Harris v. Rambosk et al

Filing 198

ORDER granting 180 Motion for Reconsideration. Upon reconsideration, the Motion for Summary Judgment 113 is granted as to statute of limitations issue. The alternative relief for § 1292(b) Certification is denied as moot. The Clerk shall withhold entry of judgment until after the case is returned from the Eleventh Circuit Court of Appeals. Signed by Judge John E. Steele on 11/5/2020. (TLP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT DALE HARRIS,
Plaintiff,
v.

Case No:

2:18-cv-17-FtM-29MRM

KEVIN
RAMBOSK,
in
his
official capacity as Sheriff
of Collier County, Florida,
KASEY
P.
WINGO,
individually,
MICHAEL
D.
CHAPMAN, individually, SCOTT
PEPIN,
individually,
and
ROSS ANTHONY, individually,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendant Scott Pepin’s
Motion for Reconsideration, or in the Alternative for § 1292(b)
Certification (Doc. #180), filed on November 6, 2019.

Plaintiff

filed a Response in Opposition (Doc. #187) on November 7, 2019.
The Court allowed Defendant Pepin to file a Reply (Doc. #195) on
June 9, 2020.

For the reasons set forth below, the Motion to

Reconsider is granted. Upon reconsideration, the Court grants the
Motion For Summary Judgment based upon the statutes of limitations.
The Court denies the Motion For Certification Of An Interlocutory
Appeal as moot.

I.
Plaintiff Robert Dale Harris (plaintiff or Harris) filed his
original Complaint (Doc. #1) on January 9, 2018.
asserted

claims

for

false

arrest,

excessive

The Complaint

force,

malicious

prosecution, negligence, assault and battery, negligent infliction
of emotional distress, conspiracy, and First Amendment retaliation
against Collier County Sheriff Kevin Rambosk in his official
capacity and Collier County Sheriff’s Office (CCSO) deputies Kasey
P. Wingo, Michael D. Chapman, and Brian Wiedel in their individual
capacities.

The claims asserted in the Complaint arose out of two

arrests of plaintiff and several encounters between Plaintiff and
CCSO deputies.

All claims were timely filed within the various

applicable statutes of limitations as to all named defendants.
Although he was mentioned by name in the recitation of facts as to
an April 4, 2014 arrest and the subsequent trespass warning, CCSO
Deputy Scott Pepin (Deputy Pepin) was not named as a defendant in
the Complaint.
On May 1, 2018, plaintiff filed an Unopposed Motion to Amend
Complaint. (Doc. #49.)

Among other proposed changes, the amended

complaint would add “two additional defendants who, upon further
review of discovery and additional facts acquired by counsel after
the original Complaint was filed, played a key and significant
role in the Plaintiff’s claims for conspiracy, excessive use of
force, malicious prosecution, and violation of his first amendment

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rights.”

(Id. ¶ 3.)1

The Motion was granted the same day.

(Doc.

#50.)
The Amended Complaint (Doc. #51) was filed on May 2, 2018.
Deputy Pepin was one of the two new defendants named in the Amended
Complaint. The Amended Complaint asserted claims against Deputy
Pepin for false arrest and excessive force under 42 U.S.C. § 1983
(Count VIII), malicious prosecution under § 1983 and state law
(Counts IX and X), assault and battery under state law (Count XI),
and First Amendment retaliation (Count XVI).

The claims against

Deputy Pepin arose out of two encounters: (1) Plaintiff’s arrest
by CCSO deputies Chapman and Wingo on April 4, 2014, in which it
is alleged that

Deputy Pepin assisted in the arrest,

struck

Plaintiff’s back with a baton, and deployed a Taser into his back
(Id., ¶¶ 301-335); and (2) a trespass warning that Deputy Pepin
and three other deputies issued to Plaintiff on June 10, 2014.
(Id., ¶¶ 361-372.)

A Summons was issued as to Deputy Pepin (Doc.

#52) on May 9, 2018.
Deputy Pepin was personally served with the Summons and
Amended Complaint on May 18, 2018.

(Doc. #197.)

On June 8, 2018,

Deputy Pepin, through the law firm of DeBevoise & Poulton, P.A.,

While the Motion to Amend Complaint was unopposed by the
defendants named in the original Complaint, Deputy Pepin would
later note that “[t]his assertion appears mistaken as Plaintiff
was clearly aware of Pepin’s conduct as of the timely-filed
original Complaint.” (Doc. #62, p. 10 n.1.)
1

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filed a Motion to Dismiss Amended Complaint (Doc. #62) on statute
of limitations and qualified immunity grounds.

