Jones v. Mercure

Filing 20

OPINION AND ORDER that Plaintiff's 12 Motion for Leave to File a Second Amended Complaint is GRANTED. IT IS FURTHER ORDERED that Plaintiff shall SHOW CAUSE, on or before March 9, 2015, why he should not be sanctioned under Rule 11(b) of the Fe deral Rules of Civil Procedure for failing to plead in his original and Amended Complaints, the new facts he asserts in the Second Amended Complaint to support an excessive force claim, and why he should not be sanctioned for the representations he made in his Motion to Amend that the Amended Complaint was mistakenly filed with only a change to the title of the pleadings. IT IS FURTHER ORDERED that Defendants 6 and 10 Motions to Dismiss the Complaint and the Amended Complaint are DENIED AS MOOT. IT IS FURTHER ORDERED that the parties shall file, on or before March 9, 2015, their initial disclosures and a Joint Preliminary Report and Discovery Plan. Signed by Judge William S. Duffey, Jr on 2/25/2015. (anc)

Plaintiff’s Complaint is based on his arrest for the possession of crack cocaine after
Plaintiff swallowed a bag contained in a pack of cigarettes that Defendant observed
in Plaintiff’s vehicle. Plaintiff alleges that Defendant applied excessive force on
Plaintiff in an attempt to retrieve the bag from Plaintiff’s mouth.
On March 25, 2014, Defendant moved to dismiss the original Complaint on
the grounds that Defendant is entitled to (1) qualified immunity from Plaintiff’s
claims based on federal law, and (2) official immunity from Plaintiff’s claims
based on state law.
Two weeks later, on April 7, 2014, Plaintiff filed his two-count (2) Amended
Complaint, in which he asserted claims against Defendant for (1) excessive force
under the Fourth Amendment to the United States Constitution, and (2) a state law
claim for battery under Georgia law. The next day, on April 8, 2014, Defendant
filed his second Motion to Dismiss, seeking to dismiss the Amended Complaint on
the same grounds that he moved to dismiss Plaintiff’s original Complaint.
On April 10, 2014, Plaintiff filed his Response to the Motion to Dismiss in
which he stated that “he is filing a motion to amend with a proposed amended
complaint today” that moots Defendant’s Motion to Dismiss the Amended
Complaint. Pl.’s Resp. to Mot. to Dismiss at 1. Plaintiff did not respond to the
arguments raised in Defendant’s Motion to Dismiss the Amended Complaint.

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On April 10, 2014, Plaintiff moved for leave to file a Second Amended
Complaint, in which he stated that “the amended complaint [filed on April 7, 2014]
is not the amended complaint he meant to file, but the same pleading as the
original complaint, albeit with the word ‘amended’ added to the caption.” Mot. to
Am. at 1. The Second Amended Complaint does not add new claims or parties,
but it contains new facts in support of the excessive force claim that were not pled
in Plaintiff’s original and Amended Complaints.
On April 17, 2014, Defendant responded to the Motion to Amend.
Defendant asserts that (1) there are substantial differences between Plaintiff’s
complaints, and (2) the Motion to Amend should be denied because Plaintiff
engaged in undue delay, and Defendant will be prejudiced if the Court allows the
Second Amended Complaint to be filed.
Plaintiff’s original Complaint in this matter, filed on November 26, 2013,
alleged the following facts pertinent to his excessive force claim:
After being placed in handcuffs Officer Mercure began to choke Mr.
Jones ordering him to “spit it out.” He then tripped Mr. Jones and
again choked Mr. Jones while he was on the ground. After he was
choked, Mr. Jones requested a supervisor on the scene and stated
Officer Mercure “choked him.”
Compl. at ¶ 7.
Three and a half months later, on April 7, 2014, Plaintiff filed his Amended

