King v. Marcy et al

Filing 72

ORDER denying re 71 Motion for Clarification of 68 Order on Motion to Dismiss, Order on Motion to Strike, Order on Motion for Default Judgment. Signed by District Judge R. Stan Baker on 2/28/19. (loh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

ROXANNE KING; and STACY GRADY,
individually and as next friend of her three
minor children,
Plaintiffs,

CIVIL ACTION NO.: 2:17-cv-112

v.
PARKER MARCY, et al.,
Defendants.

ORDER
This matter is before the Court on Plaintiffs’ Motion for Clarification, (doc. 71), of the
Court’s February 19, 2019 Order, (doc. 68). Two directives in the February 19, 2019 Order are
relevant to Plaintiffs’ Motion for Clarification. First, the Court ordered Plaintiffs to file a
comprehensive operative complaint that identifies all Defendants by their full names, as Plaintiffs
had failed to include the first names of several Defendants in their prior pleadings. 1 (Id. at pp. 89.) Notably, the Court emphasized in the Order that “[t]his is not an opportunity for Plaintiffs to
assert new claims or name new defendants.” (Id. at p. 9.) The Court also held that service on
Defendant Butler was insufficient. 2 (Id. at p. 19.) Because Defendant Butler had actual knowledge
of the lawsuit and the statute of limitations could bar refiling of the action against him, the Court
declined to dismiss Defendant Butler from the case and instead (reluctantly) provided Plaintiffs

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For example, Plaintiffs identified the Defendant who is the focus of the Motion for Clarification as
“Officer ____ Butler.”

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Plaintiffs left copies of Defendant Butler’s Summons and Complaint at the Glynn County Police
Department with an officer who was not authorized to accept service on Defendant Butler’s behalf.

with an extension of time to fulfill their duty to properly serve Defendant Butler. (Id. at pp. 14,
19.) The Court ordered that both tasks be completed within seven days from the entry of the Order,
making the deadline February 26, 2019. (Id. at p. 19.)
On February 26, 2019 (the Court-imposed deadline), Plaintiffs filed a Motion for
Clarification. (Doc. 71.) In their Motion, Plaintiffs explain that
“Eric Butler, who has been deposed [and is actively defending himself in the case]
. . . testified that he had nothing to do with the events which are the subject of this
action, and the Plaintiffs stated in their response to the Motion for Summary
Judgment [filed by Butler and other Defendants] that the record appeared to justify
dismissal of Eric Butler.”
(Id. at p. 1.) Plaintiffs then state “[a]nother Officer Butler was involved in the subject incident,
but he has never been named or served.” (Id. at p. 2 (emphasis added).) As a result, Plaintiffs
claim they “need clarification as to whether the Court intends for the Plaintiffs to name Eric Butler
in the Amended Complaint or whether the Court is directing the Plaintiffs to name the correct
Glynn County police officer with the ‘Butler’ surname.” 3 (Id. at p. 2.)
In his Motion to Dismiss, Defendant Butler noted that several other officers share his last
name. (Doc. 33, p. 1.) Despite having ample opportunity to do so prior to the Court’s ruling on
Defendant Butler’s Motion, Plaintiffs never addressed the existence of or their potential need to
add or substitute another Officer Butler. In fact, Plaintiffs have thus far proceeded as if Eric
Butler—the individual who has actively participated in the lawsuit by filing motions and sitting
for a deposition—was indeed the “Officer ___ Butler” whom they intended to sue all along.
Indeed, in their Response to his Motion to Dismiss, Plaintiffs referred to “Eric Butler” as “the
Defendant.” (Doc. 35.) Though the discovery period has expired and Defendants have filed a

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Notably, this is the first time Plaintiffs have brought the alleged existence of an “other” Officer Butler to
the Court’s attention. When the February 19, 2019 Order was entered, the Court was only aware that
Plaintiffs did not oppose the entry of summary judgment as to Eric Butler, which the Court noted in a
footnote. (Doc. 68, p. 14 n.4.) The Motion for Summary Judgment, (doc. 62), remains pending.
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Motion for Summary Judgment, Plaintiffs have not made any efforts to substitute or otherwise add
the “other” Officer Butler into this case—that is, until now.
In sum, at the time the Order was entered, Eric Butler was, by all accounts, the intended
Defendant “Officer ___ Butler.” Given that context, the Court’s February 19, 2019 Order requires
Plaintiffs to file a comprehensive complaint which, inter alia, identifies Eric Butler by his full
name, and the Court is frankly befuddled as to why Plaintiffs need clarification regarding whether
the Court was instead directing them to name the “other” Officer Butler as a defendant in this case.
Accordingly, the Court DENIES Plaintiffs’ Motion, (doc. 71).
The Court finds it prudent to, once again, address Plaintiffs’ counsel’s disregard for the
Federal Rules of Civil Procedure, this Court’s Local Rules, and general professionalism. Plaintiffs
created the opportunity for the very situation in which they now find themselves. The individual
they intended to sue was identified in their pleadings only as “Officer ____ Butler,” and a copy of
the Summons and Complaint addressed to “Officer ____ Butler” was (improperly) left with a third
party and it ended up in the hands of Eric Butler. Despite their claim now that Eric Butler was not
the intended “Officer ___ Butler,” Plaintiffs have made no effort in the fourteen months since they
filed their claim to clarify the specific individual they intended to hold liable (much less have they
made any efforts to serve that individual). Furthermore, Plaintiffs’ attempt to substitute in a new
individual as a defendant at the eleventh hour is the very tactic the Court was seeking to prevent
by requiring Plaintiffs to file a comprehensive complaint specifying the first names of each of the
officers against whom they have been litigating. Indeed, Plaintiffs’ Motion for Clarification
appears to be little more than an attempt to circumvent the proper procedures for adding and
serving a new defendant. Allowing a different person—one who has not been involved in this
action in the year and a half that it has been pending—to be served now—without making the

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motion and showing required under the Federal Rules of Civil Procedure and this Court’s Local
Rules—would fly in the face of those Rules and would unjustly allow Plaintiffs to profit from their
counsel’s indolence. If Plaintiffs wish to have the “other” Officer Butler as a defendant in this
case, they must file a motion and make the showings necessary under all applicable Rules.
Finally, Defendant Eric Butler’s Motion for Summary Judgment remains pending before
the Court and Plaintiffs’ statement conceding no liability on Eric Butler’s part did not terminate
him as a party to this action. As such, Plaintiffs are required to comply with all mandates imposed
by Order of the Court and by the Federal and Local Rules as to Defendant Butler. If Plaintiffs do
not believe Eric Butler has any liability in this case and do not wish to be burdened by these
requirements, they may move to dismiss him as a Defendant as provided by the Federal Rules of
Civil Procedure and the Local Rules.
SO ORDERED, this 28th day of February, 2019.

R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

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