Cote et al v. Hopp et al
Filing
128
ORDER granting 109 110 Motion for Reconsideration; denying 113 Supplemental Motion for Leave to File the Revised Complaint as of 7/15/2011; Plaintiffs' Amended Complaint 115 is Stricken; denying 117 Plaintiffs' Motion for Order to Revive Plaintiffs' Motion for Summary Judgment; and finding as moot 121 Defendants' Motion to Strike. Entered by Judge Michael M. Mihm on 9/14/2011. (cc: Pro Se Plfs)(RK, ilcd)
E-FILED
Wednesday, 14 September, 2011 01:20:26 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
EVELYN COTE and ALFRED COTE,
)
)
Plaintiffs,
)
)
v.
)
)
TOM HOPP, SARAH HOUSTON, SCOTT )
COWSER, DAN LEEZER, JAMES
)
DROZDZ, BRIAN HUNTER, JANE DOE, )
JOHN DOE,
)
)
Defendants.
)
Case No. 09-01060
ORDER
Now before this Court are (1) Plaintiffs Evelyn and Alfred Cote’s (“the Cotes”)
Supplemental Motion for Leave to File the Revised Complaint [#113]; (2) Defendants
Tom Hopp’s and Sarah Houston’s Motion for Reconsideration [#109]; (3) Defendant Dan
Leezer’s Motion for Reconsideration [#110]; (4) Plaintiffs’ Motion for Order to Revive
Plaintiffs’ Motion for Summary Judgment [#117]; (5) Plaintiffs’ Affidavit in Opposition
to the Motion for Summary Judgment [#119], Plaintiffs’ Memorandum of Law in
Opposition to the Motion for Summary Judgment [#120], and Plaintiffs’ Objection to the
Motion for Summary Judgment [#122]; and (6) Defendant Tom Hopp’s and Sarah
Houston’s Motion to Strike Plaintiffs’ Motion for Summary Judgment [#121].
For the reasons stated for herein, Plaintiffs’ Amended Complaint [#115] is
STRICKEN.
Defendants’ Motions [#109, 110] are GRANTED.
Plaintiffs’
Supplemental Motion for Leave to File the Revised Complaint as of 7/15/2011 [#113] is
DENIED.
Plaintiffs’ Motion for Order to Revive Plaintiffs’ Motion for Summary
Judgment [#117] is DENIED.
Because Plaintiffs’ Opposition to the Motion for Summary Judgment [#119],
Plaintiffs’ Memorandum of Law in Opposition to the Motion for Summary Judgment
[#120], and Plaintiffs’ Objection to the Motion for Summary Judgment [#122] all attack
Motions that are herein denied, these documents need no further consideration.
Defendants’ Motion to Strike Plaintiffs’ Motion for Summary Judgment [#121] is MOOT
as there are no pending dispositive motions. Parties have 14 days from the date of this
Order to file a dispositive motion, if any. Any dispositive motions must conform to
Local Rule 7.1. Likewise, any responses and replies to such dispositive motions shall be
filed in accordance with Local Rule 7.1.
BACKGROUND
Plaintiffs filed their pro se Complaint on February 17, 2009, and this case was
assigned to Judge Harold A. Baker. After determining that the case was not a prisoner
case and after denying Plaintiffs’ petition to proceed in forma pauperis, this case was
transferred to Judge Michael M. Mihm on May 24, 2009.
On or around June 23, 2007, Plaintiffs’ son was driving his brother’s car when he
was pulled over and arrested by Scott Cowser (“Cowser”), a Hancock County Deputy
Sheriff, for driving with a suspended license. Defendant Officer Tom Hopp (“Hopp”), , a
Nauvoo police officer, arrived and remained with the car for the towing truck to arrive.
While Officer Hopp was waiting, Plaintiffs arrived and told Officer Hopp that they had
come to retrieve the car. At this time, Jason Zenk (“Zenk”), a tow truck operator, arrived
and would not allow Plaintiffs to take the car without paying the towing fee in cash. An
argument ensued, and the Cotes informed Zenk and Hopp that they would be filing a civil
suit over the dispute.
About a week later, in early July 2007, arrest warrants issued, charging the Cotes
with obstructing a peace officer during the towing incident of June 23, 2007. The factual
allegations against Mr. Cote stated the Mr. Cote took the car’s ignition key and turned the
wheels of the car, preventing the car from being towed. It remains unclear what the
factual basis was for the arrest warrant against Mrs. Cote. On July 7, 2007, Defendant
Officers Sarah Strope (formerly known as Sarah Stuecker and Sarah Houston) and Dan
Leezer arrived at Plaintiffs’ home, allegedly broke down the front door, and arrested the
Cotes. Defendant Leezer also allegedly injured Mr. Cote while executing the arrest. In
preparation for trial, State’s Attorney James Drozdz, Assistant State’s Attorney Hunter,
and Defendant Officer Hopp allegedly edited information obtained in discovery in order
to build a case against the Cotes. Plaintiffs were ultimately acquitted in a jury trial on
July 15, 2009.