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Complaint of right under Rule 15(a) of the Federal Rules of Civil Procedure. In
the Amended Complaint, Plaintiff alleged the following facts pertinent to his
excessive force claim:
Defendant notified Grady EMS immediately. Officer Mercure
noticed Mr. Jones had the plastic bag containing the crack cocaine
was under Mr. Jones’ tongue. Officer Mercure grabbed Mr. Jones’
jaw to prevent him from swallowing the plastic bag. Officer Mercure
and Mr. Jones fell to the ground. After the tussle, Mr. Jones requested
a supervisor on the scene and stated Officer Mercure “beat him up.”
Am. Compl. at ¶ 7.
On April 10, 2014, in an apparent response to Defendant’s Motion to Dismiss the
Amended Complaint filed on April 8, 2014, Plaintiff requested leave to file a
Second Amended Complaint, in which he sought to allege the following facts
pertinent to his excessive force claim:
After being placed in handcuffs Officer Mercure requested that Mr.
Jones turn back around and stick out his tongue. There was nothing in
Mr. Jones’ mouth. After observing nothing in Mr. Jones’ mouth,
Officer Mercure grabbed Mr. Jones by the throat and began to choke
Mr. Jones ordering him to “spit it out.” After choking Mr. Jones
while standing up, Officer Mercure then tripped Mr. Jones forcing Mr.
Jones to land face down. While lying face down, Officer Mercure
straddled Mr. Jones’ back and again choked Mr. Jones while he was
lying face down on the ground with thumbs in the back and fingers in
front. While choking Mr. Jones a second time from the back, Officer
Mercure told Mr. Jones that he was going to die. After he was choked,
Mr. Jones requested a supervisor on the scene and stated Officer
Mercure “choked him.” . . . Defendant notified Grady EMS
immediately. Officer Mercure noticed Mr. Jones had the plastic bag
containing the crack cocaine was under Mr. Jones’ tongue. Officer
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Mercure grabbed Mr. Jones’ jaw to prevent him from swallowing the
plastic bag. Officer Mercure and Mr. Jones fell to the ground. After
the tussle, Mr. Jones requested a supervisor on the scene and stated
Officer Mercure “beat him up.”
Second Am. Compl. at ¶¶ 7-8.
II.

DISCUSSION
A.

Legal Standard

Rule 15(a) of the Federal Rules of Civil Procedure allows a plaintiff to file
one amended complaint as a matter of course, if the amended complaint is filed
either within 21 days of service of the original complaint or within 21 days of the
defendant’s filing of a responsive pleading or Rule 12 motion to dismiss. See Fed.
R. Civ. P. 15(a)(1). Amended complaints outside of these time limits may be filed
only “with the opposing party’s written consent or the court’s leave.” See Fed. R.
Civ. P. 15(a)(2). The Rule provides that “[t]he court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2). “In the absence of any apparent or
declared reason—such as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.—the leave sought should, as the rules
require, be ‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962).

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B.

Analysis

“The decision whether to grant leave to amend is within the sound discretion
of the trial court.” Loggerhead Turtle v. County Council of Volusia County, Fla.,
148 F.3d 1231, 1257 (11th Cir. 1998) (internal quotation marks and citations
omitted). Defendant argues that he will be prejudiced if Plaintiff is allowed to file
a Second Amended Complaint because he “will have to respond for a third time,
and the Plaintiff has had an opportunity to view the Defendant’s immunity
defenses thus giving Plaintiff a second bite at the apple to add additional claims
and potential parties.” Def.’s Resp. to Mot. to Am. at 6. Defendant also argues
that allowing the amendment is prejudicial because it forced Defendant to
“constantly respond to a moving target.” Id.
Plaintiff had a right to file an Amended Complaint because Plaintiff
amended his Complaint within twenty one (21) days after Defendant moved to
dismiss the original Complaint. See Fed. R. Civ. P. 15(a)(1). A district court does
not have discretion to not permit a plaintiff to amend the complaint as a matter of
right. See Toenniges v. Georgia Dept. of Corrections, 502 F. App’x 888, 890 (11th
Cir. 2012). Plaintiff has requested the Court’s permission to amend his Complaint
only once. “Ordinarily, a party must be given at least one opportunity to amend
before the district court dismisses the complaint.” Langlois v. Travelers Ins. Co.,