Under Local Rule

2.03(a) of the Local Rules of the United States District Court for
the

Middle

District

of

Florida,

this

constituted

a

general

appearance by counsel on behalf of Deputy Pepin. The Court denied
the Motion to Dismiss on October 18, 2018. (Doc. #74.)
On November 1, 2018, Deputy Pepin filed his Answer and
Affirmative Defenses.

(Doc. #76.)

Deputy Pepin denied the

allegations of wrongdoing, and his Fourth Affirmative Defense
asserted that Counts VIII-XI were barred by the four-year statutes
of limitations.
On June 10, 2019, Deputy Pepin moved for summary judgment on
Counts VIII, IX, X, and XI. (Doc. #113.)2

Deputy Pepin argued in

part that the claims based on the April 4, 2014 arrest were timebarred because the four-year statutes of limitations began to run
on April 4, 2014, and Plaintiff filed the Amended Complaint adding
Deputy Pepin as a new defendant on May 2, 2018 – more than four
years later.
On November 5, 2019, the Court entered its Opinion and Order
(Doc. #175) granting in part and denying in part Deputy Pepin’s

Although not relevant here, Deputy Pepin also moved for
summary judgment on the merits of Plaintiff’s First Amendment
retaliation claim in Count XVI. The Court granted Deputy Pepin’s
motion as to that claim. (Doc. #175, p. 26.) Count XVI was the
only count against Deputy Pepin relating to the June 10, 2014
trespass events.
2

- 4 -

motion for summary judgment.

The Court agreed that Counts VIII,

IX, X, and XI all appeared to be untimely (Id., pp. 8-10), and
rejected plaintiff’s arguments that equitable estoppel applied.
(Id., pp. 10-12.)

The Court found, however, that such claims were

not time-barred because they related back to the timely-filed
claims set forth in the January 9, 2018 original Complaint.

(Id.,

pp. 12.) Specifically, the Court found that the claims against
Deputy Pepin related back to the original Complaint under Rule
15(c)(1)(B) of the Federal Rules of Civil Procedure.
13-14.)

(Id., pp.

The Court then proceeded with the merits of the summary

judgment motion as to these counts, ultimately denying summary
judgment.

(Id., pp. 14-26.)

Deputy

Pepin

now

seeks

reconsideration

of

the

Court’s

determination that the Amended Complaint related back to the
original Complaint.

Alternatively, Deputy Pepin requests that the

Court certify the issue for interlocutory appellate review under
28 U.S.C. § 1292(b). In his Response in Opposition (Doc. #187),
plaintiff argued that even if the Amended Complaint does not relate
back

under

15(c)(1)(A).

Rule

15(c)(1)(B),

it

related

back

under

Rule

Deputy Pepin was allowed to file a Reply (Doc. #195)

as to this issue.
II.
The issue in this case is whether the Amended Complaint adding
Deputy Pepin as a new defendant relates back to the timely-filed

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original Complaint.

If it does, the claims against Deputy Pepin

are not barred by any of the applicable statutes of limitations,
and the claims may proceed (subject, of course, to the current
appeal on the qualified immunity issue.)

If it does not, all

pending claims against Deputy Pepin are untimely (regardless of
the outcome of the qualified immunity issue.)
Rule 15(c) of the Federal Rules of Civil Procedure Rule
governs

the

pleadings.

relation

back

effect

of

amendments

to

federal

Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 541

(2010); Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1131
(11th Cir. 2004).

The effect of allowing relation back is that

the amended pleading is permitted to adopt the earlier pleading’s
filing date and is not time-barred by statutes of limitations or
similar provisions, even if otherwise untimely. Makro Cap. of Am.,
Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008).

Rule

15(c)(1) “mandates relation back once the Rule's requirements are
satisfied; it does not leave the decision whether to grant relation
back to the district court's equitable discretion.”

Krupski, 560

U.S. at 553.
Under Rule 15(c)(1), an amended pleading relates back to the
date of an original pleading when:
(A) the law that provides the applicable statute of
limitations allows relation back;
(B) the amendment asserts a claim or defense that arose
out of the conduct, transaction, or occurrence set out-

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-or attempted to be set out--in the original pleading;
or
(C) the amendment changes the party or the naming of the
party against whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will
not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party's identity.
Fed. R. Civ. P. 15(c)(1)(A)-(C).