After filing their Complaint on February 17, 2009, Plaintiffs have since filed
several Amended Complaints [#6, 22, 28], the most recent of which was filed on
November 13, 2009.
On April 1, 2010, this Court adopted the Report &
Recommendation of Magistrate Judge Byron Cudmore, dismissing Plaintiffs’ following
claims: (1) Fourth Amendment claim by Mrs. Cote against Defendant Strope other than
for breaking a door; (2) claims against Defendant Faulkner; (3) claims against the City of
Nauvoo for failure to train; (4) conspiracy to commit false arrest; (5) claims under the
Illinois Eavesdropping Statute and the federal eavesdropping provisions of 28 U.S.C.
§ 2511; (6) claims under the American Disabilities Act; (7) federal claim for malicious
prosecution; (8) federal claim for blocking access to the court; and (9) state law claims
for false imprisonment, false arrest, defamation, intentional infliction of emotional
distress, and failure to train/supervise employees.
As of April 1, 2010, Plaintiffs retained the following claims: (1) Fourth
Amendment claim by Mr. Cote against Defendant Leezer based on excessive force
incident to arrest; (2) Fourth Amendment claim by both Plaintiffs against Defendant
Strope for damage to their door incident to arrest; (3) Fourth Amendment claims by both
Plaintiffs against Defendants Hopp and Drozdz for false arrest; (4) state law battery claim
by Mr. Cote against Defendant Leezer; and (5) state law malicious prosecution claim by
both Plaintiffs against Defendants Hopp, Drodz, and Hunter. Defendants Drozdz and
Hunter have since settled with Plaintiffs.
On August 15, 2011, Plaintiffs filed a Motion for Leave to File an Amended
Complaint [#103], which this Court granted on August 22, 2011.
The proposed
Amended Complaint, however, contained several already dismissed parties and claims.
The Court, therefore, entered a text order on the same day, refusing to file the proposed
Amended Complaint and ordering Plaintiffs to file a revised Amended Complaint,
deleting all previously dismissed claims and parties. Defendants Hopp, Houston, and
Leezer filed two separate Motions to Reconsider [#109, 110]. Before Plaintiffs were
notified of this Court’s Order requiring them to file a revised Amended Complaint,
Plaintiffs also filed a Supplemental Motion for Leave to File [#113].
On August 31, 2011, Plaintiffs filed the revised Amended Complaint, which still
contains previously dismissed claims and previously terminated parties. Plaintiffs also
allege new causes of action against a new party as well as new causes of action against
remaining parties. Plaintiffs also filed a Motion for Order to Revive Plaintiffs’ Motion
for Summary Judgment [#117], which appeared in their earlier attempt to file an
Amended Complaint.
On September 9, 2011, Plaintiffs filed their Affidavit in Opposition to the Motion
for Summary Judgment [#119] and their Memorandum of Law in Opposition to the
Motion for Summary Judgment [#120]. That same day, Defendant Hopp filed his Motion
to Strike Plaintiffs’ Motion for Summary Judgment [#121]. On September 12, 2011,
Plaintiffs filed their Objection to the Motion for Summary Judgment [#122].
This
consolidated Order follows, resolving these disputes.
DISCUSSION
Under Federal Rule of Civil Procedure 15(a), plaintiffs may amend their
complaint once “as a matter of course at any time before a responsive pleading is
served;” at any other time “leave [to amend] shall be freely given when justice so
requires.” A plaintiff’s right to amend as a matter of course is not, however, absolute.
See Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991). When examining whether
to grant a motion for leave to amend, the Court must consider if the proposed amendment
fails to cure the deficiencies in the original pleading or if it could not survive a motion to
dismiss. Timas v. Klaser, 23 Fed.Appx. 574, 578 (7th Cir. 2001) (quoting Perkins, 939
F.2d at 472)).