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401 F. App’x 425, 426 (11th Cir. 2010).
On March 14, 2014, Defendant was served with the original Complaint. On
March 25, 2014, Defendant moved to dismiss the original Complaint. On April 7,
2014, Plaintiff amended his Complaint as a matter of right. Three days later,
Plaintiff requested the Court’s permission to file a Second Amended Complaint.
This short period of time between the amendments does not constitute undue delay.
See Bryant v. Dupree, 252 F.3d 1161, 1164 (11th Cir. 2001) (“The lengthy nature
of the litigation, without any other evidence of prejudice to the defendants or bad
faith on the part of the plaintiffs, does not justify denying the plaintiffs the
opportunity to amend their complaint.”). Burger King v. Weaver, 169 F.3d 1310,
1321 (11th Cir. 1999) (noting that delay in the proceedings becomes undue if the
amendment delays trial or the addition of a claim reopens the pre-trial process).
Mere inconvenience to a party does not constitute undue prejudice because
“there is invariably some practical prejudice resulting from an amendment.”
Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971). Prejudice to a defendant from
an amendment is typically found if the amendment (1) results in significant
expense in conducting additional discovery or preparing for trial, (2) deprives the
non-moving party of the ability to assert a claim or a defense, or (3) significantly
delays the resolution of the dispute. See Synthes, Inc. v. Marotta, 281 F.R.D. 217,

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228 (E.D. Pa. 2012); Formosa Plastics Corp., U.S.A. v. ACE American Ins. Co.,
259 F.R.D. 95 (D.N.J. 2009); CP Solutions PTE, Ltd. v. General Elec. Co.,
237 F.R.D. 534 (D. Conn. 2006);; Zubulake v. UBS Warburg LLC, 231 F.R.D. 159
(S.D. N.Y. 2005).
Plaintiff requested the Court’s permission to file a Second Amendment
Complaint only three days after the Amended Complaint was filed. Discovery has
not commenced in this matter and a trial date has not been set.
See Reese v. Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008) (affirming the denial
of a motion for leave to amend that was filed nearly seven weeks after the close of
discovery). The Second Amended Complaint does not add additional parties or
claims, and the additional facts raised in the Second Amended Complaint do not
affect Defendant’s ability to raise its defenses. The Court concludes that
Defendant will not be prejudiced if Plaintiff is allowed to file a Second Amended
Complaint. Plaintiff’s Motion for Leave to File a Second Amended Complaint is
granted.
The Court, however, is troubled by the procedural history of this case. In his
Motion to Amend the Complaint filed on April 10, 2014, Plaintiff claims that the
Amended Complaint filed on April 7, 2014, “[was] not the amended complaint he
meant to file, but the same pleading as the original complaint, albeit with the word

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‘amended’ added to the caption.” Mot. to Am. at 1. A comparison of Plaintiff’s
original and Amended Complaints above makes it plain that Plaintiff’s
representation is not credible.
Plaintiff did not state in his previous complaints that Defendant straddled his
back, choked Plaintiff while he was lying face down on the ground with thumbs in
the back and fingers in front, and threatened Plaintiff that “he was going to die.”
Second Am. Compl. at ¶¶ 7-8. Plaintiff does not explain why these additional facts
were not discovered and pled in his previous complaints. Plaintiff did not offer a
justification for failing to include facts that support his excessive force claim in his
original and Amended complaints even though he should have been aware of the
facts required to assert his claims.
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File a

Second Amended Complaint is GRANTED [12].
IT IS FURTHER ORDERED that Plaintiff shall SHOW CAUSE, on or
before March 9, 2015, why he should not be sanctioned under Rule 11(b) of the
Federal Rules of Civil Procedure for failing to plead in his original and Amended
Complaints, the “new” facts he asserts in the Second Amended Complaint to

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support an excessive force claim, and why he should not be sanctioned for the
representations he made in his Motion to Amend that the Amended Complaint was
mistakenly filed with only a change to the title of the pleadings.
IT IS FURTHER ORDERED that Defendant’s Motions to Dismiss the
Complaint and the Amended Complaint are DENIED AS MOOT [6, 10].
IT IS FURTHER ORDERED that the parties shall file, on or before
March 9, 2015, their initial disclosures and a Joint Preliminary Report and
Discovery Plan.

SO ORDERED this 25th day of February, 2015.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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