of the
summons and complaint should be made upon defendants within 120 days of the
filing of the complaint." D.I. 42 at 11 n.2. According to Defendants,
"[ d]ispositive to this [motion] is the fact that sufficient notice was not provided the
[Individual] Defendants with 120 days of the filing of the Complaint." Id. at 12.
Rule 4(m), however, was amended in 2015 to shorten the time period for service
from 120 days to 90 days after the filing of the complaint. See FED. R. CIV. P. 4(m)
advisory committee note to 2015 amendment ("The presumptive time for serving a
defendant is reduced from 120 days to 90 days .... Shortening the time to serve
under Rule 4(m) means that the time of the notice required by Rule 15(c)(l)(C) for
relation back is also shortened."). Plaintiff made note in her Answering Brief of
the 90-day period prescribed by the amended Rule 4(m), and also cited the Lopez
and Williams cases for the proposition that Rule 15(c)(l){C) allows not only the 90
days specified by Rule 4(m) but also any additional time resulting from any
extension of the time period ordered by the court. Defendants did not challenge
this proposition in their reply brief.
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It is undisputed that the original complaint was served on the Police
Department on January 31, 2017. Plaintiff argues that this service constitutes both
actual and imputed notice to the Individual Defendants for purposes of Rule
15(c)(l)(C)(i). In Plaintiffs words, given the size of the Police Department, it
"strains ~redulity to believe that five of its officers ... would not have known of
Plaintiffs lawsuit implicating their conduct." D.I. 43 at 9. Defendants counter
that Plaintiffs assertion is an "ipsi dixit argument" and "nothing more than
Plaintiff requesting that this Court impute notice upon the [Individual] Defendants
on a mere basis of their employment." D.I. 45 at 3--4.
Although I agree with Defendants that notice cannot be imputed to the
Individual Defendants simply on the basis of their employment by the Police
Department, 3 three circumstances suggest that the Individual Defendants may have

3 The

Third Circuit has recognized two "methods of imputing notice": the "shared
attorney" method and the "identity of interest" method. Singletary, 266 F .3d at
189. I find that notice cannot be imputed to the Individual Defendants under either
method. First, although all of the defendants are now represented by the same
attorneys, the Individual Defendants were not represented by the same attorneys
during the relevant time period. Thus, the "shared attorney" method fails. See
Wallace v. Houston, 2015 WL 877887, at *4 (D. Del. Feb. 26, 2015) (finding that
the "shared attorney" method failed because the "Newly Added Defendants were
not represented at any time during the relevant [] period"). Second, a court may
impute notice under the "identity of interest" method "if the parties are so closely
related in their business operations or other activities that filing suit against one
serves to provide notice to the other of the pending litigation." Garvin v. City of
Phi/a., 354 F.3d 215,227 (3d Cir. 2003). The Third Circuit has held nonmanagerial employees "do[] not share a sufficient nexus of interests with [their]
employer," such that notice can be imputed. Singletary, 266 F.3d at 300. The
8

had actual notice of this action before February 13, 2017: (1) the small size of the
Police Department (it is undisputed that the Police Department has 27 officers); (2)
the fact that the original complaint was served at the Police Department's only
location; and (3) the fact that during the two-week period between the complaint's
service and February 13, 2017, the City and the Police Department moved to
dismiss the original complaint.
Plaintiff has requested that "[i]n the event the Court doubts whether the
Individual Defendants had actual or constructive notice of this action," she be
given an opportunity to take "limited discovery to confirm their notice." D.I. 43 at
12. I agree that such limited discovery is appropriate, but only if Plaintiff meets
the third condition she must satisfy under Rule 15(c)-i.e., whether the newly
named parties "knew or should have known that the action would have been
brought against [them] but for a mistake concerning the proper party's identity."

C.

Whether Plaintiff's Failure to Name the Individual Defendants
Constitutes Mistake

"[Rule 15(c)'s] mistake requirement has been held to be met (and thus
relation back clearly permitted) for an amended complaint that adds or substitutes a
party when a plaintiff makes a mistake by suing the state but not individual officers

Third Circuit has extended the definition of "non-managerial employees" to
include police officers. Garvin, 354 F.3d at 227. Therefore, the "identity of
interest" method also fails.
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in a§ 1983 action." See Singletary, 266 F.3d at 202 n.5. Taking "into
consideration [Plaintiffs] prose statu$ [at the filing of the original complaint] and
that§ 1983 liability is predicated upon personal involvement in the alleged
wronging," Davis v. Corr. Med. Sys., 480 F. Supp. 2d 754, 761 (D. Del. 2007), I
find that Plaintiffs failure to name the Individual Defendants meets the mistake
requirement of Rule 15(c)(l)(C)(ii).

IV.

CONCLUSION
For the reasons explained above, I will deny without prejudice Defendants'

motion to dismiss Plaintiffs claims against the Individual Defendants. As I am not
yet able to determine whether the Individual Defendants had actual notice of the
original complaint, I will grant Plaintiffs request to take discovery for the limited
purpose of ascertaining whether the Individual Defendants had actual notice of the
lawsuit as of February 13, 2017. I will allow Defendants to renew their motion
after such discovery is concluded.
The Court will enter an order consistent with this Memorandum Opinion.

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