Thus, Rule 15(c) establishes two

ways in which an amended pleading can relate back to an earlier
pleading.
First, relation back is permitted when the law
imposing the statute of limitations itself
permits relation back. See Fed. R. Civ. P.
15(c)(1)(A). Second, a pleading would relate
back if it “asserts a claim or defense that
arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—
in the original pleading.” Fed. R. Civ. P.
15(c)(1)(B). However, Rule 15 imposes an
additional requirement for pleadings in this
second group that also involve a change in the
party against whom the claim is asserted. See
Fed. R. Civ. P. 15(c)(1)(C). In order for
pleadings in that subgroup to relate back, the
party being added must have “(i) received such
notice of the action that it will not be
prejudiced in defending on the merits ... and
(ii) knew or should have known that the action
would have been brought against it, but for a
mistake
concerning
the
proper
party's
identity.” Id. Such pleadings also still must
meet the common transaction or occurrence test
of Rule 15(c)(1)(B). See id.

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Makro Cap., 543 F.3d at 1258 (footnote omitted.)

“Although the

statute of limitations is an affirmative defense that must be
established by the defendant, when relation back is required to
satisfy the statute of limitations, the burden is on the plaintiff
to prove that Rule 15(c) is satisfied.”

Covey v. Assessor of Ohio

Cnty., 666 F. App’x 245, 248 (4th Cir. 2016)(citations omitted.)
A. Relation Back Pursuant To Rule 15(c)(1)(B)-(C)
The general rule is set forth in Fed. R. Civ. P. 15(c)(1)(B).
An amendment of a complaint relates back to the date of the
original complaint if the claim asserted in the amended pleading
“arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading.”

Cliff, 363

F.3d at 1131, quoting Rule 15(c)(1)(B).
The Court’s original Opinion and Order (Doc. #175) applied
the Rule 15(c)(1)(B) general rule.
Amended

Complaint

related

back

The Court determined that the
to

the

date

of

the

original

Complaint because the claims against Deputy Pepin arose out of the
same conduct described in the original Complaint as to the April
4, 2014 arrest.

(Doc. #175, pp. 12-14.)

This was the end of the

Court’s analysis, but it should not have been.

See Makro Cap.,

543 F.3d at 1258.
“[W]hen an amendment seeks to change a party against whom a
claim is asserted, as opposed to changing merely the allegations

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set

forth

in

stringent.”

the

pleading,

the

relation

Cliff, 363 F.3d at 1131.

back

rule

is

more

Thus,

[a]n amended complaint that adds a party or
changes the name of a party relates back where
(1) the claim “arose out of the same conduct,
transaction or occurrence set out—or attempted
to be set out—in the original pleading;” (2)
the new party “received such notice of the
action that it will not be prejudiced in
defending on the merits;” (3) the party being
added received such notice within the time
period of Rule 4(m), 120 days; and (4) the
party being added “knew or should have known
[within the Rule 4(m) time period] that the
action would have been brought against it, but
for a mistake concerning the proper party's
identity.”
Lindley v. City of Birmingham, Ala., 515 F. App’x 813, 815 (11th
Cir. 2013).

See also Ceara v. Deacon, 916 F.3d 208, 211 (2d Cir.

2019).
Because the Court’s original Opinion and Order failed to
complete the analysis required when a new defendant is added by
amendment, the Court grants Deputy Pepin’s motion to reconsider.
The Reconsideration is set forth below.
(1)

Timely Original Complaint

The original Complaint must have been timely filed, or else
determination

of

relation

back

is

a

pointless

exercise.

See

Krupski, 560 U.S. at 541. Both parties agree that the original
Complaint in this case was timely filed as to all claims.
Court also agrees.

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The

(2)

Arose Out of Conduct Set Forth In Original Complaint

The amended pleading must meet the common transaction or
occurrence test of Rule 15(c)(1)(B). Makro Cap., 543 F.3d at 1258.
The Court continues to be of the view that the Amended Complaint
satisfies Rule 15(c)(1)(B) because “the amendment asserts a claim
or

defense

that

arose

out

of

the

conduct,

transaction,

or

occurrence set out--or attempted to be set out--in the original
pleading.”

A substantial portion of the claims in the original

Complaint involved the April 4, 2014 arrest, as do all the relevant
claims

against

Deputy

Pepin

in

the

Amended

Complaint.