Plaintiffs’ most recent attempt to file an Amended Complaint does not fully
comply with this Court’s 8/22/2011 Text Order, ordering the Plaintiffs “to file a copy of
their proposed Amended Complaint, deleting the names of all previously terminated
defendants as well as the claims against them.” While Plaintiffs did redact several already
dismissed claims, they also failed to redact the following items: (1) paragraphs 14, 15,
and 19 pertaining to the Illinois Eavesdropping Statute and the federal eavesdropping
provisions of 18 U.S.C. § 2511; (2) the City of Nauvoo as a party; (3) portions of
paragraphs 6 and 16 referring to claims for “false imprisonment;” and (4) portions of
paragraph 16 and paragraphs 13 and 17 referring to a claim for conspiracy to commit
false arrest and excessive force. These claims were dismissed on April 1, 2010. While
this Court stated that the Plaintiffs could file a motion seeking relief to amend their
complaint in the event of newly discovered evidence in its April 15, 2010, Text Order,
nothing before this Court allows Plaintiffs to revive these claims nor to revive their claim
against the City of Nauvoo.
Furthermore, Plaintiffs attempt to state the following new claims: (1) claims
against John McCarty, the Mayor of Nauvoo, Illinois and the Chief of Police in summer
of 2007, who was previously named as a “John Doe,” and (2) claims that Tom Hopp and
Scott Cowser conspired with Sarepta Wilson to set up the traffic stop, create the false
arrest, commit malicious prosecution, and commit false imprisonment.
Federal Rule of Civil Procedure 15(c)(3) permits an amendment to relate back to
the original complaint only “where there has been an error made concerning the identity
of the proper party and where that party is chargeable with knowledge of the mistake.”
This Rule applies to situations in which a plaintiff names a John Doe defendant or a
mistakenly named party. This Rule does not apply, however, where “there is a lack of
knowledge of the proper party.” Baskin v. City of Des Plaines, 138 F.3d 701, 704 (7th
Cir, 1998) (quoting Delgado-Brunet v. Clark, 93 F.3d 339, 344 (7th Cir. 1996)). In this
case, Plaintiffs did not make a mistake concerning McCarty’s identity. Instead, Plaintiffs
did not know the identity of the John Doe mentioned in their initial Amended
Complaints. As Plaintiffs did not amend their complaint to name McCarty until after the
discovery deadline lapsed and until after the statute of limitations had expired, the claim
against McCarty cannot be allowed.
Similarly, the conspiracy claim stated in paragraph 18 alleges new facts that
would necessitate re-opening discovery and causing undue delay and prejudice. See
Sanders v. Venture Stores, Inc., 56 F.3d 771, 773 (7th Cir. 1995). Furthermore, Plaintiffs
seek to file this new conspiracy claim outside of both the federal and the state statute of
limitations. Thus, this claim would be improper at this stage. Additionally, the revised
Amended Complaint makes the existing claims more difficult to understand and confuses
the remaining issues. Allowing this Amended Complaint to be filed would unduly
prejudice the defendants in defending against these claims, and would unduly delay the
continuation of the case. As Plaintiffs failed to fully comply with this Court’s Text Order
requiring them to file a revised Amended Complaint without reference to previously
dismissed claims and parties and, instead, sought to bring new claims against new parties,
Plaintiff’s revised Amended Complaint [#115] must be stricken.
The Court is mindful that a pro se litigant should be given every opportunity to
amend their claims. In this case, however, Plaintiffs have given the Court no reason to
believe that they will comply with the Court’s directive to eliminate the claims and
parties that have been previously dismissed or terminated. Furthermore, as discovery has
closed in this case and the statute of limitations has passed on state law claims arising
from the 2007 incidents, new claims are not appropriately raised at this time. Plaintiffs
are not prohibited from requesting leave to amend their complaint, should it be
appropriate. Unless and until Plaintiffs seek leave and are granted as such, the parties are
notified that the following claims remain:
(1)
Fourth Amendment claim by Mr. Cote against Defendant Leezer
based on excessive force incident to arrest;
(2)
Fourth Amendment claim by both Plaintiffs against Defendant
Strope for damage to their door incident to arrest;
(3)
Fourth Amendment claims by both Plaintiffs against Defendant
Hopp for false arrest;
(4)
state law battery claim by Mr. Cote against Defendant Leezer; and
(5)
state law malicious prosecution claim by both Plaintiffs against
Defendant Hopp.
CONCLUSION
For the reasons stated for herein, Plaintiffs’ Amended Complaint [#115] is
STRICKEN. Defendants’ Motions [#109, 110] are GRANTED. Plaintiffs’
Supplemental Motion for Leave to File the Revised Complaint as of 7/15/2011 [#113] is
DENIED. Plaintiffs’ Motion for Order to Revive Plaintiffs’ Motion for Summary
Judgment [#117] is DENIED as the Motion for Summary Judgment did not conform with
Local Rule 7.1. Defendants’ Motion to Strike Plaintiffs’ Motion for Summary Judgment
[#121] is MOOT as there are no pending dispositive motions.
Entered this 14th day of September, 2011.
By: s/Michael M. Mihm
United States District Court Judge
Central District of Illinois
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