Accordingly, Plaintiff has established that Rule 15(c)(1)(B) is
satisfied.
(3)
If
requires

Sufficient and Timely Notice to Defendant
Rule
that

15(c)(1)(B)
within

90

is
days

satisfied,
of

the

Rule

filing

of

15(c)(1)(C)(i)
the

original

Complaint the new party “received such notice of the action that
it will not be prejudiced in defending on the merits.” Fed. R.
Civ. P. 15(c)(1)(C)(i). The Supreme Court has re-iterated that
Rule 15(c)(1) “asks what the prospective defendant knew or should
have known during the Rule 4(m) period, not what the plaintiff
knew or should have known at the time of filing her original
complaint.”

Krupski, 560 U.S. at 548.

Here, the record clearly establishes that both before and
after the filing of the original Complaint Deputy Pepin had notice

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of the claims such that he would not be prejudiced in defending on
the merits.

Harris had filed two Notices of Intent to File a

lawsuit against the Sheriff’s Office, one on September 28, 2016
and the other on January 24, 2017.

The Sheriff’s Office opened

an internal administrative investigation which included Deputy
Pepin’s conduct at the April 4, 2014 arrest as potentially conduct
unbecoming of a law enforcement officer.

(Doc. #116, pp. 25-26.)

Deputy Pepin had provided a Sworn Statement to investigators on
July 3, 2017 (Doc. #113), and he affirmed the truthfulness of his
statement

in

a

deposition

after

the

filing

of

the

Amended

Complaint. (Doc. #116, pp. 27-28.) In both the Sworn Statement and
the deposition, Deputy Pepin described his conduct in assisting in
the arrest, striking Harris with a baton, and tasing him with a
taser.

(Doc. # 113-2, pp. 68-72; Doc. #116, pp. 33-34.)

The original Complaint described Deputy Pepin’s actions in
the April 4, 2014 arrest of plaintiff as a responding deputy who
“used his baton on HARRIS’S back, striking him several times.”
(Doc. #1, ¶ 66.)

This occurred after Harris was “subdued on the

ground, these officers join in on the assault and battery against
HARRIS by continuing to taser and beat him, including Cpl. Pepin
who uses his baton to strike HARRIS on his back several times.”
(Id. at ¶ 52.)

This resulted in Harris being “on the ground and

incapacitated from the beating . . .”

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(Id. at ¶ 53.)

Deputy Pepin has never asserted any prejudice, and the record
establishes that none existed in his defense of the allegations.
See Fed. R. Civ. P. 15(c)(1)(C)(i). Plaintiff has thus established
this requirement for relation back.
(4)

Defendant’s Timely Knowledge of Mistake

Rule 15(c)(1) also requires that within the same 90-day period
defendant “knew or should have known that the action would have
been brought against it, but for a mistake concerning the proper
party's identity.”

Fed. R. Civ. P. 15(c)(1)(C)(ii).

The correct

inquiry focuses on what Deputy Pepin “reasonably should have
understood

about

[plaintiff’]s

intent

in

filing

complaint against” the Sheriff and three deputies.
U.S. at 553-54.

the

original

Krupski, 560

That is, would Deputy Pepin reasonably have

understood that Harris intended to file claims against him in the
original Complaint but for a mistake. See Krupski, 560 U.S. at
548-49 (the Supreme Court discusses the concept of “mistake” in
Rule 15(c)).
Assuming there was a “mistake” within the meaning of Rule
15(c)(1)(C)(ii), the record establishes that Deputy Pepin did not
know and should not reasonably have known that plaintiff intended
to sue him as well as the other defendants in the original
Complaint but for a mistake.

There was no mistake as to a party’s

identity in this case, since Deputy Pepin and all the other parties
were well-known from virtually the beginning of the events.

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Plaintiff filed an 82-page, 479-paragraph, 21-count, factintensive original Complaint (Doc. #1).

As summarized above, the

original Complaint described Deputy Pepin’s actions in the April
4, 2014 arrest as assisting the other officers in arresting
plaintiff, striking Harris several times on his back with a baton
after Harris had been subdued on the ground.

(Doc. #1, ¶ 66.)

After Harris was “subdued on the ground,” the arriving officers
“join in on the assault and battery against HARRIS by continuing
to taser and beat him, including Cpl. Pepin who uses his baton to
strike HARRIS on his back several times.”

(Id. at ¶ 52.)

This

resulted in Harris being “on the ground and incapacitated from the
beating . . .”

(Id. at ¶ 53.)

Plaintiff alleged that about 59

CCSO deputies and personnel conducted 76 searches of plaintiff,
which included searches by Pepin.

(Id. at ¶ 149.)

Like Deputy

Pepin, most of the more than 59 CCSO deputies and other personnel
who were identified by name were never named as a defendant.
(e.g., Id. ¶¶ 67-124, 128-35, 137, 139-42, 144-48.)
The original Complaint was exceptionally detailed and factspecific, and Deputy Pepin clearly would have understood that the
naming of defendants had been given considerable thought.

Nothing

would have caused Deputy Pepin to believe he had escaped being a
named-defendant due to the mistake or accident of plaintiff or his
attorney.

Rather, until being served with the Amended Complaint

on May 18, 2018, Deputy Pepin would have reasonably understood

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that he was not an intended defendant.

May 18, 2018, is 129 days

after the original Complaint was filed, and is therefore outside
the 90-day period set forth in Rule 15(c)(1).

Because plaintiff

has not established timely knowledge by Deputy Pepin, he has not
established that the Amended Complaint relates back to the filing
of the original Complaint.
B. Relation Back Under Rule 15(c)(1)(A)
Plaintiff also relies on Fed. R. Civ. P. 15(c)(1)(A), which
provides that an amended pleading relates back to an earlier
pleading where “the law that provides the applicable statute of
limitations allows relation back.”

Fed. R. Civ. P. 15(c)(1)(A).

This provision of Rule 15
incorporates the relation-back rules of the law of a
state when that state's law provides the applicable
statute of limitations. As a result, if an amendment
relates back under the law that provides the applicable
statute of limitations, that amendment relates back
under Rule 15(c)(1)[(A)] even if the amendment would not
relate back under the federal law rules.
Saxton v. ACF Indus., Inc., 254 F.3d 959, 962–63 (11th Cir. 2001).
Thus, where state “law affords a more forgiving principle of
relation back than the one provided in [Rule 15(c)(1)(B)-(C)], it
should be available to save the claim.”

Id. at 962 (citation and

quotation omitted). See also Presnell v. Paulding Cnty., 454 F.
App’x 763, 767 (11th Cir. 2011)(in citing to Saxton, the court
found

that

because

Georgia

law

applied

to

the

statute

of

limitations for a § 1983 claim, Georgia law controlled regarding

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relation back of an amendment, even if federal law would not permit
it.)
Deputy

Pepin

jurisdiction,

and

argues
the

that

Eleventh

Saxton

was

Circuit

based

has

yet

on

diversity

to

expressly

confront whether federal courts borrow state law on relation back
in federal question jurisdiction cases. See e.g., King v. Bencie,
806 F. App’x 873 (11th Cir. 2020); Menedez v. Jarden Corp., 503 F.
App’x 930 (11th Cir. 2013).

This is true, but there is nothing

in Rule 15(c)(1)(A) which indicates the application of the Rule
depends

on the source of the

jurisdiction.

federal court’s subject matter

The Court finds that Rule 15(c)(1)(A) applies to a

case such as this, where subject matter jurisdiction is premised
on federal question jurisdiction and supplemental jurisdiction.
Deputy Pepin further contends that even if Florida relation
back law applies, it would not permit the addition of a new party
after the statute of limitations has run.

The Court agrees.

Florida Rule of Civil Procedure 1.190(c) governs amended
pleadings and defines the relation back doctrine as follows:
(c) Relation Back of Amendments. When the
claim or defense asserted in the amended
pleading arose out of the conduct, transaction
or occurrence set forth or attempted to be set
forth in the original pleading, the amendment
shall relate back to the date of the original
pleading.
Fla. R. Civ. P. 1.190. Generally, Florida has a judicial policy of
freely permitting amendments to the pleadings so that cases may be

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resolved on the merits, as long as the amendments do not prejudice
or disadvantage the opposing party. Caduceus Props., LLC v. Graney,
137 So. 3d 987, 991–92 (Fla. 2014).
The relation back doctrine, however, usually does not apply
when an amendment seeks to add an entirely new party to the action
after the statute of limitations has expired. Caduceus Props., 137
So. 3d at 993-94 (“Our holding here also does not disturb the
precedent that, generally, the relation-back doctrine does not
apply when an amendment seeks to bring in an entirely new party
defendant to the suit after the statute of limitations period has
expired.”)(citations omitted).

See also Castro v. Linfante, 45

Fla. L. Weekly D1774 (Fla. 3d DCA July 22, 2020).
Nevertheless, courts have recognized an exception to this
rule “for separate parties with a sufficient ‘identity of interest’
such that the ‘addition will not prejudice the new party.’” Rayner
v. Aircraft Spruce Advantage, Inc., 38 So. 3d 817, 820 (Fla. 5th
DCA 2010) (quoting Arnwine v. Huntington Nat’l Bank, N.A., 818 So.
2d 621, 624 (Fla. 2d DCA 2002). “The gist of the exception is that
the relation-back doctrine applies when the new defendant is
essentially one in the same as the existing defendant.”3 Russ v.

Cases in which the “identity of interest” exception has been
applied often involve “the substitution of one corporate entity
for another.” Russ, 159 So. 3d at 410; see e.g., Stiman v. Michael
Graves Design Grp., Inc., 983 So. 2d 626 (Fla. 3d DCA 2008);
Williams v. Avery Dev. Co.-Boca Raton, 910 So. 2d 851 (Fla. 4th
DCA 2005); Darden v. Beverly Health & Rehab., 763 So. 2d 542 (Fla.
3

- 16 -

Williams, 159 So. 3d 408, 411 (Fla. 1st DCA 2015).

The exception

will apply when the new defendant “knew or should have known that
the plaintiff had made a mistake . . . as concerns the correct
identity of the defendant so that the added party was deemed to
have

suffered

no

prejudice

by

being

tardily

brought

in

or

substituted as a party.” Rayner, 38 So. 3d at 820 (quoting Arnwine,
818 So. 2d 624).
Here, plaintiff added Deputy Pepin as an entirely new party.
While Deputy Pepin was employed by CCSO, the claims against Deputy
Pepin were in his individual capacity, seeking damages from his
pocketbook, not that of the Sheriff’s Office.

Kentucky v. Graham,

473 U.S. 159, 166 (1985)(“while an award of damages against an
official in his personal capacity can be executed only against the
officials assets, a plaintiff seeking to recover on a damages
judgment in an official-capacity suit must look to the government
entity itself.”) This is not an instance where Deputy Pepin is
“one in the same as the existing defendant[s]” such that there is
an “identity of interest” between Pepin and the previously named
defendants.4 Rayner, 38 So. 3d at 820; Russ, 159 So. 3d at 411.

5th DCA 2000).
Plaintiff argues the Court’s previous finding that
Plaintiff’s civil conspiracy claim was barred by the intracorporate immunity doctrine lends support to a finding that Deputy
Pepin shares an “identity of interest” with the named defendants.
(Doc. #187, p. 3). The Court does not find that resolution of one
issue is persuasive as to resolution of the other.
4

- 17 -

Further, as discussed above, Deputy Pepin neither knew nor should
have known that the plaintiff had made a mistake in previously
deciding he should not be a named defendant.

Deputy Pepin did not

mislead plaintiff as to his identity and was “under no obligation
to advise plaintiff who to sue.” Russ, 159 So. 3d at 411 (quoting
Gray v. Exec. Drywall, Inc., 520 So. 2d 619, 621 (Fla. 2d DCA
1998)).

Accordingly,

plaintiff

has

not

established

that

the

Amended Complaint relates back to the original complaint under
Fed. R. Civ. P. 15(c)(1)(A).
III.
In the alternative, Deputy Pepin seeks certification under 28
U.S.C. § 1292(b) of the relation back and statute of limitations
defense. Because the Court has granted Deputy Pepin’s Motion for
Reconsideration and would grant his Motion for Summary Judgment as
to the statute of limitations issue, his request is denied as moot.
Accordingly, it is hereby
ORDERED:
1. Defendant’s

Motion

for

Reconsideration,

or

in

the

Alternative for § 1292(b) Certification (Doc. #180) is
GRANTED as to reconsideration.

Upon reconsideration, the

Motion For Summary Judgment (Doc. # 113) is GRANTED as to
statute of limitations issue.

The Clerk shall withhold

entry of judgment until after the case is returned from
the Eleventh Circuit.

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2. Defendant’s

alternative

Motion

for

Certification

(Doc.

#180) is DENIED as moot.
DONE and ORDERED at Fort Myers, Florida, this
November, 2020.

Copies:
Counsel of Record
Eleventh Circuit

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5th

day of